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2000 DIGILAW 99 (PNJ)

Rakesh v. Sunita

2000-01-27

M.L.SINGHAL

body2000
JUDGMENT M.L. Singhal, J. - Proceedings under Sections 145/146 Code of Criminal Procedure were initiated between Rakesh son of Sultan Singh (Party No. 1) and Pal Singh and others (Party No. 2) in the Court of Sub Divisional Magistrate, Rewari with regard to land measuring 64 kanals 4 marlas and 26 kanals 15 marlas situated in village Dehlawas Gulabpura, Tehsil and District Rewari. It was alleged by Rakesh that Sultan Singh alongwith his brothers Bhim Singh etc. was in possession as Mustarka Malkan of land measuring 64 kanals 4 marlas and 26 kanals 15 marlas situated in village Dehlawas Gulabpura. Bhim Singh etc. and Sultan separated their cultivation by mutual agreement and they are cultivating separately. At the spot, he (Rakesh) is cultivating land of mustatil No. 29 killa No. 3/3 (2-13) 19(8-9), mustatil No. 32 killa No. 11 on behalf of his father. Pal Singh etc. (second party) got executed an adoption deed, sale deed and lease deed in their favour from Sultan, which was the result of manipulation on their part with Sultan Singh. Pal Singh etc. (second party) threatened that they will not allow him to cultivate the land. He prayed that the land be attached, so that there was no untoward incident with regard to the possession of land, namely the commission of breach of peace. 2. Second party put in written statement urging that Rakesh Kumar (first party) was not co-sharer in the land. In fact, Sultan son of Jawahra was in possession of the property from whom Smt. Sunita (second party) purchased land vide registered sale deed dated 18.4.95 for a sum of Rs. 2 lacs. She became owner of the land since 18.4.95. 3. Land was attached by Sub Divisional Magistrate, Rewari under Section 146 Criminal Procedure Code and vide order dated 15.2.96, Tehsildar, Rewari was appointed as receiver. 4. Against the order dated 15.2.96 attaching land and appointing receiver, Smt. Sunita wife of Pal Singh filed revision, which was dismissed by Additional Sessions Judge, Rewari vide order dated 29.3.96 holding that no revision was maintainable against interim order. 5. Vide order dated 30.1.97, SDM Rewari after recording evidence of both the parties ordered attachment to continue till the disposal of the civil suit and after the decision of the civil suit, parties could take appropriate necessary action. 5. Vide order dated 30.1.97, SDM Rewari after recording evidence of both the parties ordered attachment to continue till the disposal of the civil suit and after the decision of the civil suit, parties could take appropriate necessary action. It may be mentioned here that civil suit filed by Rakesh on 10.5.95 against Sultan and Smt. Sunita was also pending, which was for declaration and injunction with regard to 1/4 share of land measuring 64 kanals 4 marlas and 1/4 share of land measuring 26 kanals 15 marlas, in which he had challenged the sale allegedly effected by Sultan to Smt. Sunita, as being coparcenary property qua him and his father Sultan, who had no necessity to effect the sale and sale was without any legal necessity and consideration and in the sale, no benefit to the joint family was involved nor the same was an act of good management. 6. Smt. Sunita went in revision against the order dated 30.1.97 of SDM, Rewari. Additional Sessions Judges, Rewari vide order dated 25.3.98 allowed the revision and set aside order dated 30.1.97. It was observed that no proceedings under Sections 145/146 Criminal Procedure Code could take place during the pendency of the civil suit. Proceedings under Section 145/146 Criminal Procedure Code were initiated on 29.6.95 while civil suit was instituted on 10.5.95. It was observed that in view of the pendency of the civil suit, there could be no occasion with the SDM Rewari to initiate proceedings under Section 145/146 Criminal Procedure Code or order attachment of the land under section 146 Criminal Procedure Code It was observed that it was not proper for a Criminal Court to hold inquiry on fact side by side when on the same fact, the same inquiry is pending before the Civil Court since before. It was also observed that no proceedings under Sections 145/146 Criminal Procedure Code could be initiated by one co-sharer against another co-sharer when the property has not been partitioned and is continuing to be joint. Rakesh has challenged the order of Addl. Sessions Judge, Rewari dated 25.3.98 and has prayed that order of SDM Rewari dated 30.1.97 attaching the land and appointing receiver be restored. 7. Learned counsel for Rakesh petitioner has submitted that Rakesh petitioner is in possession of land measuring 25 K 15 M. Earlier, this land was in possession of his father Sultan. Sessions Judge, Rewari dated 25.3.98 and has prayed that order of SDM Rewari dated 30.1.97 attaching the land and appointing receiver be restored. 