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2000 DIGILAW 634 (PNJ)

Nahar Singh v. State of Punjab

2000-06-02

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This petition is being disposed of separately and stands detached from R.S.A. Nos. 662 and 1184 of 1994. 2. Nahar Singh, petitioner, has filed the present petition under Section 482, Criminal Procedure Code against the respondents for the quashment of the Kalandra filed by the S.H.O., Police Station, Raikot, Distt. Ludhiana (Respondent No. 3) under Section 145, Criminal Procedure Code along with the order of the S.D.M., Raikot dated 7.2.2000, Annexure P-10, and all proceedings taken in pursuance of the order dated 20.12.1999 pending before the S.D.M., Raikot. 3. The facts are not much in dispute but only the question of law is involved. Admittedly, the land belongs to Dera Udasian, which is the owner to the extent of 19 kanals 5 marlas but the dispute in the present case is with regard to the land measuring 39 kanals comprised in khasra Nos. 590, 591, 592, 593, 594 and 599 min. The area of 39 kanals was earlier in the tenancy of Niranjan Singh. Petitioner and respondents 5 and 6; namely, Nirmal Singh and Mohinder Singh are real brothers and they are sons of Niranjan Singh. Niranjan Singh was occupying the area measuring 39 kanals comprised in the khasra Nos. stated above, in the capacity of a tenant under the Dera. Niranjan Singh died somewhere in the year 1983. The petitioner and respondents 5 and 6, being tenants in common, inherited the tenancy rights of Niranjan Singh. It appears that thereafter some dispute arose amongst the brothers with Nirmal Singh and Mohinder Singh on one side and the petitioner Nahar Singh on the other side. On the application of Nirmal Singh and Mohinder Singh, SHO, Police Station, Raikot, started the proceedings under Section 145, Criminal Procedure Code According to the SHO, there was likelihood of the breach of peace with regard to the area in dispute and he submitted the Kalandra, Annexure P-6, before the learned SDM, Raikot, who passed the preliminary order dated 20.12.1999, under Section 145, Criminal Procedure Code and also appointed a Receiver. Nahar Singh is not satisfied with the proceedings taken up by the SDM, therefore, he has filed the present petition under Section 482 Criminal Procedure Code, seeking quashment of the proceedings under Section 145, Criminal Procedure Code and all subsequent proceedings taken by the SDM, on the ground that since the contesting parties, i.e. the petitioner and respondents 5 and 6, are tenants in common, after the death of their father Niranjan Singh, in such a situation, the proceedings under Section 145, Criminal Procedure Code are nothing but an abuse of process of law as the possession of the contesting parties will be considered as joint. 4. Notice of the petition was given to the respondents. Respondents 1 to 4 have filed one set of written statement and the State has tried to justify the proceedings under Section 145, Criminal Procedure Code For our purposes, the stand taken up by respondents 5 and 6 in their written statement is relevant. According to this written statement, the land in dispute was being cultivated by Niranjan Singh till his death with the help of all the three brothers and after his death, this land is being cultivated jointly as they had inherited the tenancy rights of their father. 5. In these circumstances, the legal point which arises in this case is whether the proceedings under Section 145, Criminal Procedure Code can be initiated when the contesting parties are tenants in common. 6. Section 145, Criminal Procedure Code lays down that whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. 7. A reading of the above provision would show that the object of these proceedings is to avoid breach of peace with respect of immovable property amongst the conflicting parties and call upon the parties to give their written submissions with respect to the actual physical possession of the land. 7. A reading of the above provision would show that the object of these proceedings is to avoid breach of peace with respect of immovable property amongst the conflicting parties and call upon the parties to give their written submissions with respect to the actual physical possession of the land. Thus, it can be said that the object of this section is to enable a Magistrate to interfere and pass temporary order in regard to the possession of property in dispute having effected until the actual right of one of the parties has been determined by a competent civil court. 8. After the death of Niranjan Singh, the status of the petitioner and respondents 4 and 5 is like co-tenants because the tenancy rights have not been petitioned by metes and bounds. We can say that the rights of co-tenants, more or less, can be governed on the same footing as that of co-sharers where also the rights with regard to the possession of the co-sharers are indivisible and indefinite till the land is divided or partitioned by metes and bounds. 