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2003 DIGILAW 1660 (PNJ)

Gurmeet Singh v. Rachhpal Singh

2003-12-10

NIRMAL SINGH

body2003
JUDGMENT Nirmal Singh, J. - This is a petition under Section 482 of the Code of Criminal Procedure for quashing the complaint dated 10.08.1998 under Sections 426/447/379/406/34 of the Indian Penal Code and the summoning order dated 15.5.1999. 2. Rachhpal Singh filed this complaint (as a General Attorney of Surinder Singh) against the petitioners on the allegations that his brother Surinder Singh is the owner of the land measuring 2 Bighas situated in revenue estate of village Chhat. Surinder Singh also filed a civil suit in the Court of Civil Judge (Junior Division), Rajpura to restrain the petitioner from interfering in his peaceful possession and an ad-interim injunction was granted on 8.7.1998 and the same was extended from time to time till 11.8.1998. The further case set up by the respondent is that on 7.8.1998 Prem, servant of the complainant, had gone to the field to cut the Bajra crops which had been sown by Surinder Singh. Surjit Singh accused stopped him from cutting the Bajra Crops and threatened him with dire consequences and he reported the matter to the complainant. The complainant along with Prem again went to the field, where Gurmeet Singh, Surjit Singh, Gurpreet Singh alias Gujjar, and Sarwan Singh Saini were cutting the Bajra crops owned by Surinder Singh, brother of the complainant. The petitioner threatened the complainant and Prem for committing breach of peace and for causing serious injuries. Hence the complaint was filed. 3. After recording preliminary evidence, learned Judicial Magistrate Ist Class summoned the petitioners under Section 426/447/379 read with Section 34 of the Indian Penal Code. 4. The petitioner has filed this petition under Section 482 for quashing the complaint as well as the summoning order on the ground that Atma Singh, Sarwan and Banwari Singh were joint owners of the land measuring 21 bighas 4 biswas in village Chhat. All the three brothers also jointly purchased land in village Ram Nagar, U.P. in equal shares. After the death of Atma Singh, his widow Bant Kaur and two daughters, namely, Kuldip Kaur and Baljit Kaur are cultivating the land in village Ram Nagar, Uttar Pradesh and also residing there. Bant Kaur, Kuldip Kaur and Baljit Kaur sold their 40/474 share of their land to Surinder Singh son of Hari Singh out of the total 21 bighas 4 biswas vide registered sale deed dated 27.02.1998. Bant Kaur, Kuldip Kaur and Baljit Kaur sold their 40/474 share of their land to Surinder Singh son of Hari Singh out of the total 21 bighas 4 biswas vide registered sale deed dated 27.02.1998. The vendors Bant Kaur, Kuldip Kaur and Baljit Kaur were not in cultivating possession of the land in dispute, therefore, they have not give possession of any specific portion. Surinder Singh also filed a suit in the Court of Civil Judge (Junior Division) for permanent injunction and the application for ad interim injunction under Order 39, rules 1 and 2 has been dismissed. 5. On notice, the respondent filed reply and controverted the allegations. It was pleaded that Bant Kaur, Kuldip Kaur and Baljit Kaur have delivered possession to Surinder Singh and he was in cultivating possession of the land. 6. I have heard the learned counsel for the petitioner and perused the record. 7. The Apex Court in State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 Supreme Court 64 has laid down guidelines where High Court can exercise inherent powers under Section 482 Criminal Procedure Code to prevent the abuse of process of law. However, this should be done sparingly and in rarest of rare cases. The guidelines are as under : "1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. 2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5) Where the allegation made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 8. The respondent has not placed any document on the record to show that the land in dispute between the petitioner and Atma Singh, predecessors-in- interest of Bank Kaur, Kuldip Kaur and Baljit Kaur was partitioned or even after the death of Atma Singh, the land between the parties was partitioned. The respondent has not placed on record any document to show that Bant Kaur, Kuldip Kaur and Baljit Kaur were in possession of specific khasra numbers and they have delivered possession to Surinder Singh. Surinder Singh filed a civil suit for permanent injunction restraining the petitioner not to dispossess him from the land in dispute. Along with the said application, an application under Order 39, Rules 1 and 2 was filed and the same was dismissed vide order dated 1.10.1999 which is reproduced as under: "After the close perusal of the judicial file and considering the arguments led by counsel for both the parties it is evident that Smt. Bant Kaur widow of Atma Singh and Kuldip Kaur and Baljit Kaur daughters of Atma Singh sold 2 bighas of land from the entire khewat Nos. 816, 861, 863, 865, 964 min 965 and 966 min the extent of 40/424 share for a sum of Rs. 1,25,000/-. 816, 861, 863, 865, 964 min 965 and 966 min the extent of 40/424 share for a sum of Rs. 1,25,000/-. It is further clear from the revenue record placed on the file that the entire khewat is joint between the parties and has yet not been partitioned and after the purchase of these 2 bighas Surinder Singh applicant has also become the co- sharer in the suit property. Being co-owner, he is not entitled for any discretionary relief of injunction inter se co-owner as each and every co- owner is owner in possession of each and every inch of joint land till partition by all metes and bounds. Thus, on the basis of the well settled law that no injunction can be granted inter se co-owner. The present application filed by the applicant/plaintiff under order 39 rules 1 and 2 is hereby dismissed without effecting the merits of the main suit." 9. A perusal of Annexure P-6 which is a copy of the Khasra Girdawari for the year 1998 shows "self-cultivation of the co-sharers i.e. Manjit Singh, Jagdish Singh, Bank Kaur, Baljit Kaur and Kuldip Kaur". Therefore, Bant Kaur, Kuldip Kaur and Baljit Kaur have not been shown in possession of any specific khasra number. When the land is joint then every co-sharer has an interest in every inch of land as has been laid down by the Full Bench of this Court in Bhartu v. Ram Sarup, 1981 P.L.J. 204 and in Kochkunju Nair v. Koshy Alexander and others, 1999(3) Supreme Court Cases 482 the Apex Court has held as follows : "That all co-owners have equal rights and coordinate interest in the property though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owners. Each co-owner has in theory interest in every infinitesimal portion of the subject-matter and each has the right irrespective of the quantity of his interest to be in possession of every part and parcel of the property jointly with others" 10. Since the petitioners are co-sharer in the property in dispute they have committed no offence of theft and trespass. So to continue with the complaint is an abuse of the process of the Court. 11. For the reasons mentioned above, the complaint and all consequent proceedings arising therefrom are quashed. Complaint dismissed.