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2002 DIGILAW 32 (GAU)

Anup Kumar Sanyal v. Gokul Bey (Mikir)

2002-01-11

R.S.MONGIA

body2002
R.S. MONGIA, CJ. — Shri Anup Kumar Sanyal, the present petitioner (hereinafter referred to as the First Party) had filed a petition u/s 1457 146 CrPC against the respondents Shri Gokul Bey (Mikir) and Shri Gopal Bey (Mikir) (both are brothers) and two others for drawing up proceedings for preventing breach of peace regarding possession of land described in the schedule to the petition. This petition was filed on 26.11.1992. The allegations made in the petition were that the first party purchased an area of 23 Bs 1 K and 5 Ls of land described in the schedule from respondent Shri Gakul Bey by an unregistered deed dated 13.2.1990 and the vendor had delivered vacant possession of the land to the vendee first party on the same day and since then the first party was in peaceful possession of the land in question. In the petition it was alleged that the first party had grown sali paddy in the land and the same was about to be harvested and it was further alleged that on 9.1.1992 the second party, the alleged vendor Shri Gakul Bey alongwith his men armed with deadly weapons attacked the first party while he went to the land and entered into the land for harvesting paddy by force. Proceedings u/s 145 CrPC were drawn up against them. The disputed land was attached u/s 146 CrPC. On 22.4.93 the respondent (second party) filed a written statement alongwith an application u/s 145(5) for dropping of the proceedings. The learned Executive Magistrate after considering the police report was of the view that there was apprehension of breach of peace and rejected the application filed u/s 145(5) CrPC. Aggrieved, by the aforesaid order a revision petition was filed and on that revision petition the learned Additional Sessions Judge, Kamrup, Guwahati remanded the proceeding to the learned trial Court to look into whether any civil suit for the same subject matter was pending. It was further directed that the Executive Magistrate would discuss the matter and pass order in accordance with law. The Executive Magistrate passed an order on 27.5.94 wherein, it was inter alia, observed as under :- "The second party submits that in the present proceeding that there are several suits for the same subject matter and the proceeding under Section 145, CrPC cannot continue on the matter. The Executive Magistrate passed an order on 27.5.94 wherein, it was inter alia, observed as under :- "The second party submits that in the present proceeding that there are several suits for the same subject matter and the proceeding under Section 145, CrPC cannot continue on the matter. The 1st party submits that there is no civil suit for the same subject matter. However, the contesting parties of the T.S. No. 102/90 and the present proceeding u/s 145 CrPC appearing to be not the same. Further since the order of the learned Additional Sessions Judge did not stay the order dated 5.7.93 passed by this Court, the submissions made by the 2nd party is not applicable in this case. Fix 4.6.94 for evidence of the 1st party." 2. Against the aforesaid order, the second party filed a revision petition before the Additional Sessions Judge. The same was allowed by the Additional Sessions Judge by the order dated 8.3.95 quashing the order dated 27.5.94. The present petition has been filed u/s 482 CrPC read with Article 227 of the Constitution of India. 3. Learned counsel for the petitioner (first party) before the Executive Magistrate argued that in fact no revision petition lay before the Additional Sessions Judge in view of the provisions of sub-section (2) of Section 397 CrPC, inasmuch as, the order dated 27.5.94 was an interlocutory order and not a final order. He also submitted on merits that in T.S. No. 102/90 the parties are not the same; the plaintiffs in that suit who are 4 in number are not the parties in the proceedings u/s 145 CrPC. Both party No. 1 and 2 are rather the defendants in the suit. The plaintiffs in that suit prayed for specific performance of an alleged contract for sale entered into between party No. 1 with the plaintiff as attorney holder of party No. 1 (defendant No. 1 in the civil suit). Learned counsel argued that apart from the fact that the parties to the suit are different than under the proceedings u/s 145 CrPC, the subject matter is also different. The dispute in the suit is not regarding possession inter se between the parties to the proceedings u/s 145 CrPC. 4. I have heard the learned counsel for the parties and .perused the record. The dispute in the suit is not regarding possession inter se between the parties to the proceedings u/s 145 CrPC. 4. I have heard the learned counsel for the parties and .perused the record. There cannot be any doubt in the proposition of law that if the matter regarding possession is a subject matter of civil litigation between the same parties, the Court u/s 145 CrPC must stay its hands. However, in the present case, I find that there is no civil litigation between the parties, i.e., the first party and the second party regarding the possession of the land in question. Learned counsel for the respondent argued that in the civil suit it had already been held that party No. 1 did not hold a valid power of attorney on the day the alleged agreement to sell was entered into and therefore the agreement to sell the land cannot be said to be valid and the suit had been dismissed on that ground. Incidentally it may be mentioned that there was no issue framed as to who was in possession of the land between the present parties. According to him, the learned revisional Court went wrong jurisdictionally to hold that there should have been some discussion regarding the nature of the suit etc. As observed above, the Executive Magistrate had observed that the civil suit is between different parties. I have already discussed the nature of the suit. The same had nothing to do with the dispute between the parties before me regarding inter se possession of the land. I the proceedings u/s 145 Cr.P.C. the Executive Magistrate prima facie comes to a conclusion as to which party is in possession and the same should be allowed to be kept in tact for keeping peace between the parties. It has no binding effect between the parties, inasmuch as, such a finding can always be challenged before a civil Court and the civil Court is not bound by a prima facie finding that may be recorded by Presiding Officer u/s 145 CrPC. 5. For the view I have taken in the matter, I refrain myself from going into the point as to whether any revision lay before the Additional Sessions Judge against the order dated 27.5.94. 6. 5. For the view I have taken in the matter, I refrain myself from going into the point as to whether any revision lay before the Additional Sessions Judge against the order dated 27.5.94. 6. For the foregoing reasons, I allow this revision petition and quash the order dated 8.3.1995 passed by the Additional Sessions Judge, Kamrup, Guwahati in Crl. Revn. No. 85/1994 and direct the Executive Magistrate, Kamrup Guwahati to proceed further in accordance with law. The matter be disposed of expeditiously.