7. Learned counsel for Rakesh petitioner has submitted that Rakesh petitioner is in possession of land measuring 25 K 15 M. Earlier, this land was in possession of his father Sultan. Sultan was missing for the last several years and his whereabouts are not known. It was submitted that the respondents are bent upon grabbing the land of the possession of Rakesh. Adoption deed is false and fabricated. Sultan could never adopt Pal Singh when he had his own son. Pal Singh etc. are the collaterals of Sultan Singh. They were all out to grab the land of Sultan Singh taking advantage of his absence and the raw age of Rakesh. With that object, they manipulated adoption deed on 10.4.95. On 18.4.95, they manipulated lease deed in which it was falsely shown that Sultan had leased the land to Jagdish son of Dev Dutt for a period of 99 years. On 18.4.95, sale deed was manipulated in favour of Sunita Wife of Pal Singh for a sum of Rs. 2 lacs from Sultan. It was submitted that Pal Singh was never adopted by Sultan. Sultan never executed lease deed and sale deed. All this was manoeuvred with a view to grab the land of Sultan. It was submitted that when they tried to interfere with his possession of land measuring 22 K 15 M on the strength of adoption deed, lease deed and sale deed, poor and helpless Rakesh launched proceedings under Section 145/146 Criminal Procedure Code It was submitted that SDM Rewari justifiably attached land and appointed receiver as there was genuine dispute between the parties over possession and the dispute over possession was likely to give rise to breach of peace between them. 8. In was submitted by the learned counsel for the petitioner that pendency of the Civil suit should not have influenced the finding of the Additional Sessions Judge as in civil suit, Rakesh did not raise any dispute regarding possession. 8. In was submitted by the learned counsel for the petitioner that pendency of the Civil suit should not have influenced the finding of the Additional Sessions Judge as in civil suit, Rakesh did not raise any dispute regarding possession. His prayer was that he had 1/4 share in land measuring 64 K 4 M and he had 1/4 share in land measuring 26 K 15 M as being coparcener with his father, land was joint Hindu family and coparcenary property, which his father had no right to alienate without legal necessity and consideration or benefit to the joint family and that the sale said to have been effected by his father on 18.4.95 in favour of Smt. Sunita be set aside as it is ineffective so far as his rights are concerned and that Smt. Sunita be restrained from alienating the land further. 9. It is true that when civil suit is already pending between the parties, in which the question of possession is in issue, no order under section 146 Criminal Procedure Code can be passed by the Executive Magistrate attaching the property and appointing receiver therefor. Order under section 146 Criminal Procedure Code can be passed where no definite finding can be given as to which party is in possession of the property in dispute or in case of emergency. It was held in Kundan Singh v. Sadhu Singh and others, 1997(2) CLR 49 that Section 146 Criminal Procedure Code comes to aid where after passing final order under Section 145 Criminal Procedure Code, no definite finding can be given in favour of a party or there are such other compelling circumstances, which necessitate the appointment of receiver or attachment of property. Proceedings under Section 145/146 Criminal Procedure Code cannot be commenced when there is no dispute as to possession and when one party is in settled possession. Similarly, noproceedings under Section 145/146 Criminal Procedure Code can be competent when the question of possession is in issue before the Civil Court since before. Proceedings under Section 145/146 Criminal Procedure Code cannot be commenced when there is no dispute as to possession and when one party is in settled possession. Similarly, noproceedings under Section 145/146 Criminal Procedure Code can be competent when the question of possession is in issue before the Civil Court since before. While exercising power under Section 145/146 Criminal Procedure Code, the Magistrate cannot give finality to the rights of the parties but merely grants temporary relief with the principal object of preventing breach of peace, maintain law and order in the area under jurisdiction of that Magistrate." It was held in Mathura Lal v. Bhanwar Lal and another, AIR 1980 Supreme Court 242 by Honble Supreme Court that "Sections 145/146 of the Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land etc." 10. In Om Parkash v. State of Haryana and others, 1996(1) RCR 732 it was held by this Court that "mere pendency of a civil suit about same subject matter between the same parties or the orders passed by Civil Court to maintain status quo or other orders of this type do not restrain the criminal Court from exercising jurisdiction under Section 145 Criminal Procedure Code" In Ashok Kumar Vajpai v. State of Haryana, 1996(1) RCR 773 it was held that "where a Magistrate cannot decide which party was in actual possession, the Magistrate is empowered to attach the property. No hearing is required to be given when case is one of emergency." 