Smt. Vidyotma Devi vs Arjun Prasad and Others

Nagendra Rai, J.—The second party-Petitioner in a proceeding u/s 145 of the Code of Criminal Procedure (hereinafter referred to as the Code) has filled the present application for dropping the proceeding primarily on the ground that in view of the pendency of the title suit being Title Suit No. 438/88 with regard to the land in dispute in the court of Munsif, Siwan, the proceeding is not maintainable in law. The learned single Judge of this Court has referred the matter to a Division Bench to consider as to whether the decision rendered by the Division Bench of this Court in the case of Most. Shamrati Kuer and Others Vs. Janki Saran Singh, is still a good law in view of the judgment of the Supreme Court in the case of Ram Sumer Puri Mahant Vs. State of U.P. and Others,

With a view to appreciating the point involved in this case the necessary facts are as follows:

The disputed land measures 1 Katha 12 Dhur and 2 Dhurkis consisting of Survey plot Nos. 390 and 391 under Khata No. 131 in village Mahadewa, P.S. Mahadewa, District Siwan, over which two residential flats has been constructed. The first party-opposite party claims the aforesaid land by virtue of a registered deed of gift executed by Chandeshwar Prasad on 7.12.87 and registered on 19.3.88 after his death on 19.3.88. The second party Petitioner who is the widow of late Chandeshwar Prasad claims the property on her behalf as well as on behalf of her minor sons as legal heirs of late Chandeshwar Prasad after his death.

The first party-opposite party filed an application before the learned Magistrate claiming possession over the land and alleged apprehension of breach of peace at the hands of the second party-Petitioner.

The learned Sub-Divisional Magistrate initiated a proceeding u/s 144 of the Code and on 25.10.88 he converted the proceeding u/s 145 of the Code which means he has initiated a proceeding u/s 145 of the Code.

Thereafter the second party-Petitioner and her son Arvind Prasad have filed a Title Suit No. 438/88 on 4.12.88 against the first party-opposite party for declaration that the deed of gift alleged to have been executed by Chandeshwar Prasad is a forged and fabricated document, for confirmation of possession over the disputed land and for grant of injunction restraining the first party-opposite party from dispossessing them from the suit land.

Thus it is an admitted position that a Title Suit between the parties is pending with regard to the disputed land though it was filed subsequent to the initiation of proceeding u/s 145 of the Code.

The question for determination is as to whether a proceeding u/s 145 of the Code should be quashed or dropped on the ground of pendency of Title Suit between the parties. A Division Bench of this Court in the case of Shamrati Kuer (Mst.) v. Janki Saran Singh (supra) has held that existence of a civil suit can be no bar in law to the initiation of a proceeding u/s 145 of the Code. In our view the law laid down by the Division Bench of this Court in the aforesaid case is no longer a good law in view of the judgments of, the Supreme Courts referred to hereinafter. In the case of Ram Sumar Puri Mahant v. State of U.P. and Ors. reported in AIR 1985 SC 427 : 1985 PLJR (SC) 14, the apex court held as follows:

When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding u/s 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. Counsel for Respondent 2-5 was not in a position to challenge the proposition that parallel proceeding should not be permitted to continue and in the event of a decree of the Civil Court, the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim order such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigations.

Again in the case of Prakash Chand Sachdeva Vs. The State and another, the Apex Court held as follows:

True, a suit or remedy in civil Court for possession or injunction normally prevents a person from invoking jurisdiction of the criminal Court as observed by this Court in Ram Sumer Puri Mahant v. State of U.P. AIR 1985 SC 427. ''particularly when possession is being examined by the civil Court and parties are in a position to approach the civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. The normal rule is as stated by the Court in Puri''s case. But that was a suit based on title. And that could be decided by civil court only. That ratio cannot apply where there is no dispute about title. When claim or title-are not in dispute and the parties on their own showing are co-owners and there is no partition one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. Where the dispute is not on the right to possession but on the question of possession the Magistrate is empowered to take cognizance u/s 145, Code of Criminal Procedure. Neither the High Court nor the Sub-Divisional Magistrate cared to ascertain if the Respondent had any claim to lawfully prevent the Appellant from entering into his own house. The proceedings u/s 107 are for public peace and tranquility whereas u/s 145 relates to disputes regarding possession between parties concerning any land or water or boundaries thereof. Therefore, dropping of proceeding u/s 107 could not furnish foundation for dropping the proceeding u/s 145. Nor the law laid down in Puri''s case could result in rejecting the application filed u/s 145 of the Code of Criminal Procedure. There being no dispute of title between the Appellant and Respondent the only claim to be decided was if the Appellant had been forcibly or wrongly dispossessed within two months next before the date on which the information was, received by the Magistrate and the High Court instead of deciding this crucial aspect failed to exercise its jurisdiction as the Appellant had sought the remedy in civil suit without applying the mind that decision was in any way helpful for dropping the proceedings. In law, therefore, the order passed by two Courts below cannot be maintained.

Thus it is settled law that if there is a dispute with regard to the title or right to possession between the parties and the matter to the civil court and the question of possession is being examined by the civil court, in that case the continuance of proceeding u/s 145 of the Code with regard to the same land and between the same parties is not permissible. The may approach the civil court for grant of injunction or appointment of receiver. Be the proceedings should not be allowed continue as it amounts to washing of public time for unnecessary litigations. It is also not the interest of the parties. However, in case where the title is not in dispute and only the question of possession is in dispute between the parties, then proceeding u/s 145 of the Code will continue even if the civil suit is pending between the parties. In our concluded view, the law laid down by the Division Bench of this Court in the said case that pendency of Title Suit is not a ground for quashing the proceeding u/s 145 of the Code is no longer a good law.

Coming to the facts of this case, it is evident that there is dispute with regard to the title and possession between the parties as the second party-Petitioner claims to be the owner of the land by virtue of being the widow of late Chandeshwar Prasad whereas the first party-opposite party claims to be the done from him. Both the parties are claiming title as well as possession over the land. Thus apart from the question of possession, the question of title is in dispute between the parties in this case and as such it is to be held that the proceeding u/s 145 of the Code should not be allowed to continue in this case. Accordingly, the proceeding u/s 145 of the Code is dropped. However, it will be open for the parties to approach the civil court for an interim relief such as injunction, appointment of receiver etc.

In the result, the application is allowed with the aforesaid observations.