Kalyaniammal v. Krishnasamy Gounder and others — 1993 DIGILAW 662 (MAD)

Judgment : One Chandrasekara Udayar is the original owner of two pieces of land measuring 0.10.0. hectares in R.S.No. 76/1 and 0.40.5. hectares in R.S.No. 32/7 of Konjimangalam village, East Vanur Taluk in South Arcot District. The present first respondent Krishnasamy Gounder, claiming that he is a cultivating tenant of the land under Chandrasekara Udayar and that the petitioner and respondents 2 and 3 herein are trying to dispossess him, filed an application under Sec. 145, Crl.P.C. in M.C.No. 7 of 1987 before the Executive Second Class Magistrate, Vanur. He also took steps to get his name registered as a tenant under the Record of Tenancy Act. The petitioner who is the wife of Chandrasekara Udayar pleaded therein that item 1 of the lands has been settled by her husband on their daughter Santhanalakshmi under the deed dated 2. 1970. She has been appointed as guardian of the minor daughter in the said settlement deed. The second item is the ancestral land of her husband. They had not leased out the land to anybody and they alone were cultivating the same. The present first respondent and others in order to grab the property instituted O.S.No. 679 of 1985 in respect of these lands in the court of District Munsif of Tindivanam and obtained an ad interim injunction. However after enquiry the petition was dismissed and the injunction was vacated. C.M.A.No. 5 of 1987 preferred by the first respondent and others against the said order is still pending. In the impugned order dated 13. 1990, learned Executive Magistrate has stated that the petitioner has filed O.S.No. 1104 of 1989 in the Court of District Munsif, Tindivanam claiming title to item I of the suit properties and that in the same Court her daughter Santhanalakshmi also has instituted O.S.No. 83 of 1986 claiming the property as hers and that both suits are pending. The order of the Magistrate also reads that O.S.No. 679 of 1985 was pending and the evidence on record establishes that item 2 of the properties was not in the enjoyment of Kalyani Ammal and others and that he was dismissing the application. Evidently this order is not intelligible. It is not known what were the records considered and how they led to that conclusion. 2. Learned counsel for the petitioner submits that while A.S.No. 83 of 1986 was dismissed for default on 23. Evidently this order is not intelligible. It is not known what were the records considered and how they led to that conclusion. 2. Learned counsel for the petitioner submits that while A.S.No. 83 of 1986 was dismissed for default on 23. 1990 no appeal against the decree in O.S.No. 679 of 1985 is pending. The injunction petition I.A.No. 1503 of 1985 in O.S.No. 679 of 1985 filed by the tenant in the civil court in respect of the very same property between the parties herein has already been dismissed. The appeal preferred by the first respondent was also unsuccessful Thus the civil court has held in O.S.No. 679 of 1985 that the petitioner is in absolute enjoyment of the property. When a competent civil court has found possession in favour of the petitioner, this order of the Executive Second Class Magistrate under Sec. 145, Crl.P.C. is unsustainable. 3. We shall proceed to deal with the rival contentions of the parties. In Ram Sumer Puri v. State of Uttar Pradesh, A.I.R. 1985 S.C. 472, cited by learned counsel for the petitioner a title suit for possession and injunction in respect of certain property was instituted before the civil court. The suit was dismissed. During the pendency of the appeal, proceedings under Sec.145, Crl.P.C were initiated with regard to the same property. In that proceedings the Magistrate has passed a preliminary order under Sec. 145(1), Crl.P.C. and also attached the property. The aggrieved party challenged that order in revision. The High Court refused to interfere with the said order. But the Apex Court while quashing the proceedings under Sec.145, Crl.P.C. observed 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,pubIic time be allowed to be wasted over meaningless litigation.” 4. Whereas Miss Sumathi learned counsel for the first respondent contended that the concluded order made by the Magistrate of competent jurisdiction should not beset at naught merely because the unsuccessful party has approached the civil court. An order made under Sec.145, Crl.P.C. deals only with the factum of possession of the party as on a particular day. In support of her claim she placed before this Court the decision in Jhunamal v. State of Madhya Pradesh, A.I.R. 1988 S.C. 1973: J.T. (1988) 3 S.C. 479: (1988) 2 Ker.L.J. 355. In that case the property was in possession of the mortgagee who is said to have leased out the same to the petitioner and also delivered possession thereof. The entering of possession by the petitioner became the subject matter of dispute. Apprehending breach of peace, the Police initiated proceedings under Sec.145, Crl.P.C. The Magistrate made a preliminary order. The proceedings continued for about 3 years. The Magistrate made the final order holding that the petitioner is entitled for the occupation of the shop unless he is evicted by procedure established by law. Subsequently the respondent filed a suit for injunction and obtained temporary injunction against the petitioner. But an appeal the temporary injunction was vacated by the District Judge. After