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2002 DIGILAW 633 (PNJ)

Harnam Singh v. Mall Singh

2002-07-03

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. Harnam Singh, petitioner in this petition seeks quashing of order dated 20.11.2000 passed by the Additional Sessions Judge, Ferozepur. 2. In order to decide the controversy raised in the present petition a few facts need to be noticed. Land measuring 14 Kanals 8 Marlas comprising in Khasra No. 11M/1(8-0), 10/2(4-0), 11/1(2-0), 3/2/2(0-8) was purchased by Mall Singh resident of Attuwala out of the joint Khata of Sunderwalas which was under the possession of Arjan Singh. The possession of the land was taken by Mall Singh vide Rapat No. 422 dated 13.6.1995. Mall Singh claimed that he had sown Makki, Jawar etc. in the aforesaid land which was harvested forcibly by Arjan Singh the other party. FIR No. 104 of 1995 under Sections 447, 427, 148 and 149 I.P.C. was also registered against him. After the completion of investigation the case is pending in the Court. Arjan Singh, Party No. 1 claiming himself to be in possession of the above mentioned disputed land wanted to cultivate land which was resisted by Bhag Singh which led to altercation between them and apprehension of breach of peace. A civil suit was also filed in which the order of status quo was passed by the Civil Judge (Junior Division), Ferozepur. Without waiting for the decision of the Court, both the parties were bent upon to commit breach of peace. Consequently, calendra was drawn by the Police. After affording opportunity to the parties, the Executive Magistrate, Ferozepur came to the conclusion that as civil suit in relation to the land in dispute was pending in the civil Court and for correction of Khasra Girdawri proceedings were pending before the Commissioner, Ferozepur Division, no parallel proceedings could be allowed under Section 145 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code). Resultantly, he dismissed the calendra as per order dated 28.2.1997. 3. Subsequently, the same very Executive Magistrate, Ferozepur, who had passed order dated 28.2.1997 took up the matter again and held as per order dated 12.5.1997 that Arjan Singh etc. were in possession of the suit land and were entitled to retain the possession until ousted by the Courts of law. Order dated 12.5.1997 was challenged in Criminal Revision No. 2 dated 19.5.1997 before the Additional Sessions Judge, Ferozepur. were in possession of the suit land and were entitled to retain the possession until ousted by the Courts of law. Order dated 12.5.1997 was challenged in Criminal Revision No. 2 dated 19.5.1997 before the Additional Sessions Judge, Ferozepur. The Additional Sessions Judge, Ferozepur took notice of the fact that in the suit filed for permanent injunction and seeking protection of his possession over the suit land by Mall Singh against Arjan Singh had been decreed by the Civil Judge (Junior Division), Ferozepur on 8.9.1997 wherein Arjan Singh and others were restrained from interfering in possession of Mall Singh over suit land except over land in Khasra No. 20 Mustil/2/2/2. In Civil Appeal No. 27 of 22.9.1997 decided on 10.5.1999 the order of the Civil Judge (Junior Division), Ferozepur was set aside by the Additional District Judge, Ferozepur holding that Arjan Singh etc. were in possession of the land in dispute. The learned appellate Court had also referred to the decision rendered by the Additional District Judge, Ferozepur in Civil Appeal No. 53 of 26.2.1997 titled Arjan Singh v. Jagir Singh etc. and came to the conclusion that controversy regarding possession has already been decided by the Civil Court and for that reason impugned order could not have been passed by the Executive Magistrate. It was further stated by him that judgment passed in Civil Suit No. 411-1 of 10.11.1986, titled Arjan Singh v. Sunder etc. was not relevant for the decision of this case because that was a suit for specific performance in respect of part of the suit land in dispute which decree was affirmed by the Additional District Judge, Ferozepur in Civil Appeal No. 198 of 1989/90 and No. 202 of 1989/90, decided on 14.11.1991. Civil Suit No. 480-1 of 15.3.1993, decided on 16.5.1997 between Arjan Singh and Walia etc. was termed to be not relevant to determine the dispute because in that suit a declaration was sought in respect of the sale deed dated 28.8.1992 regarding land measuring 7 kanals 3 marlas regarding which dispute had arisen between the parties. In view of the above noted circumstances it came to the conclusion that controversy in question had already been decided by the Civil Court in appeal and as such those findings will prevail over the impugned orders. Consequently, revision petition was accepted and the impugned order was set aside as per order dated 20.11.2000. In view of the above noted circumstances it came to the conclusion that controversy in question had already been decided by the Civil Court in appeal and as such those findings will prevail over the impugned orders. Consequently, revision petition was accepted and the impugned order was set aside as per order dated 20.11.2000. It is this order which has been assailed in this petition. 4. I have heard learned Counsel for the parties at length. 5. During the course of arguments, learned Counsel for the petitioner could not explain how after the Executive Magistrate, Ferozepur as per order dated 28.2.1997 had dismissed the calendra filed under Section 145 of the Code, he could revive the controversy by taking up the matter all over again and pass order dated 12.5.1997 declaring Arjan Singh etc. to be in possession of the land in dispute. Manifestly, after passing the order dated 28.2.1997, the Executive Magistrate was not competent to revive the proceedings and declared Arjan Singh to be in possession of the land in dispute as per order dated 12.5.1997. Even otherwise it is clearly spelled out from the record that right of the parties in relation to the possession of the suit land had been settled by the Civil Courts as noticed above. Consequently, none of the parties can be allowed to invoke the provisions of Section 145 of the Code and get the party, whose possession had been upheld by the Civil Court, dispossessed in the manner sought to be done on behalf of the petitioner. Therefore, initiation of the proceedings on the basis of calendra at the behest of the petitioner was wholly misconceived because after the rights of the parties had been settled and the possession over the land in dispute determined, the Executive Magistrate could not invoke his jurisdiction so as to initiate the proceedings under Section 145 of the Code. For the aforesaid reasons, there is no merit in the petition and the same is consequently dismissed.