9. During the course of arguments, my attention was invited to the latest jamabandi for the year 1993-94 where the possession of the above mentioned khasra Nos. has been shown as that of Nahar Singh, Nirmal Singh and Mohinder Singh sons of Niranjan Singh son of Sohail Singh, in equal shares as Gair Marusian. The factual position, however, at the spot is that the land measuring 11 kanals 15 marlas comprised in khasra Nos. 593 and 594 is in actual physical possession of Mohinder Singh. The rest of the land comprised in khasra Nos. 590, 591, 592 and 599 min. is in actual physical possession of Nahar Singh, petitioner. Under the law, as I understand, the possession of Nahar Singh is also on behalf of other tenants in common; namely; Mohinder Singh and Nirmal Singh, and similarly, the possession of Mohinder Singh is on behalf of Nahra Singh and Nirmal Singh also. In other words, in the entire area of 39 kanals all the brothers are tenants in common. In such a situation, when the rights of the parties are indefinite with regard to the area, whether it is appropriate and expedient on the part of the police authorities to invoke the provisions of Section 145, Criminal Procedure Code ? The answer of this court is in the negative. In such a situation, when the rights of the parties are indefinite with regard to the area, whether it is appropriate and expedient on the part of the police authorities to invoke the provisions of Section 145, Criminal Procedure Code ? The answer of this court is in the negative. Under the garb of Section 145, Criminal Procedure Code, a tenant in common or a co-sharer should not approach the police authorities to take preventive action as it tantamounts to depriving a co-sharer/tenant in common of his right to enjoy the possession which he is otherwise legally entitled to. Even if a co- sharer/tenant in common is in excess of the area which he might get in the partition proceedings, still the right of the party affected is to approach the revenue authorities or to the civil court as the case may be. 10. Counsel for the respondents 4 and 5 submitted that the object of Section 145, Criminal Procedure Code is totally different. This provision has been introduced in the Code with a purpose to prevent the breach of peace in relation to an immovable property. These are summary proceedings, a sort of temporary arrangement with regard to the management of the land and it does not prevent the executive authorities to invoke its powers and jurisdiction in filing a Kalandra under Section 145 Criminal Procedure Code and also it does not prevent the Executive Magistrate from proceedings into the matter according to law. Counsel for respondents 5 and 6 drew my attention to the judgment reported in Nandkeshwar Prasad Sahi v. Sita Saran Sahi, AIR 1932 Patna 366, wherein it was held as under :- "In our opinion this reference must be discharged. We are unable to accept as correct the view of the law which found favour in the decisions of this Court which have been referred to, the only condition for a proceeding under Section 145 terminating in a finding under sub-section (4) and an order under sub- Section (6) or an order under Section 146 is that the Magistrate should be satisfied on information before him that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction. Thereupon he is to call for written statements from the parties concerned in the dispute "of their respective claims as respects the fact of actual possession of the subject of dispute" and he is to determine whether any and which of the parties was at the date of the order initiating proceedings in such possession of the said subject. The jurisdiction of the Magistrate to initiate proceedings under Section 145 is subject only to the limitation provided in the section itself. It is altogether wrong to graft limitations upon the enactment which the legislature has not placed there. In the present instance and in instances of a like kind there exists a dispute likely to cause a breach of the peace concerning the actual possession of land. Because one set of persons claim exclusive possession over the major portion of it while the other set of persons claim to be in joint possession along with them of the entire land the dispute may be difficult to decide (though it need not be if the Magistrate remembers what he has to decide and does not wander away into complicated or but dimly relevant questions of civil right), but it is in principle no less a question of disputed actual possession that if each party claimed exclusive possession of the entire area. In our judgment there is nothing in Section 145 or elsewhere in the Code of Criminal Procedure which renders it inapplicable to the case referred and similar cases." 11. I have gone through this judgment and in my opinion, this judgment goes against respondents 5 and 6. In Chand Rattan & ors. v. Shan Rattan & ors., 1989(2) CLR 679, a Single Judge of this court held that where the property in dispute is in joint possession of the parties, the proceedings under Section 145, Criminal Procedure Code in respect to that property are not maintainable. It was further observed that such proceedings cannot be initiated on the ground that one member of the joint family is in actual and exclusive possession of part of the family property. The object of the section is to determine about the actual physical possession and in a case of tenants in common or co-sharers, the fact of actual physical possession cannot be determined. 12. The object of the section is to determine about the actual physical possession and in a case of tenants in common or co-sharers, the fact of actual physical possession cannot be determined. 12. In Bhawan Pal v. Prem Kumar Jain & ors., 1982 CLR 121, it was, again, observed by this High Court that the proceedings under Section 145, Criminal Procedure Code cannot be initiated in respect of the property which is in joint possession of the parties. In this view of the matter, this court is of the opinion that in a case where the parties are in joint possession or deemed joint possession, the police should not resort to the proceedings under Section 145, Criminal Procedure Code Rather, it should relegate the parties to approach the revenue or the civil authorities as the case may be to enforce their right, according to law. 13. Resultantly, this petition is allowed and the Kalandra submitted by the SHO, Police Station, Raikot, and all the orders passed by the S.D.M. Raikot, in these proceedings with the consequential proceedings are quashed. No costs. Petition allowed.