Vanya @ Banesingh And Others vs State Of Madhya Pradesh

Subject matter of this petition is an agricultural land bearing survey nos. 371 and 391 admeasuring 5.92 and 1.92 hectare; situated in Village Pipliyaham, Tappa Panbihar, Tehsil Ghatiya District Ujjain.

Genesis of the dispute between the parties lies in the compensation on account of loss of crops to be given by the government to the owner of the land. Both the parties claimed title and possession over the disputed land. One of the Respondent Ashivini Singh (respondent no.2/R-2) filed a civil suit before the First Additional Civil Judge, Class II, Ujjain to the First Civil Judge, Class II, Ujjain along with the application for interim injunction under order 39 rule 1 & 2 of the CPC on 09.03.2016. This application was later dismissed as withdrawn vide order dated 18. 11.2016. During pendency of this petition, the respondents also approached the police alleging that the petitioners are interfering in their possession. SHO, Police Station Bherugarh found that there was a serious dispute regarding possession over the disputed land and it may disturb tranquillity of the vicinity and may create law and order problem. He filed an Istaghasa under section 145 of the Cr.P.C. before the City Magistrate, District Ujjain. The City Magistrate passed a preliminary order on 12.04.2016 and appointed Nayab Tehsildar, Tehsil Ghatiya, District Ujjain receiver and directed him to take possession of the land and also issued notices to the parties to appear before him and to present their case. This order was challenged before the Additional Sessions Judge, Ujjain by filing Revision no.85/2017. Vide order dated 12.04.2017, the Additional Sessions Judge, Ujjain partially allowed the revision. The ASJ maintained the order of appointing receiver and directed the City Magistrate to pass final order in accordance with law after hearing the parties. Against this order, the petition bearing M.Cr.C. No.4860/2017 was filed by the petitioners, but was dismissed vide order dated 22.07.2019 as during the pendency of this petition, the final order was passed by the SDM on 05.12.2017 confirming the preliminary order of appointing Nayab Tehsildar, Ujjain as receiver of the disputed land. This final order was challenged by filing Revision no.65/2018, which was disposed of by order dated 16.05.2018 passed by the Additional Sessions Judge, Ujjain inter alia stating that the order of the City Magistrate, Ujjain dated 05.12.2017 lacks legality. The learned ASJ set aside the order. This is the order of the ASJ against which the petitioners have preferred the present petition.

Question raised before this Court is that as to whether Executive Magistrate is competent to pass as order in exercising powers under Section 145 Criminal Procedure Code, 1973, when a civil suit for title and possession with respect to the same land is pending before the civil Court?

The reply is given by the Hon'ble Supreme Court way back in the year 1985 that no proceeding under S. 145 of the Code for any land for which civil suit is pending between the parties can proceed and no order can be passed by the Executive Magistrate when the matter is pending before the civil Court for adjudication of title and possession.

While reversing the judgement of the Allahabad High Court Hon'ble the Supreme Court has held in Ram Sumer Puri Mahant v. State of U.P. and others AIR 1985 SC 472 (Arising out of S. L.P. (Cri) No. 1369 of 1982), D/- 17.12. 1984) that "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 under 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 respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should pot 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 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. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed. We accordingly allow the appeal and quash the order of the learned Magistrate by which the proceeding under S. 145 of the Code has been initiated and the property in dispute has been attached. We leave it open to either party to move the appellate Judge in the civil litigation for appropriate interim orders, if so advised, in the event of dispute relating to possession."

In the judgement of Amresh Tiwari v. Lalta Prasad Dubey and another AIR 2000 SC 1504, a three judge Bench (K.T. Thomas, J. And D.P. Mohapatra, J. and S.N. Variava, J.) Hon'ble the Apex Court made it clear that "We clarify that we are not stating that in every case where a civil suit is filed. Section 145 proceedings woud never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil Court that proceedings under Section 145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil Court would be binding on the Magistrate."

This view is reiterated in Mahant Ram Saran Dass v. Harish Mohan and others 2001 AIR SCW 2359. Para 2 of this judgment reads as under:

The short question that arises for consideration is whether in the facts and circumstances of the present case, a civil suit for declaration under Section 92 of the Code of Civil Procedure being pending before the competent forum, Civil Court, the respondent was entitled to invoke the jurisdiction of the Magistrate under Section 145 of the Cri.P.C. and the Magistrate was entitled to initiate the proceedings and pass any interim order of appointment of Receiver therein. It is not disputed that in the civil suit itself the Court has passed interim order of injunction and put certain restrictions on the parties with regard to alienation of the property in question. It is true that applicant before the Magistrate, has not been arrayed as party-defendant in the civil suit, but that will not alter the position in any manner since in our view the Civil Court being in session of the matter, any appropriate relief could be obtained from the Civil Court itself and the Magistrate had no jurisdiction in the case in hand to entertain the application under Section 145 and to pass any orders thereon. In the circumstances, the impugned order of the High Court as well as the proceedings initiated before the Magistrate under Section 145 of the Cri. P.C. stand set aside. The appeal is disposed of accordingly. Needless to mention the status quo as on today to be maintained to enable the parties to move the Civil Court for appropriate orders.

