Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 434 (PNJ)

Kali Ram v. State of Haryana

2003-03-15

R.C.KATHURIA

body2003
JUDGMENT R.C. Kathuria, J. - Kali Ram, petitioner seeks quashing of the order dated 6.6.2002 (Annexure P.3) passed by the Sub-Divisional Magistrate, Panipat, respondent No. 2, whereby land measuring 76 Kanals, 6 Marlas situated in Village Kurda, Tehsil Safidon, District Jind was attached on the basis of calendera filed by the S.H.O., Police Station, Madlauda for proceedings under Section 145 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) wherein the Naib Tehsildar, Madlauda was appointed as Receiver to get the land in question cultivated and deposit the income of the land in the proper account. 2. In order to focus the controversy involved in the present petition, essential facts have to be noticed. Land measuring 76 Kanals 6 Marlas fully described in the Calendera (copy of which is Annexure P.2) had been recorded to be owned by Kali Ram, Badlu Ram, Phul Singh, Bani Singh and Fateh Singh sons of Rati Ram in equal shares as per entries of Jamabandi in question. Sunil Dutt, who had been arrayed as second party in the Calendera and respondent No. 4 in the present petition had purchased 11 Kanals of land out of the share in the land owned by Bani Singh. After its purchase, Sunil Dutt wanted to cultivate the land purchased to the extent of his share but Sant Ram arrayed as party No. 1 in the Calendera and respondent No. 5 in the present petition did not allow Sunil Dutt to enter the land purchased by him. Sant Ram son of Kali Ram is one of the co-sharers in the land. On 15.4.2002, Sant Ram and Pale Ram, sons of Kali Ram of the first party and Sunil Dutt and Brahm Dutt of the second party had been challaned under Sections 107 and 151 of the Code as both the parties were adamant to kill each other on the question of sowing and cultivating the land. Apprehending breach of peace in respect of the land in dispute, the S.H.O., Police Station, Madlauda filed a Calendera under Section 145 of the Code in the Court of Sub-Divisional Magistrate, Panipat basing his assertion that the dispute related to the land measuring 76 Kanals 6 Marlas. After filing of the Calendera, the Sub Divisional Magistrate, Panipat gave notice to both the parties and afforded opportunity to lead evidence. After filing of the Calendera, the Sub Divisional Magistrate, Panipat gave notice to both the parties and afforded opportunity to lead evidence. Taking into account the evidence led by the parties before him, he came to the conclusion that there was apprehension of dispute between the parties on account of the land in question and finding substance in the allegations made in the Calendera filed by SHO, Police Station, Madlauda and the matter being of urgent nature, the land in question was attached under Section 145 read with Section 146 of the Code and Naib Tehsildar, Madlauda was appointed as Supardar to get the land cultivated at his own level and deposit the income derived therefrom in the proper account. Kali Ram, who is son of Rati Ram had filed the present petition to challenge this order. 3. I heard counsel for the petitioner, State counsel and counsel representing respondent No. 4 at length. 4. There is no factual dispute between the parties before me that land measuring 76 Kanals 6 Marlas fully described in the Calendera filed by the SHO, Police Station, Madlauda (Annexure-2) was jointly owned by Kali Ram, Badlu Ram, Phul Singh, Bani Singh and Fateh Singh sons of Rati Ram as per entries of the Jamabandi for the relevant period. It is also not disputed before me that Sunil Dutt had purchased 11 Kanals of land as per sale deed bearing Vasika No. 921/1 dated 11.10.2001 from Bani Singh, who is recorded as one of the co-sharers in the total land. Mutation No. 1517 has also been sanctioned in the name of Sunil Dutt thereafter. The dispute as per parties arrayed in the Calendera, namely, Sant Ram and Sunil Dutt, party No. 1 and No. 2 respectively arose because Sunil Dutt claimed that after purchase of the land he had cultivated and sown the crop on the land comprised in Killa No. 96/24 min east (3-0), 25(8-0) measuring 11 Kanals in all and the rest of the land had been lying vacant at the spot and thus the first party had never cultivated the same. This stand was disputed by the first party as it was asserted by him that he had been in possession of the disputed land and the sale deed is a forged document. This stand was disputed by the first party as it was asserted by him that he had been in possession of the disputed land and the sale deed is a forged document. It was also not disputed before me that Civil Suit No. 143 of 2002 dated 17.5.2002 was pending in the Court of Additional Civil Judge (Senior Division), Panipat which had been filed by Kali Ram, plaintiff against Sunil Dutt, Badlu Ram, Phul Singh, Fateh Singh and Bani Singh, arrayed as defendant No. 1 to 5 respectively. In the said case, defendant Nos. 2 to 5 were proceeded ex parte on 24.5.2002 while defendant No. 1 refused to accept the service. The case was posted for 8.6.2002 and the parties were directed to maintain status quo regarding the possession over the suit property. It was not disputed that order of status quo is still in operation. In this suit the plaintiff had claimed the relief of permanent injunction against the defendants. The copy of the plaint of that suit had not been placed on record by either of the parties before me. 5. Kali Ram admittedly is not a party to the Calendera filed by S.H.O. The first question to be decided is whether he is entitled to invoke the jurisdiction of this Court under Section 482 of the Code to challenge the order in question. The second question connected with the first question is that despite the definite case of Sunil Dutt. Second party that he had purchased 11 Kanals of land out of total land measuring 76 Kanals 11 Marlas which stands recorded in the joint possession of co-owners and names of those co-owners having been mentioned in the Calendera itself, the Sub-Divisional Magistrate was duty bound to give notice to all of them being the necessary parties because the S.H.O. of Police Station had chosen to include the entire holding of the above parties for initiating the proceedings under Section 145 of the Code and not limited the controversy to 11 Kanals of land. Thirdly, even taking the allegation made in the Calendera filed by the S.H.O., Police Station, Madlauda, it was clearly spelled out on record that property in dispute was in possession of the co-sharers and for that reason proceedings under Sections 145 and 146 of the Code could not have been initiated under the law. Thirdly, even taking the allegation made in the Calendera filed by the S.H.O., Police Station, Madlauda, it was clearly spelled out on record that property in dispute was in possession of the co-sharers and for that reason proceedings under Sections 145 and 146 of the Code could not have been initiated under the law. Fourthly after the order of status quo qua the land in dispute had been passed in the Civil suit filed, the Sub-Divisional Magistrate could not order attachment and appointment of Supardar in relation to whole property vide order dated 6.6.2002. Lastly, whether the petitioner can invoke the jurisdiction of this Court without approaching the revision Court. 