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1988 DIGILAW 79 (MP)

MAHANT RAMRATANDAS v. MAHANT NARAYANDAS

1988-03-25

K.L.SHRIVASTAVA

body1988
JUDGMENT : ( 1. ) THIS revision petition is directed against the revisional order dated 9-7-1987 passed by the IVth Addl. Sessions Judge, Indore in Criminal revision No. 36 of 1987 whereby the order dated 28-10-1986 passed by the S. D. M. , indore dropping the proceedings under section 145 of the Criminal Procedure code, 1973 (for short the Code) has been set aside and the case has been remanded to him with a direction that the inquiry be held and final order be passed. ( 2. ) CIRCUMSTANCES giving rise to the revision petition are these. The non-applicant No. 1 Mahant Narayandas on 30-6-1984 moved the learned S. D. M. under Section 145 of the Code alleging that he is in possession of the property belonging to the Hansdas Vidya Peeth and situate at 36, Luhar Patti, Indore and the present applicants and others are attempting at his forcible dispossession. According to him his son Yajatradas is the Mahant under a will executed by the last Mahant Shesh Narayan. ( 3. ) THE learned Magistrate, the same day passed a preliminary order. He also ordered attachment of the property in dispute and appointed a receiver. ( 4. ) THE order aforesaid was challenged by the applicants in revision but without success. ( 5. ) THE applicant Ramratandas later on 30-6-1986 filed an application before the learned S. D. M. challenging the attachment order stating that he is in possession of the disputed property. It was further stated that he has filed a civil suit in the Court of VIIth Additional Judge to the Court of District Judge, Indore (C. S. No. 54-A/84) for declaration and injunction in respect of various items of property including the property in dispute and temporary injunction had been granted in his favour. It was urged that in the circumstances, the criminal proceedings deserve to be dropped. ( 6. ) IT may be stated that the aforesaid civil suit has been dismissed on 23-4-1986, in default and restoration proceedings are pending. ( 7. ) THE aforesaid application for dropping the proceedings was opposed by the non-applicant No. 1 Narayandas. ( 8. ) THE learned S. D. M. relying on the decision in Ram Sumer Puri Mahant vs. State of U. P. , AIR 1985 SC 472 held that in view of the civil proceedings the criminal proceedings deserve to be dropped. ( 7. ) THE aforesaid application for dropping the proceedings was opposed by the non-applicant No. 1 Narayandas. ( 8. ) THE learned S. D. M. relying on the decision in Ram Sumer Puri Mahant vs. State of U. P. , AIR 1985 SC 472 held that in view of the civil proceedings the criminal proceedings deserve to be dropped. He accordingly dropped the proceedings under Section 145 of the Code and ordered that the receiver shall hand over the attached property to the applicant No. 1 Ramratandas in accordance with the order of the civil Court. ( 9. ) THE contention of the non-applicant No. 1 Narayandas in the Court of session was that mere pendency of civil proceedings cannot always be urged as a ground for dropping the proceedings under section 145 of the Code and in the circumstances of the case, the learned S. D. M. s order dropping the proceedings is clearly unsustainable. It was further urged on behalf of the non-applicant No. 1 Narayandas that the Panchnama prepared at the time of attachment does not show that the property was attached from the possession of applicant Ramratandas and the civil Court has nowhere ordered that the property be returned to Ramratandas. ( 10. ) THE point for consideration is whether the revision petition deserves to be allowed. ( 11. ) IT is not in dispute that the Hansdas Maharaj founded the Hansdas Maths. Shesh Narayandas was the last Mahant of the Indore Math. He died on 9-8-1981 at Indore. The Math owns movable and immovable property. Hansdas vidya Peeth is run by the Math. The real dispute between the applicant No. 1 and the non-applicant No. 1 is as to the office of Mahantship. As mentioned in paragraph 10 of the impugned order, out of the three civil proceedings instituted in respect of the property in dispute, one is for issuance of succession certificate, the other is for issuance of probate and the third one is the civil suit referred to above. ( 12. ) QUESTION of actual possession was involved only in the said suit. As already stated Ramratandas had pleaded that he was in possession and temporary injunction was granted in his favour against the present non-applicant No. 1 and others. ( 13. ( 12. ) QUESTION of actual possession was involved only in the said suit. As already stated Ramratandas had pleaded that he was in possession and temporary injunction was granted in his favour against the present non-applicant No. 1 and others. ( 13. ) IN the decision in Datar Singh vs. Bahadur Khan, 1985 MPWN 186 it has been held that when the suit has been dismissed the temporary injunction order becomes meaningless and it cannot be urged that the question of possession is involved in the restoration proceedings. Thus as the matter stands at present, there is no civil proceeding in which the question of possession of the property is involved. There is no subsisting adjudication by civil court on the question of possession of the disputed property and in this view it has rightly been held by the learned