Yadunandan Singh alias Sri Ram Singh and Others vs Avdhesh Pratap Singh alias Avdhcsh Singh and Others

R.H. Zaidi, J.—By means of this petition under Article 226 of the Constitution of India, petitioners pray for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 21.8.1989, passed by Respondent No. 1. directing for attachment of the property in dispute u/s 146(1), Code of Criminal Procedure and giving the same in the Supardagi of Superdar till dispute between the parties are decided by the competent civil Court, and the order dated 7.10.1989, whereby the revision filed by the applicants against the aforesaid order, was dismissed by the revisional Court.

Present petition arises out of proceedings u/s 145, Code of Criminal Procedure The dispute related to the land measuring 14.43 acres consisting of five plots situated in villages Lakesar pargana, Tehsil and district Kheri, and in village Laksaria of the same district. The land in dispute was originally owned by Smt. Munni Devi, who died on 25.10.1985 leaving behind two married daughters, Smt.A.Cr.R. 63 Tankunna and Smt. Vishesh Kumari and one son Ajai Kumar Singh besides the Petitioner Nos. 1 to 5 who are sons of Smt. Bari Bittan alias Udai Raj Kumari, who died during the life time of Smt. Munni Devi. After the death of Munni Devi dispute with respect to said property arose amongst her heirs. Police of the circle vide its report dated 11.4.1989, reported to Respondent No. 9 Addl. Sub-Divisional Magistrate, Lakhimpur Kheri that there was dispute between the parties with respect to the possession of the land in dispute, and there existed apprehension of breach of peace. On the basis of the said report Addl. Sub-Divisional Magistrate issued preliminary order fixing 22.3.1988 for appearance of the parties. The Magistrate concerned, thereafter, directed for attachment of the wheat crops standing in the land in dispute on 27.4.1989. Parties to the dispute, thereafter, put in their appearance. Respondent Nos. 1 to 3, filed their written statement claiming that the land in dispute was originally owned by Late Jagmohan Singh, who according to them, executed a Will dated 16.3.1943 bequeathing property in dispute in their favour. The petitioners have claimed that actually they were owners in possession of the property in dispute, on the basis of Will dated 11.1.1978 alleged to have been executed by Smt. Munni Devi. It was pleaded that the Petitioner and Respondent Nos. 6 and 7, were in possession of the said land. They have also claimed that on the basis of the said Will, they have applied for mutation of their names and the dispute regarding mutation was pending before competent revenue Court. Parties produced evidence in support of their cases. The Addl. Sub-Divisional Magistrate after going through the evidence on record, directed attachment of the property in dispute u/s 146(1) Code of Criminal Procedure till the dispute is decided by a competent Court. Aggrieved by the judgment and order, referred to above, petitioners filed revision before Respondent No. 10. The revisional Court affirmed the findings recorded by Respondent No. 9, upheld its order and dismissed the revision by its judgment and order dated 7.10.1999, hence the present petition.

Learned Counsel for the petitioners vehemently urged that at the time of initiation of proceedings u/s 145, Code of Criminal Procedure , mutation proceedings were pending disposal before competent revenue Court and in the meanwhile Vishesh Kumari, Respondent No. 6 also filed a suit for declaration of rights u/s 229B and Section 209 of the U.P.Z.A. and L.R. Act. Therefore, there was no justification for the Magistrate concerned, to initiate proceedings u/s 145, Code of Criminal Procedure . therefore, not only the impugned orders but the entire proceedings were liable to be quashed.

On the other hand, Learned Counsel for the contesting respondents supported the validity of the impugned orders. It was urged that there was dispute with regard to the possession over the property in dispute and also apprehension of breach of peace. Police, therefore, rightly reported for initiation of proceedings u/s 145, Code of Criminal Procedure The Courts below rightly dealt with the matter and decided the same in accordance with law. Reliance was placed by Learned Counsel for the Respondent, upon the decision in R.H. Bhutani Vs. Miss Man J. Desai and Others, , in support of his submission.

