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1983 DIGILAW 378 (MP)

AKHERAM AND OTHERS v. ABDUL GANI

1983-09-25

V.D.GYANI

body1983
V. D. GYANI, J. ( 1 ) BY this petition under Sec. 482 Cr. P. C. the petitioners pray for quashing the proceedings instituted against them u/s. 145, Cr. P. C. by the non-applicants, in the Court of the Sub-Divisional Magistrate, Jaora, and registered as Criminal Case No. 394/145/1983, and have also prayed for quashing the orders dated 1. 10. 1983 and 26. 10. 1983, passed therein. ( 2 ) PROCEEDINGS before the Sub-Divisional Magistrate, Jaora, relate to agricultural lands, bearing survey No. 361 and admeasuring 5 bighas and 12 biswas, situated in village Sadakhedi, Tahsil Jaora, District Ratlam. It is claimed by the petitioners that this land although recorded in the name of one Chandshah and his brothers in Bhumiswami rights in the revenue papers, yet Chandshah was the real owner and in exclusive possession of the said land having got it in pursuance to a partition with his brothers. Chand shah delivered possession to the petitioner No. 1 after receiving Rs. 301-00 from him and also executed an agreement of Adhbatai on 4. 6. 1961. The petitioners have been since then in possession of the land and are cultivating the same. They continued to pay the money from time to time. However, a dispute arose, which was referred to Arbitration by Panchas, who gave their award on 2. 6. 1976, directing Chandshah to execute a registered sale deed in favour of the petitioner No. 2 on payment of Rs. 2,500/- and this award was accepted by the parties. As Chandshah tried to avoid the directions given in the award, proceedings under Sec. 14 of the Arbitration Act, for making the award a rule of the Court, were initiated in the Court of Civil Judge, Class II, Jaora, which were registered as Civil Suit No. 44a of 1976 and is pending. An application for interim injunction under 0. 39, Rules 1 and 2 C. P. C. , seeking to restrain Chandshah and his brothers, who are all defendants in the said suit, from interfering with the petitioners possession over the land was filed and by an order dated 13. 5. 1977, the application was allowed and injunction restraining all the defendants from interfering, directly or through anyone, with the petitioners possession over the said land was also granted. This injunction was affirmed by the District Judge in Civil Misc. Appeal No. 33 of 1977, decided on 4. 7. 1978. 5. 1977, the application was allowed and injunction restraining all the defendants from interfering, directly or through anyone, with the petitioners possession over the said land was also granted. This injunction was affirmed by the District Judge in Civil Misc. Appeal No. 33 of 1977, decided on 4. 7. 1978. ( 3 ) A part of the land was sold to the non-applicants 1 and 2 by Chandshah, who executed a registered sale-deed and this is how they came into picture. ( 4 ) NON-APPLICANTS 1 and 2 tried to disturb the petitioners possession of the said land, thus leading to yet another application for impleading them as parties to the Civil Suit, referred to above and for grant of an add interim injunction against them as well, although the same was not necessary under the law. The trial Court by order dated 10. 11. 1983 restrained the non applicants 1 and 2 from interfering with the petitioners possession over the said land. ( 5 ) IT appears on 1. 10. 1983 the non-applicants 1 and 2 initiated proceedings u/s. 145, Cr. P. C. against the petitioners before the Sub-Divisional Magistrate, Jaora, who registered Criminal Case No. 393/145/1953 and a preliminary order was passed and the parties were directed to file their claims by 13. 10. 1983 and the petitioners were restrained from going to the land in question. On the date fixed the applicants appeared before the Sub-Divisional Magistrate and moved an application for quashing the proceedings on the ground that the Civil Court was already ceased of the matter and the proceedings under Sec. 145, Cr. P. C. were un-necessary. Instead of accepting the petitioners prayer, the Magistrate by order dated 28. 10. 1983 attached the property and appointed a Receiver u/s. 146 (1), Cr. P. C. Now, the petitioners challenge both the orders passed by the Sub-Divisional Magistrate on 1. 10. 83 and the order of attachment on 26. 10. 1983. ( 6 ) SHRI Pavecha, learned counsel appearing for the petitioners submitted that in face of not merely pending Civil proceedings. injunction granted against the non-applicants -there was absolutely no justification for continuation of the proceedings u/s. 145, Cr. 10. 83 and the order of attachment on 26. 10. 1983. ( 6 ) SHRI Pavecha, learned counsel appearing for the petitioners submitted that in face of not merely pending Civil proceedings. injunction granted against the non-applicants -there was absolutely no justification for continuation of the proceedings u/s. 145, Cr. P. C. Learned counsel also submitted that the non-applicants claimed to have purchased the land during the pendency of the suit, are bound by the orders passed by the Civil Court, even if they are not a party to it. But in the instant case, they have been impleaded as a party and there is also an injunction order against them. ( 7 ) SHRI Garg, learned counsel appearing for the non-applicants has submitted that the injunction order passed by the Civil Court against the non-applicants has been stayed in its operation by the Addi. District Judge, Jaora. ( 8 ) THE foundation of the proceedings u/s. 145, Cr. P. C. is a dispute relating to land and the dispute contemplated is such, which may lead to breach of the peace. In the instant case the dispute relating to land is already a subject matter of litigation in the Civil Court, who has by an interim injunction restrained the defendants from interfering with the petitioners possession. If the non-applicants claimed to be in possession of the disputed land, it is for them to prove that they had obtained actual physical possession of the land in question from the seller. In absence of any material on record to show on which particular day or date the non-applicants 1 and 2 came to be in possession of the said land, is no where indicated nor it can be found to be from the record. Learned counsel for the non-applicants could not point out any such document by which it could be said that after passing of the injunction order they (the non-applicants) came to be in possession of the land in dispute on purchase by them from Chandshah. It is abundantly clear that Chandshah could not have put the non- applicants in possession as the same was with the petitioners, a fact prima facie established before the Civil Court. ( 9 ) SECTION 482, Cr. It is abundantly clear that Chandshah could not have put the non- applicants in possession as the same was with the petitioners, a fact prima facie established before the Civil Court. ( 9 ) SECTION 482, Cr. P. C. can be invoked for three different reasons or circumstances: firstly, to give effect to an order passed under the Code; secondly, to prevent the abuse of the process of the Court and thirdly, to secure the ends of justice. When the rights of the parties are under investigation by the Civil Court and the question of possession is categorically found to be with the petitioners, there appears to be no justification and the non-applicants have already been restrained by the Civil Court, there appears to be no justification for passing the impugned orders and continuing with the proceedings u/s. 145, Cr. P. C. The Supreme Court has in a very recent case, viz. Ram Sumer Purl v. State of U. P. , has held that: when a Civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding under Sec. 145 of the Code, would not be justified. The 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 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. ( 10 ) LEARNED counsel has also placed reliance on a decision of this Court in Gajpati Palton v. Sardar Uttam Singh which also hold that in face of pending civil proceedings, u/s. 145, Cr. P. C. and order of attachment passed therein is improper and liable to be struck down u/sec. 482, Cr. P. C. ( 11 ) FOR the foregoing reasons this petition succeeds and is allowed. The impugned orders dated 1. 10. 1983 and 26. 10. 1983 are set aside. The Receiver is directed to deliver back possession to the petitioners. .