Siri Ram vs Lal Chand

Dr. (Mrs.) Sarojnei Saksena, J.

Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure (in short, the Code) for quashment of proceedings initiated against them under Section 145 and the order passed under Section 146(1) of the Code.

Brief backdrop of the case is that petitioners are tenants of respondents. Respondents filed ejectment petition against the petitioners and their father in the Court of Assistant Collector I Grade who passed the ejectment order against the petitioners on 31.10.1969. Petitioners filed appeal before the Collector, Ferozepur, which was allowed on 28.12.1970. The respondents managed to recover possession of the disputed land from the petitioners on the basis of the ejectment order passed by the Assistant Collector I Grade. Respondents filed an appeal against the order of Collector in the Court of Commissioner, which was accepted by him on 2.5.1973. Petitioners filed appeal against the order of Commissioner before the Financial Commissioner, which was accepted on 9.8.1973 and thus, the orders passed by the Assistant Collector I Grade and of the Commissioner were set aside and the case was remanded to the Assistant Collector for fresh decision.

Respondents filed the writ petition in the High Court against the order of the Financial Commissioner which was also dismissed on 17.3.1981. They also filed LPA against that judgment, which was also dismissed on 17.9.1985. Thereafter, the petitioners filed the petition under Section 144 of the Code for restoration of possession read with provisions of the Punjab Tenancy Act. Respondents filed objections against the said restoration of possession, but the Assistant Collector I grade vide his order dated 21.1.1986 rejected the respondents'' objections. Petitioners'' petition filed under Section 144 of the Code was allowed. Respondents filed appeal against the said order, which was dismissed by the Collector on 8.4.1986. Vide repeat roznamcha No. 398 dated 27.5.1986, possession of the disputed land was re delivered to the petitioners under the warrant of possession issued by the Assistant Collector.

Petitioners have alleged that after having all these bouts of litigation in the revenue Courts, on 14.6.1986 petitioners filed an application under Section 145 of the Code with regard to the disputed land in the Court of S.D.M., Abohar. JUDGMENT under Section 145 of the Code was passed on 8.7.1986 and on 28.11.1986 the learned SDM passed the order under Section 146 of the Code. In this order, he has mentioned that "the applicants (respondents) have placed on record the copy of jamabandi for the year 198283 and khasra girdawari for kharif 1985 and rabi 1986. The respondents (petitioners) produced the copy of rapt roznamcha No. 398 dated 27.5.1986. After perusing the record, I am of the view that there can be apprehension of dispute between the parties regarding possession of land........" Further observing that "breach of peace can take place at any time," he attached the disputed land and appointed girdawar halqa as receiver.

Petitioners assailed this order by filing criminal revision No. 2 of 1987 in the Court of Shri Iqbal Singh, Additional Sessions Judge, Ferozepur. The learned Additional Sessions Judge passed the order Annexure P3 and dismissed the revision on the ground that the impugned order passed under Section 146(1), Code of Criminal Procedure, is only an interlocutory order against which revision under Section 397(2) Code of Criminal Procedure, is not maintainable.

Petitioners'' learned counsel has vehemently argued that in pursuance of the orders passed by the various revenue Courts, which were affirmed by the High Court also, after such a long litigation the petitioners could get possession of the disputed land on 27.5.1986 vide rapat roznamcha No. 398 of this date. Thereafter, on 14.6.1986 these respondents mischievously filed the petition under Section 145 of the Code. The SDM without applying his mind has passed both these orders, Annexures P1 and P2, under Section 145(1) and 146(1) of the Code; therefore, he prays that these orders are unsustainable and should be quashed.

The order made under Section 145 of the Code deals only with the factum of possession of the party as on a particular date; it confers no title but to remain in possession of the disputed property. The order is subject to the decision of the civil Court. In this case, it is obvious that there was no dispute with regard to possession of the disputed property. Under the orders of the revenue Court, the possession was redelivered to the petitioners on 27.5.1986. If the respondents were having any grudge against delivery of possession of the disputed land to the petitioners, they would have taken any other legal remedy, but initiation of proceedings under Section 145 of the Code were not warranted at all. The SDM has not mentioned in the impugned order, Annexure P2, as to how he thinks that there can be apprehension of dispute and breach of peace and if at all, he was of the view that there can be a breach of peace, he could have initiated the proceedings under Sections 107/151 of the Code. It was not a case where it was doubtful as to on the date the proceedings under Section 145 of the Code were initiated, which party was in possession of the disputed property. Petitioner produced copy of rapat roznamcha No. 398 dated 27.5.1986 before the learned SDM that was a conclusive proof that they are in possession of the disputed property. The correctness of that rapat roznamcha was not disputed by the respondents before the SDM as in the impugned orders there is no mention of any such dispute.

Hence, in my considered view, under the aforementioned facts and circumstance of the case, the SDM fell into a patent error in initiating proceedings under Section 145 of the Code and in passing the order under Section 146(1) of the Code. Proceedings initiated under Section 145 of the Code and orders, Annexure P1 and P2 are hereby quashed.