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1981 DIGILAW 379 (RAJ)

Heera Singh v. Mangalia

1981-08-28

G.M.LODHA

body1981
JUDGMENT 1. - In proceedings under section 145, Cr.P.C., this application under section 397(3), Cr.P.C. has been filed by Heera Singh (party No 1 ) aggrieved by the order of the Additional Sessions Judge (2), Dholpur accepting the criminal revision No. 30/79 filed by non-petitioners Nos. 1 and 2 and reversing the order dated 7-10-77 of the Magistrate, Dholpur in Criminal Case No. 60/73 declaring possession of the non-petitioners 1 and 2 ( patty No. 2) in respect of the fields Khasra Nos. 2794 and 2797 situated in village Nahila. 2. The proceedings commenced in 1973 under section 145, Cr.P.C. and attachment was made. Ultimately, the possession was declared of Heera Singh (party No. l) In revision, relying upon the judgment of Revenue Court in favour of party No. 2, Mangalia and Chiranji, the Additional Sessions Judge reversed it and quashed the proceedings of Session 145, Cr.P C. 3. Mr. Goyal submitted that firstly the decision relied upon by the learned Addl. Sessions Judge in State v. Kr. Kashava Sen and Co., 1960 RLW 367 was reversed by a Division Bench of this Court in Ramratan v. Madho, 1961 RLW 247 and, therefore, the judgment stands vitiated. Secondly, it was submitted that the decree of Revenue Court was not a decree in the eye of law, firstly because it was exparte and secondly because it was made pending in a criminal case when attachment cannot take place. The decree of the revenue court dated 7-5-74 is, no doubt, ex parte. However, it mentions that the evidence was recorded ex parte of the plaintiff and after perusal of the evidence on record, it was decided that the plaintiff was in possession and was also doing cultivation of the disputed land. Prohibitory injunction was issued restraining the defendants from interfering in the possession of the plaintiff and doing any type of interference in his cultivation and possession. 4. It may be that an ex parte decree may be set aside by a proper application for setting aside the decree, if it is found that it was obtained by any deceitful means, as alleged by Mr. Goyal or without service of the defendant. But, in that case the remedy is to file an application before the Revenue Court. So far as that decree stands, a criminal court cannot pass any other directions or orders against that decree. 5. The submission of Mr. Goyal or without service of the defendant. But, in that case the remedy is to file an application before the Revenue Court. So far as that decree stands, a criminal court cannot pass any other directions or orders against that decree. 5. The submission of Mr. Goel that the meaning of revenue court and civil court as taken by Single Bench was reversed by a Division Bench of this court is correct, but that relates to the reference u/s 145, Cr. P. C. In Sajjan Singh v. Sajjan Singh, AIR 1970 UJ (DV) 75 their lordships of the Supreme Court held that so far as the question of possession u/s 145, Cr.P.C. is concerned, even when a temporary injunction stands in favour of a party, the criminal court is required to respect that also while deciding the case. The operative portion of the judgment reads as under:- "In our opinion this case must go back to the Sub-Divisional Magistrate for decision of the proceedings before him. Those proceedings commenced as far back as 1967 and the question whether there is or there is not any apprehension o( breach of peace will certainly have to be decided in the light of the happenings in the Civil Court In the mean time we do not see any reason to order the setting aside the order of the High Court. It will be open to the Sub-Divisional Magistrate to consider whether the Receiver should be continued or not, but in any event, he shall not disturb the possession of Sajjan Singh son of Jagannath Singh so long as the temporary injunction is outstanding and pending the decision of the proceedings under Section 145 of the Code of Criminal Procedure with a view to handing over the possession to the other side. With these remarks we dismiss the appeal." 6. In the instant case, the trial Court under section 145, Cr. P. C. declared the possession of party No. 1 on the basis of evidence recorded before it, but since that declaration was in clear contravention and disregard of a decree of revenue court dated 7-5-74, it was just and proper for the Sessions Court to interfere in it for respecting the decree of a revenue court. P. C. declared the possession of party No. 1 on the basis of evidence recorded before it, but since that declaration was in clear contravention and disregard of a decree of revenue court dated 7-5-74, it was just and proper for the Sessions Court to interfere in it for respecting the decree of a revenue court. It has been repeatedly said that the order under section 145, Cr.P.C. is in the nature of a summary order or police order and it is only meant to prevent breach of peace. That being so, as a decree of competent revenue court or civil court having competent jurisdiction is passed declaring the possession of a party, and prohibiting the other party from interfering in that possession, that decree must be respected by criminal courts in all proceeding, whether under section 145 or of any other nature. If that is Dot done, there would be conflicting judgments and conflicting orders, and the parties to the litigation and no also the executive authorities would be put in a very anamalous position. 7. I am, therefore, of the view that no interference is called for in the judgment of the lower court. But it would be open to the petitioner to challenge the ex parte order of the revenue court, in case he is so advised and the law as permits. With the above observations the Revision Petition is dismissed.Revision Dismissed. *******