became unsuccessful in the proceedings under Sec.145, Crl.P.C. and also in the civil court in the suit for injunction the respondent moved the High Court under Sec.482, Crl.P.C. to quash the proceedings under Sec.145, Crl.P.C. The High Court accepted the petition and quashed the proceedings by following the judgment of the Supreme Court in Ram Sumer Puri case, A.I.R. 1985 S.C. 471 When the matter came up before the Apex Court, the intent and purport of Ram Sumer Puri’s case, has been explained in this decision cited by respondent in this manner. “It is true that in cases of dispute regarding immovable property a party should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the same subject matter. “It is true that in cases of dispute regarding immovable property a party should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the same subject matter. That does not however mean that a concluded order under Sec.145, Crl.P.C. made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the civil court An order made under Sec.145, Crl.P.C. deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil court. The unsuccessful party therefore must get relief only in the civil court. He may move the civil court with properly constituted suit. He may filed a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached”. 5. Learned counsel for the first respondent/tenant also relied on the decision of this Court in Nagarathinam v. Sub-Divisional Magistrate, Thanjavur, 1993 Crl.L.J. 1285. The question there was whether simply because a civil suit was filed will it operate as a total bar for initiation of any proceedings under Sec. 145, Crl.P.C. Held: Unless there is an order or decree binding upon the parties, mere filing of a civil suit at an earlier point of time, cannot act as a cover up for all acts done by the plaintiff with regard to the suit property at any subsequent point of time through his action gives rise to circumstances warranting initiation of proceedings under Sec.145, Crl.P.C. 6. The contention of the petitioner however is that oven prior to the filing of application under Sec.145, Crl.P.C. the civil court has dismissed the injunction petition filed by the present first respondent/ tenant in respect of this property. Since the competent civil court was already in seizure of the entire property and is in favour of the present petitioner, the impugned order of the Executive Magistrate is unsustainable. As the Apex Court has held in Jhunamal v. State of Madhya Pradesh, A.I.R. 1988 S.C. 1973: J.T. (1988) 3 S.C. 479: (1988) 2 Ker.L.J. 355: “Sec.145 is intended to provide a special remedy for the prevention of breach of peace arising out of a dispute relating to immovable property. As the Apex Court has held in Jhunamal v. State of Madhya Pradesh, A.I.R. 1988 S.C. 1973: J.T. (1988) 3 S.C. 479: (1988) 2 Ker.L.J. 355: “Sec.145 is intended to provide a special remedy for the prevention of breach of peace arising out of a dispute relating to immovable property. Its primary object is to maintain the public peace and not to decide disputes between the contending parties or adjudicate upon the rights of the parties to possession. Now, that the civil court is seized of the matter, it is desirable that such parallel proceedings in respect of the same subject-matter and dispute should not be allowed to continue in the criminal courts as it amounts to an abuse of the process of the court which is one of the grounds for invoking Sec. 482, Crl.P.C.”. 7. So it cannot be disputed that the decree of the civil court is binding on the criminal court in a matter like this. The ratio of the decision in Ram Sumer Puri v. State of Uttar Pradesh, A.I.R. 1985 S.C. 472, is that a party should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the same subject-matter. In this case the civil court has already negatived the plea of the first respondent/tenant for injunction. In other words the civil court has not recognised the possession claimed by the tenant. While so, it is not open to the Executive Magistrate to take a contrary view and pass an order under Sec.145, Crl.P.C. that the possession re-named with the tenant. Once the civil court passes a decree on the subject-matter of the proceedings, it is binding upon the Magistrate; If the civil court had passed a decree prior to the initiation of proceedings under Sec. 145, Crl.P.C., there is no scope for the Magistrate to take action under Sec. 145, Crl.P.C. and decide the question of possession. 8. In any event, in the impugned order the Magistrate has not declared that the tenant is entitled to be in possession thereof until evicted therefrom in due process of law. While so, the argument of learned counsel for the first respondent-tenant that he is entitled to protection from disturbance of such possession until eviction by due process of law has ho substance. While so, the argument of learned counsel for the first respondent-tenant that he is entitled to protection from disturbance of such possession until eviction by due process of law has ho substance. Since the tenant has failed to secure an injunction order in the civil court on the basis of his possession, the Executive Magistrate cannot ignore this factor and proceed to pass an order Under Sec.145, Crl.P.C. 9. In the result, the criminal revision case is allowed and the order dated 13. 1990 in M.C.No. 7 of 1987 of the Executive Second Class Magistrate, Vanur, is set aside.