The question, which requires consideration in this case is as to whether during pendency of mutation proceedings u/s 34 of the U.P. Land Revenue Act, and a regular suit for declaration of title in the revenue courts, with respect to the land in dispute between the parties, was it open to Sub-Divisional Magistrate, to initiate proceedings u/s 145, Code of Criminal Procedure.

The object of the proceedings under Sections 145 and 146 of the Code of Criminal Procedure is just to avoid breach of peace between the parties on the question of possession concerning any land, water or boundaries thereof. The proceedings are summary in nature. In the said proceedings, title of the parties with respect to the property in dispute is not to be decided by the said Courts. The dispute with regard to the title, if any. with respect to the property in dispute has to be decided by the competent Court, may be civil or revenue. In the present case, both the parties petitioners and contesting respondents claimed their right on the land in dispute, on the basis of Wills, one alleged to have been executed by late Suraj Pal Singh and the other alleged to have been executed by Smt. Munni Devi. Admittedly, at the time of initiation of proceedings u/s 145, Code of Criminal Procedure mutation proceedings in respect to the land in dispute were pending. Meanwhile, Respondent No. 6 also filed a suit for declaration of rights in the land in dispute. In the said proceedings and the suit, petitioners and contesting respondents were parties. It is well settled in law that parallel civil and criminal proceedings with respect of the same property, cannot be permitted to go on. Reference in this regard, may be made to the decision of Apex Court in Ram Sumer Puri Mahant v. State of V.P. 1985 (3) LCD 75, wherein it was ruled as under :

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 Nos. 2 to 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 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 orders such as injunction of 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.

Relying upon the aforesaid decision, this Court in Mahant Siya Ragho Saran v. Dharam Das and Ors. 1986 (4) LCD 37, quashed the proceedings u/s 145, Code of Criminal Procedure under similar circumstances as of the present case.

In Vinat Kumar and Ors. v. Om Prakash and Anr. 1980 ACR 4, it was held that the revenue Court, dealing with the mutation proceedings, is quite competent to decide as to who is entitled to possession of the property, it was ruled as under :

There can be no manner of doubt that a mutation Court is fully competent to decide as to who is entitled to the possession of the property. Therefore, it is competent Court for the purposes of Section 146(1) of the Code. The view taken by the learned Sessions Judge was obviously wrong.

In view of the aforesaid decisions and the settled law on the point, it was not open to the Magistrate concerned, to initiate proceedings u/s 145, Code of Criminal Procedure in respect of the land in dispute. Admittedly when mutation proceedings and the regular suit for declaration of rights were pending disposal in the competent courts, parties in the said proceedings and the suit, could seek appropriate interim orders to avoid breach of peace with respect to the property in dispute.

So far as the decision referred to and relied upon by the Learned Counsel for the contesting respondents in R.H. Bhutani�s case (supra) is concerned, the ratio of the decision was that the proceedings u/s 145, Code of Criminal Procedure could be also initiated on a private complaint. It was not necessary after receiving a complaint of private party, to call for the police report and that the High Court, in its revisional jurisdiction would not go into question of sufficiency of material on the basis of which Magistrate was satisfied and further that dispossession of a party, within two months next preceding the date of preliminary order has to be considered. The dispossession of party, within the said time, does not oust jurisdiction of the Magistrate to pass order under the aforesaid section. The question as to whether it was open to the Magistrate, to proceed u/s 145 Code of Criminal Procedure during pendency of the mutation proceedings and the regular suit, was not considered by the Apex Court in the said decision. The said decision, therefore, has got no application to the facts of the present case. In view of the aforesaid discussions, the impugned orders are liable to be quashed.

Writ petition succeeds and is allowed. Orders dated 21.8.1989 and 7.10.1989 passed by the courts below are, hereby, quashed. Interim order dated 23.10.1989 is also discharged.

No order as to costs.