Additional Sessions Judge that the applicability of the principles enunciated by the Supreme Court in Ram Sumer Puris case (supra) are not attracted. ( 14. ) AS pointed out in Mathuralals case, AIR 1980 SC 242 Sections 145 and 146 of the Code have to be read together. Section 145 (4) of the Code lays down that in the inquiry, without reference to merits, the Magistrate has to decide, if possible whether any and which of the parties was at the date of the order under section 145 (1) ibid in possession of the subject of dispute. Proviso to sub-section (4) provides for a fiction on the question of possession. Sub-section (1) of section 146 of the Code provides for attachment of the subject of dispute in the three situations mentioned therein. It also provides for withdrawal of such attachment, when there is no likelihood of breach of the peace. ( 15. ) IT is well-settled that the jurisdiction of the Magistrate under Section 145 of the Code is co-extensive with the existence of a dispute of the kind mentioned therein and as pointed out in Rameshchandras case, 1987 (11) MPWN 183 even after attachment under section 146 ( 1) ibid that jurisdiction continues and a final order under section 145 (6) (a) may have to be passed As pointed out in bhinkas case, AIR 1969 SC 960 the final order is a police order and it lasts till the rights of the parties are determined by the competent court. ( 16. ( 16. ) AS to the import of the expression forcible and wrongful dispossession, the decisions in R. H. Bhootanis case, AIR 1968 SC 1444 and Amritlals case, AIR 1947 Mad. 133 are pertinent. In the decision in Lallan Prasads case, 1982 MPWN 78 it has been pointed out that the purpose of Section 145 is to provide a stopgap arrangement to prevent breach of the peace till the parties as law abiding citizens get their rights adjudicated by the competent court. When civil suit is filed relating to subject of dispute, as sub-section (10) of Section 145 permits, recourse may properly be had to section 107 ibid instead of the proceedings under Section 145, if the question of maintenance of public peace still remains. ( 17. ) IN the decision in Ramkumars case, 1986 (I) MPWN 118 it has been pointed out that if civil litigation is commenced the attachment under Section 146 (1)may be continued and the proceedings under Section 145 may be dropped. ( 18. ) THE observations in the decision in Ram Sumer Puris case (supra) are to the effect that the decision of the civil Court is binding on the criminal court and where the question of possession is being examined by the former, there is no propriety in continuing parallel proceedings under Section 145 of the Code. The decision cannot certainly be urged as an authority for the proposition that once civil litigation is pending, criminal proceedings under Section 145, irrespective of the question of existence of a dispute likely to cause a breach of the peace as therein contemplated, must be dropped. ( 19. ) IT is indeed in the interests of justice that there is no plurality of proceedings and conflicts of jurisdiction amongst Courts have to be avoided. In sureshchandras case, 1983 MPLJ 119 = 1983 JLJ 146 it has been held that pendency of civil litigation does not constitute a bar to the exercise of jurisdiction under section 145 of the Code. The two proceedings are basically different and when there is no like lihood of any conflict of jurisdiction, mere institution of a suit for declaration and injunction is not a bar to the Executive Magistrate exercising his functions for preventing breach of the peace. ( 20. The two proceedings are basically different and when there is no like lihood of any conflict of jurisdiction, mere institution of a suit for declaration and injunction is not a bar to the Executive Magistrate exercising his functions for preventing breach of the peace. ( 20. ) FROM the foregoing discussion it is clear that if the dispute of the nature contemplated under section 145 ( 1) of the Code exists, the mere pendency of civil litigation does not oust the Magistrates jurisdiction. The real question is of the discretion to continue or not to continue the criminal proceedings. This discretion has to be exercised on a careful consideration of the totality of the facts and circumstances of each case. As pointed out in paragraph 5 of the decision in mathuralals case (supra) after a final order under Section 145 (6) (a) of the Code there can be no question of any likelihood of breach of peace. The position would be the same where there is a subsisting order of temporary injunction in favour of a party restraining the order from disturbing the formers possession over it ( 21. ) IN the circumstances of the case, in view of the dispute as to physical possession of the subject of dispute it cannot be held that there is no longer any likelihood of breach of the peace with regard to the property. As the matter stands at present there is no subsisting order granting temporary injunction in favour of the applicants restraining the non-applicants from disturbing the formers possession. ( 22. ) ON a careful consideration I find that the impugned order is not liable to be interfered with in exercise of this Courts revisional jurisdiction which, it may be remembered, is not only limited in scope but is also discretionary. The revision petition is, consequently, dismissed. Revision dismissed.