The view taken in the Ram Sumer case (supra) is being followed by almost all the High Courts in the country. In Atahaul Haque and others v. Md. Allauddin 2000 CRI. L. J. 3245 Patna High Court has said that Initiation of proceedings under S. 145 and passing of order u/S. 146(1) subsequently is not permitted when the land in question is the suit land in a pending civil suit. Again the same was reiterated in Gyandeo Sharma v. State of Bihar and Ors 2006 CRI. L. J. 2710 where it is held that Civil Court is competent to decide question of title as well as possession and order of Civil Court is binding on Magistrate. Where suit between parties in only for declaration of title in respect of same property in that case also a parallel proceeding under Section 145 cannot be instituted or allowed to continue.

In Sardar Sardool Singh v. Teja Singh 2002 CRI. L. J. 2318 High Court of J&K has held that in case where factum of possession of shop had been finally decided by competent civil Courts, there is no irregularity in order of Magistrate dropping proceedings after affording opportunities to the parties.

Allahabad HC has stated in Kailash Nath v. State of U.P. and another 2004 CRI. L. J. 2129 that when matter of title and possession pending adjudication before civil Court, even in case of apprehension of breach of peace in respect of possession over disputed property, proceedings under S.145 would not be maintainable.

Similar view is taken by Gauhati High Court in Fazlur Rahman v. Md. Raizuddin and others 2004 CRI. L. J. 3670 that in view of pendency of partition suit before Civil Court filed after proceedings under S. 145 are liable to be quashed as petitioner was not entitled to any relief under S. 145.

It is further followed by Full Bench of Madras High Court in A. Dhaveethu v. District Collector, Sivagangai District, Sivagangai and Ors. 2017 CRI. L. J. 329 Cri.R.C.

Our own High Court has followed the same suit in Prakash Chandra Prasad v. State of M.P. 2010 (I) MPWN 98 stating that when a matter is pending before civil Court for adjudication of title and possession, no order under S. 146 (1) of the Code, 1973 could be passed.

In the instant case, it is not in dispute that the subject- matter of the dispute, over which the proceedings under S. 145 of the Code were initiated, a previously instituted civil suit where the title and possession over the same land was being examined by the civil Court, filed by Respondent No.2 Ashwini Singh is pending consideration. In such a situation the Executive Magistrate cannot be allowed to proceed with the proceedings under Ss. 145 and 146(1) of the Code as there would be danger of two conflicting decisions, one passed by the Civil Court and the other by the Court of the Executive Magistrate. The law provides that the civil Court should be allowed to examine the question of title and possession over the disputed land and a parallel proceeding should not be allowed.

But the question is that as to what relief the petitioner prayed from this Court? In the present petition, the petitioners have requested for the following reliefs :-

"अतएव याचिका प्रस्तुत कर निवेदन है कि अधीनस्थ न्यायालय अतिरिक्त सत्र न्यायाधीष उज्जैन के द्वारा पारित आदेष दिनांक 16/05/2018 के आदेष को निरस्त किया जावे कि वह सिविल न्यायालय में वाद लंबित है, इस कारण दण्ड प्रक्रिया संहिता की धारा 145 द.प्र.सं. की कार्यवाही को समाप्त किए जाने का आदेष प्रदान किए जाने की कृपा करें एवं याचिकाकर्ता की याचिका स्वीकार किए जाने का आदेष प्रदान करने की कृपा की जावे।"

Operating para nos.15 and 16 of the order dated 16.05.2018 passed in Criminal Revision no. 65/2018 passed by Additional Sessions Judge, Ujjain reads thus:-

''15. अतएव जब उभयपक्षों को सुनवायी का अवसर देकर पारित किए गए आलोच्य आदेष के विरूद्ध यह पुनरीक्षण याचिका प्रस्तुत की गई है तो फिर प्रारंभिक आदेष से व्यथित होकर प्रस्तुत की गई पुनरीक्षण याचिका क्र. 85/17 इस पुनरीक्षण याचिका को बाधित नहीं करती है और अंतिम आदेष के पृष्ठ क्र. 4 पर जब अधीनस्थ न्यायालय ने यह निष्कर्षित किया है कि वादग्रस्त भूमि पर पार्टी क्र.1 का आधिपत्य है तो फिर विवाद की संभाव्यता मात्र कहना मामले को दण्ड प्रक्रिया संहिता की धारा 146 की उस परिधि में नहीं आता है जिनमें विवाद की विषय-वस्तु को कुर्क करने और रिसीवर नियुक्त करने की षक्तियाॅ दी गई है।

अतएव यह पुनरीक्षण याचिका स्वीकार किए जाने योग्य होने से स्वीकार की जाती है और सिटी मजिस्ट्रेट नगर उज्जैन के द्वारा प्रकरण क्र. 75/16 में दण्ड प्रक्रिया संहिता की धारा 145 के अंतर्गत पारित आदेष दिनांक 5/12/17 में वैधता का अभाव होने से बने रहने योग्य नहीं है, अतएव अपास्त किया जाता है।"

Thus, it is explicitly clear that the petitioner wants that the proceedings under section 145 of the Cr.P.C. be dropped and the order dated 16.05.2018 passed by the Additional Sessions Judge, Ujjain states that the order of City Magistrate dated 12.04.2017 is set aside as it lacks legality.

Thus, nothing remains for this Court to grant relief, as claimed for, to the petitioners, which has already been granted by the Revision Court, therefore, this petition being misconceived is dismissed hereby.