Madan Singh v. State Of Bihar — 1990 DIGILAW 305 (PAT)

Judgment 1. This application under Section 482 of the Code of Criminal Procedure, 1973 (In short the Code,) has been filed by the second party to the proceeding (M 2689/80) under Section 145 of the Code pending in the Court of Sub-divisional Magistrate, Siwan. It is directed against the order dated 20-1-1990 passed by the learned Sub-divisional Magistrate, Siwan by which the proceeding under Section 145 of the Code was initiated against both the parties with respect of the land in dispute and also for quashing the entire proceeding. 2. It appears that opposite party No.2 had filed a petition before the Sub divisional Magistrate, Siwan impleading the petitioners as the second party and alleging therein that revisionalsurveyplotNo.395, Khata No.171 of Village Ujain P.S. Daramda measuring an area of 5 bighas 2 kathas 3 dhurs was recorded in the revisional survey katian as Sheottar land and was being cultivated by Chandeshwar Singh and five others on Batai basis and the income therefrom was spent on the maintenance for temple and rag bhog of lord Shiva. It was alleged that the present petitioners were lathials and they intended to loot the standing paddy crop from the aforesaid plot which was grown by the Bataidars namely Chandeshwar Singh and five others. 3. On the basis of this petition a report was called for from the officer-in-charge, Daraunda Police Station and on the basis of his report a proceeding was started under Section 144 of the Code. The petitioners had appeared in the said proceeding and in their show cause they contended that opposite party No. 2 had filed this application on behalf of Chandeshwar Singh and five others who had already filed Title Suit No.34/89 against the petitioners with respect of the suit land in the Court of Subordinate Judge, Siwan. An injunction petition filed by them for restraining the petitioners from going over the land in dispute was rejected by the learned Subordinate Judge by his order dated 8-1-1990 and that this fact has been concealed by opposite party No. 2 in his petition filed before the learned Sub-divisional Magistrate, Siwan, Dineshwar Singh one of the plaintiffs of the said suit happens to be the nephew of opposite party No. 2. Accordingly the petitioners pray that the proceeding started against them be dropped, -this prayer of the petitioners was rejected by the learned Sub-divisional Magistrate, Siwan. 4. Accordingly the petitioners pray that the proceeding started against them be dropped, -this prayer of the petitioners was rejected by the learned Sub-divisional Magistrate, Siwan. 4. Chandeshwar Singh and others had filed Civil Suit No. 34/89 with respect of R.S. Plot No. 395 before the Subordinate Judge, Siwan against the petitioners challenging that the sale deed executed in favour of the petitioners was not binding on the ground that the vended land was Sheottar land. Further a prayer was made for permanent injunction restraining the petitioners and other from interfering with the possession of the deities. The suit is still pending before the Subordinate Judge, Siwan. The opposite party No. 2 is in no way concerned with the land in dispute and has no right, title and possession over the same. The plaintiffs of the suit are not parties to the proceeding under Section 145 of the Code. However, by the impugned order the learned Sub-divisional Magistrate, Siwan ordered for starting of the proceeding under Section 145 of the Code with respect to the suit land. On behalf of the petitioners it has been contended that they have got bona fide title and possession over the land in dispute and the matter is pending determination in the Title Suit before the learned Subordinate Judge, Siwan. On this ground it has been contended that the learned Sub-divisional Magistrate should not have passed the impugned order dated 20-1-1990 for starting a proceeding under Section 145 of the Code with respect to the land in dispute. 5. I have heard the parties. It appears that a Title Suit (Civil Suit No. 34/ 89) was filed by Chandeshwar Singh, Babban Singh, Kanhaiya Singh, Jagarnath Singh and Dineshwar Singh against the present petitioners before the learned Subordinate Judge, Siwan with respect to R.S. plot No. 395 measuring 5 bighas 2 kathas and 3 dhurs. In this suit the plaintiffs had sought the relief that the sale deed executed in favour of the petitioners was not binding on them and the land in question was Sheottar land, over which they claimed their rights as Bataidars. They further prayed for permanent injunction restraining the petitioners from interfering with their possession over the suit land. It also appears that in the said suit a prayer was made for injunction by the plaintiffs. They further prayed for permanent