Sudershan Singh vs Roshan Singh and others

Satish Kumar Mittal, J.

This petition under Section 482 Cr.P.C. has been filed by the petitioner Sudershan Singh for quashing of the Calendra dated 15.4.1999 (Annexure P4), orders dated 15.4.1999 (Annexure P6) and 20.4.1999 (Annexure P7) passed by the SubDivisional Magistrate, Mukerian, under Sections 145 and 146 of the Code of Criminal Procedure, respectively.

In this case, the petitionerSudershan Singh and respondentRoshan Singh are the real brothers. They were joint owners in possession of the land measuring 237 kanals 3 marlas. In the revenue records, they were recorded as cosharers of the said land in joint possession of the same. On 14.9.1999, the respondentRoshan Singh made an application to the SHO, Police Station, Mukerian alleging therein that he and his brother Sudershan Singh are the joint owners of the aforesaid land, and his brother is obstructing him from harvesting the wheat crop sown by him on the land pertaining to his share. On the said application, the SHO, Mukerian submitted a Calendra to the Sub Divisional Magistrate, Mukerian for taking an action under Section 145 Cr.P.C. as according to him, there was an apprehension of breach of peace and commission of some cognizable offence by both the parties as there was a dispute about possession and harvesting of the crop. On the said Calendra, the SubDivisional Magistrate initiated proceedings under Section 145 Cr.P.C. while passing the following order :

"It is alleged that both the parties claim their possession on the disputed land. Whereas I am satisfied from the report 15.04.99 submitted by S.H.O., Mukerian in this case that the abovementioned parties are likely to commit breach of peace in respect of land described in the headnote. I hereby direct Party No. I and Party No. II to attend this Court in person or through legal representation on 16.04.1999 at 10.00 A.M. and to put in written statements of their claims in respect of possession of the disputed land. Both the Party No. I and II are to produce all evidence in support of their claims on the above said date i.e. 16.04.1999."

Subsequently, on 20.4.1999, an order under Section 145 Cr.P.C. was also passed by the SubDivisional Magistrate, Mukerian, appointing Naib Tehsildar, Mukerian as receiver on the land in question.

The petitioner has challenged the aforesaid orders in this petition.

I have heard the learned counsel for the parties and perused the record of the case. The learned counsel for the petitioner raised two submissions. Firstly, that a civil suit for declaration filed by the petitioner to the effect that he is owner in possession on the land measuring 118 kanals 11 marlas comprising in khasra numbers mentioned in the plaint, is pending in the Court of Civil Judge (Jr. Division), Dasuya. In that civil suit, both the parties were directed to maintain statusquo vide order dated 6.1.1997 (Annexure P3). In view of this, the SubDivisional Magistrate, Mukerian was not competent and justified to initiate the proceedings under Section 145 Cr.P.C. In support of his contention, learned counsel for the petitioner has relied upon the decisions of this Court in Lord Shiva Charitable Trust v. State of Haryana, 1999(1) RCR(Criminal) 706 (P&H) ; M/s. Sukhdev Raj, Baldev Raj v. Bagga Singh, 1998(3) RCR(Criminal) 468 (P&H) and Saroj Gupta v. Nand Lal, 1998(2) RCR(Criminal) 435 (P&H).

Secondly, learned counsel for the petitioner submitted that undisputedly, the aforesaid two brothers were the joint owners of the land in question. In the revenue record, both the parties were recorded as cosharers in joint possession of the land in question. It has also come on record that an application for partition filed by the respondentRoshan Singh before the revenue Court under the Punjab Land Revenue Act, is pending. The said partition application has been adjourned sinedie to await the decision of the Civil Court as a question of title was raised in the partition proceedings.

Learned counsel for the petitioner also submitted that it is wellsettled that the proceedings under Section 145 Cr.P.C. cannot be initiated pertaining to a dispute between the cosharers in the joint land. In support of his contention, he has relied upon Harbans Lal & anr. v. Hans Raj & ors., 1980 C.L.R. 218 and Pardeep Kumar v. State of Punjab & Anr., 1990(3) RCR(Crl.) 9 (P&H) : 1990(2) C.L.R. 391.

On the other hand, learned counsel for the respondents submitted that no interference is required to be made in the impugned orders in exercise of the inherent powers under Section 482 Cr.P.C. He submitted that the SubDivisional Magistrate was competent and having the jurisdiction to initiate the proceedings under Section 145 Cr.P.C. and to appoint a receiver in case he is satisfied that there is a dispute between the parties about possession of the land and due to that dispute, there is an apprehension of breach of peace. He further submitted that in the instant case, apparently the dispute is between the two brothers about the possession of specific khasra numbers in the joint land and the satisfaction recorded by the SubDivisional Magistrate regarding breach of peace is the subjective satisfaction of the said officer which does not require any interference in exercise of inherent powers of this Court.

Undisputedly, the land measuring 237 kanals 3 marlas is in the joint ownership of both the parties, who are real brothers. The respondentRoshan Singh claimed that partition of the said joint land has not been effected by the parties, therefore, he filed partition application before the revenue Court. The proceedings of the said partition application were stayed by the Collector on the ground that a civil suit is pending between the parties where similar question of title has been raised and the decision of the Civil Court will be binding on the parties. It is also not disputed that a civil suit is also pending between the parties which was filed by the petitioner in which order of statusquo is operating.

In view of the aforestated undisputed facts, I am of the opinion that the order dated 15.4.1999 passed by the SubDivisional Magistrate under Section 145 Cr.P.C. on the basis of the Calendra submitted by the police and the order dated 20.4.1999 appointing Naib Tehsildar, Mukerian as a receiver, are not sustainable.

A Division Bench of this Court in Tek Ram & anr. v. SubDivisional Magistrate & ors., 1997(2) RCR(Crl.) 549 (P&H) : 1997(2) C.L.R. 165 has held that when a civil suit is already pending between the parties wherein the question of landed property is involved and temporary injunction has been granted in favour of plaintiff parallel proceedings under Section 145 Cr.P.C. initiated by the SubDivisional Magistrate are not justified and are liable to be quashed.

Similarly, in Saroj Gupta''s case (supra), it has been held by this Court that the Executive Magistrate should not deal with the matter when the question of possession is pending before the Civil Court and the Executive Magistrate should leave the question of possession to be determined by the Civil Court and subordinate its order of attachment to the order of Civil Court.

In M/s. Sukhdev Raj, Baldev Raj''s case (supra), it has been held by this Court that where petitioner and respondent are claiming ownership over a plot and the petitioner is in possession of the same, and the respondent files a suit for possession in Civil Court and both parties wanted to raise construction on the plot to exert ownership, proceedings under Section 145 Cr.P.C. are not competent when civil suit was pending.

In Harbans Lal''s case (supra), it has been held by this Court that the proceedings under Section 145 Cr.P.C. cannot be initiated in a case where joint possession of property is alleged.

Further, in Pardeep Kumar''s case (supra), it has been held by this Court "that it is the consistent view of this Court that initiation of proceedings under Section 145 of the Code regarding the property in joint possession of the rival parties is a clear abuse of these provisions."

In view of the aforestated settled proposition of law, the proceedings initiated by the SubDivisional Magistrate, Mukerian under Section 145 Cr.P.C. and the order dated 20.4.1999 appointing a receiver, are not sustainable.

Hence, this petition is allowed and the impugned orders dated 15.4.1999 and 20.4.1999, passed under Sections 145 and 146 Cr.P.C., respectively, are hereby quashed.