11. In Malkiat Singh v. State of Punjab and another, 1997(2) Recent CR 303 it was held that "where civil suit involving dispute regarding possession is already pending between the parties and the dispute over possession of land is raised before the Magistrate in proceedings under section 145 Criminal Procedure Code, in such a situation, no proceedings under Section 145/146 Criminal Procedure Code are competent. Magistrate is not to appoint receiver. If due to dispute over possession, there is likelihood of breach of peace, proceedings under Section 107/151 Criminal Procedure Code can be initiated. Magistrate is not to appoint receiver. If due to dispute over possession, there is likelihood of breach of peace, proceedings under Section 107/151 Criminal Procedure Code can be initiated. It was held in Gurmej Singh v. State of Haryana, 1997(2) Recent CR 556 that "once civil suit is pending and question of possession can well be gone into by the Civil Court, it is improper for the Magistrate to initiate action under Section 145/146 Criminal Procedure Code" In Mohinder Singh and others v. The State of Punjab and others, 1989 All India Criminal Law Reporter 133 it was held that "during the pendency of the suit, no proceedings under Section 145/146 Criminal Procedure Code are competent regarding the same subject matter. Criminal Court cannot decide the question of possession when the same question is pending adjudication before the Civil Court." In Dharampal and others v. Smt. Ramshri and others, 1993(1) RCR 696 Honble Supreme Court observed that "where on dispute over possession of property, order of attachment was passed by Magistrate and the Civil Court subsequently passed an order of injunction and appointed receiver, order of attachment passed by Magistrate comes to an end. Possession had to be handed over to receiver appointed by civil Court." There is thus a catena of authorities where it has been observed that "where question of possession is pending adjudication before the civil Court, no proceedings under Section 145/146 Criminal Procedure Code can be initiated before the Executive Magistrate. In Pritam Singh alias Pritam Dass and others v. State of Punjab and another, 1985(1) RCR 525, respondents had launched proceedings under section 145 Criminal Procedure Code in July 1984. Petitioners filed Civil Suit in August, 1984 and obtained temporary injunction restraining respondents from dispossessing the petitioners. SDM ordered the attachment of land in October. It was held that "proceedings under section 145 Criminal Procedure Code were abuse of the process of law. Proceedings under section 145 Criminal Procedure Code were quashed under section 482 Criminal Procedure Code 12. In the case in hand, facts are different. In the civil suit filed by Rakesh on 10.5.95, he had not at all pleaded that he was in possession and his possession was being interfered with. It was a simple suit where he had challenged the sale allegedly effected by his father Sultan in favour of Smt. Sunita concerning joint Hindu family and coparcenary property. In the civil suit filed by Rakesh on 10.5.95, he had not at all pleaded that he was in possession and his possession was being interfered with. It was a simple suit where he had challenged the sale allegedly effected by his father Sultan in favour of Smt. Sunita concerning joint Hindu family and coparcenary property. Pendency of this suit should not have influenced the mind of Additional Sessions Judge in vacating the order passed by SDM. In application under section 145 Criminal Procedure Code Rakesh has alleged that his father was in exclusive possession of 22 K 15 M. His fathers whereabouts are not known for the last several years and as such he is an exclusive possession. While attaching land and appointing receiver, SDM took into account the report of the police of police station Sadar, Rewari that dispute as to possession between the parties could give rise to breach of peace at any time. SDM passed order dated 30.1.97 after recording evidence and coming to the conclusion that there is a serious dispute between the parties over possession and there could be breach of peace between them over the dispute of possession any time. Order passed under Section 145/146 Criminal Procedure Code by the Magistrate is only a temporary order with the principal object of securing the prevention of breach of peace. Order passed under Section 145/146 Criminal Procedure Code by the Magistrate is not decisive of the rights of the parties finally. Such orders are subject to determination of the rights by the civil Court. 13. For the reasons given above, impugned order passed by Additional Sessions Judge, Rewari dated 25.3.98 is set aside and the order dated 30.1.97 passed by SDM Rewari attaching land and appointing receiver is restored. Criminal Revision is thus allowed. Revision allowed.