injunction restraining the petitioners from interfering with their possession over the suit land. It also appears that in the said suit a prayer was made for injunction by the plaintiffs. By the order dated 8-1-1990 the prayer for temporary injunction of the plaintiffs of the said suit was rejected by the learned Subordinate Judge, Ist Court, Siwan. The present proceeding under Section 144 of the Code appears to have been started on 20-12-1989 and the impugned order was passed on 20-1-1990 according to which the proceeding was converted into one under Section 145 of the Code. It has seriously been contended on behalf of the petitioners that this could not have been done on the ground that when a Civil litigation is pending for the property wherein the question of possession is involved the initiation of a parallel criminal proceeding under Section 145 of the Code was not justified. In support of their contention the petitioners have placed reliance on the case of Ram Sumer Puri V/s. State, AIR 1985 SC 472 : (1985 Cri LJ 752). In the said case there was an order directing the initiation of a proceeding u/S. 145 of the Code and the order for the attachment of the property. In respect of the same property there was a suit for possession and injunction which was dismissed for default. An appeal against this order of dismissal was filed which was pending disposal In the meantime the proceeding u/ S. 145 of the Code was started and revision filed against the initiation of this proceeding was dismissed by the High Court. It was held by the Hon ble Supreme Court that parallel proceeding should not be allowed to continue and in the event of a decree of the Civil Court, Criminal Court should not be allowed to envoke its jurisdiction particularly when the question of possession has being examined by the Civil Court and the parties were in a position to approach the Civil Court for interim orders such an injunction or the appointment of a receiver during the pendency of the dispute. It was further held that multiplicity of the litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. It was further held that multiplicity of the litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. In the result the order of the Magistrate starting the proceeding under S.145 of the Code and the order of attachment of the disputed property were quashed. 6. In the present case also it appears that a Title Suit was filed (Civil Suit No. 34/89) by Chandeshwar Singh and others against the present petitioners. In the said suit they filled a petition for injunction on 7-12-1989 under Order 39, Rules 1 and 2 of the Code of Civil Procedure for declaration of title confirmation of possession and for injunction. It further appears that as per Annexure-2 the prayer for the injunction was rejected by the Court by the order dated 8-1-1990. From the certified copy of the order passed in Case M 2689/89 it appears that it was for the first time on 20-12-1989 that a police report was received for starting a proceeding u/S. 144 of the Code. The parties were heard in the said proceeding and by the impugned order dated 20-1-1990 the learned Sub-divisional Magistrate order for starting of the proceeding u/S. 145 of the Code. A perusal of the impugners order shows that before the learned Magistrate also reliance was placed on the case of Ram Sumer Puri (supra) but the learned Sub-divisional Magistrate interpreted it to mean that it was only when the matter was adjudicated upon by the Civil Court and a decree was passed that the criminal proceeding under S. 145 of the Code should not be allowed to proceed. It is manifest that the learned Sub-disidional Magistrate has not properly appreciated the decision in the case of Ram Sumer Puri (supra) as in the said decision the Supreme Court has not held that it is only when the Civil Court had passed any decree that the criminal proceeding u/S. 145 of the Code should not be started. As against it was held in the said case that initiation of a parallel criminal proceeding u/ S. 145 of the Code was not justified when a civil litigation was pending for the property where in the question of possession was involved and was adjudicated upon. 7. As against it was held in the said case that initiation of a parallel criminal proceeding u/ S. 145 of the Code was not justified when a civil litigation was pending for the property where in the question of possession was involved and was adjudicated upon. 7. Learned counsel for the Opposite party No. 2 has however, placed reliance on the case of Sajjan Singh son of Jagan Nath Singh V/s. Sajjan Singh son of Bhairu Singh as reported in 1970 UJ (SC) 75. From the facts of the said case it appears that Sajjan Singh son of Bhairu Singh started a proceeding u/S. 145 of the Code against Sajjan Singh son of Jagan Nath Singh in the court of Sub-divisional Magistrate Jodhpur. A preliminary order was passed on 28-10-67 and the Sub-divisional Magistrate ordered attachment of the disputed house under the third proviso to S. 145(4) of the Code. Subsequently Sajjan Singh son of Jagan Nath Singh applied to the Sub-divisional Magistrate on 11-11-1967 that the proceeding be dropped. When this petition was pending, on 24-1-1968 Sajjan Singh son of Jagan Nath Singh filed civil suit No. 50/68 for a permanent injunction against Sajjan Singh son of Bairu Singh. In the said suit he had asked for a temporary injunction so that his own possession might not be disturbed. This temporary injunction was granted on 25-1-1968. Sajjan Singh son of Jagan Nath Singh then moved an application before the Sub-divisional Magistrate producing the order of temporary injunction praying that the proceedings under Section 145 of the Code be stayed. The sub-divisional Magisbate, however, dismissed this petition. A revision petition was filed in the court of Sessions Judge against this order of the Sub-divisional Magistrate rejecting the prayer for the stay of the proceeding u/S. 145 of the Code. The learned Sessions Judge made a reference to the High Court which held that the orders of attachment and appointment of receiver were valid and the Civil Courts temporary injunction had no effect upon the proceeding before the Sub-divisional Magistrate. This order of the High Court was challenged before the Supreme Court in the said case. It was held that the case must go back to the Sub-divisional Magistrate for decision of the proceeding before him which was started as far hack as in the year 1967. This order of the High Court was challenged before the Supreme Court in the said case. It was held that the case must go back to the Sub-divisional Magistrate for decision of the proceeding before him which was started as far hack as in the year 1967. The question whether there is or there is not any apprehension of breach of peace will certainly have to be decided in the light of the happenings in the Civil Court. It was further held that there was no reason to set aside the order of the High Court. 8. The first thing to be noticed in this connection is that this is a decision of the year 1970 whereas Ram Sumer Puri (Supra) case was decided in the year 1985. Another important things to be noticed in this connection is that Civil Suit No. 50/68 does not appear to have been filed wherein the question of possession was involved and was to be decided with respect to the disputed land. On the other hand. as will appear from this decision, the suit was only for permanent injunction against Sajjan Singh son of Bhairu Singh, when temporary injunction was granted by the Civil Court Sajjan Singh son of Jagan Nath Singh filed a petition before the learned Sub-divisional Magistrate that in view of the temporary injunction the proceeding u/S. 145 of the Code should be stayed. The Sub-divisional Magistrate dismissed the said application and asked the Tahshildar to take over the house as a receiver. It is against this order off the Sub-divisional Magistrate that a revision petitions was filed before the Sessions Judge who made a reference to the High Court recommending that the order of appointment of receiver be set aside. The High Court held that both the orders of attachment of the house and the appointment of receiver were valid and the order of temporary injunction passed by Civil Court had no effect upon the proceeding before the Sub-divisional Magistrate. it thus appears that the question for determination before the High Court was whether the order of temporary injunction will have the effect of staying the proceeding before the learned Sub-divisional Magistrate and staying the order of appointment of receiver. It was under this circumstance, that the High Court held that the order of temporary injunction will have no effect on the proceeding before the Sub-divisional Magistrate. 9. It was under this circumstance, that the High Court held that the order of temporary injunction will have no effect on the proceeding before the Sub-divisional Magistrate. 9. The facts of the present case are, however, quite different. Here, as will appear from this petition, that Title Suit No.34/89 was filed not only for injunction but also for declaration that the sale deed executed in favour of the petitioners was not binding on the disputed land. Hence properly speaking the decision in the case of Ram Sumer Puri (Supra) will apply to the facts of the present case and not the decision in the case of Sajjan Singh (Supra). 10. In the result, the impugned order dated 20-1-1990 initiating the proceeding u/S. 145 of the Code with respect to the disputed land is hereby quashed. Application allowed.