6. Dealing with the issue raised in seriatim, a cursory examination of the provisions of Section 145 of the Code, reveals that after the report is received by the Executive Magistrate from a Police Officer or upon other information that a dispute concerning any land within his local jurisdiction is likely to cause a breach of peace he is required to make an order in writing, stating the grounds of his being so satisfied, requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date. For the purpose of present controversy on the Calendera being filed before him by the S.H.O. of Police Station, Madlauda, it was the duty of the Sub-Divisional Magistrate, Panipat, not only to satisfy himself that a dispute exists but was also to ascertain the parties concerned in such dispute. The words "parties concerned in such dispute" in sub-section (1) of Section 145 of the Code are intended to indicate persons claiming to be in possession at the time of initial order to be passed under sub-section (1) and not the parties interested in or claiming a right in property in dispute. The question of possession required to be enquired into under Section 145 of the Code is the possession at the time of initiation of proceedings and the words "parties concerned in such dispute" have to be understood to mean parties concerned at the time of initiation of the proceedings. The question of possession required to be enquired into under Section 145 of the Code is the possession at the time of initiation of proceedings and the words "parties concerned in such dispute" have to be understood to mean parties concerned at the time of initiation of the proceedings. Therefore, even if a person is not one of the parties to the dispute but is in possession of part of the land to be attached he is a necessary party to the proceedings and should be called upon to file his written statement and objections to the claim put up by one of co-owners of the land. In this case the duty cast upon the Sub-Divisional Magistrate by the aforesaid provisions of Section 145(1) of the Code had been ignored by him. As the S.H.O., Police Station, Madlauda had invoked his jurisdiction to cover up the dispute in relation to entire land measuring 76 kanals 6 Marlas situated in Village Kurda owned by five co-sharers named above including Kali Ram petitioner, he was required to issue notice to Kali Ram as well before deciding the claim put up by party Nos. 1 and 2 arrayed as such in those proceedings. Kali Ram, present petitioner has been affected by the impugned order passed by the Sub-Divisional Magistrate, Panipat because he had been deprived of his joint possession of the land with other co-owners as the entire land had been ordered to be handed over to the Naib Tehsildar appointed as Supardar till the decision of the dispute. Therefore, circumstances of the case fully justify the conclusion that the petitioner has a right to invoke the jurisdiction of this Court because the S.D.M. had failed to act in accordance with the requirement of law by not issuing a notice to him despite the fact that he was in possession of the property as is clearly spelled out in the Calendera filed before him. The fact that Sant Ram son of Kali Ram had been impleaded as first party in the Calendera filed would not in any manner affect the legal rights of Kali Ram in relation to the land to the extent of his share in the total land which has been attached and in respect whereof supardar has been appointed. On this ground alone the impugned order is liable to be set aside. 7. On this ground alone the impugned order is liable to be set aside. 7. Coming to the stand taken on behalf of the petitioner that the property in dispute was recorded to be jointly owned by the co-sharers noticed earlier, the position of law stands well settled in this regard. In Labh Singh and another v. Jaswinder Kaur and others, 1992(1) C.L.R. 24, the dispute regarding the possession of the land arose between the co-sharers, the initiation of proceedings under Section 145 of the Code was held to be unjustified and unsustainable. Same principle is deducible from the observations made in Ram Karan v. State of Haryana, 1997(2) RCR(Crl.) 591; Nahar Singh v. State of Punjab, 2000(3) RCR(Crl.) 425 and Karam Singh v. Sub-Divisional Magistrate, Zira, 2001(2) RCR(Crl.) 617. 8. I have already noticed that the Sub-Divisional Magistrate, Panipat was duty bound to issue notice to Kali Ram being co-sharer in possession of the property and as notice had been given to the co-sharer in possession of the property, the proceedings initiated only impleading first party suffers from illegality patent on record and cannot be sustained. Therefore, the ratio of the above mentioned case as such would apply as an additional ground because the Sub-Divisional Magistrate did not take into account at all while passing the impugned order that the land in question had been recorded in possession of five co-sharers including Bani Singh from whom 11 Kanals of land was purchased by Sunil Dutt, second party. On this ground as well the impugned order cannot be sustained. 9. Coming to the last question raised, it is well settled that in the proceeding under Section 145 of the Code, Sub Divisional Magistrate is mainly concerned with the possession of the property on the date of preliminary order and dispossession, if any, within two months prior to that date. He is not required to decide either title to the property or right of possession of the same. The important aspect of the controversy, which cannot be ignored is that Civil Suit No. 143 of 2002 had been filed on 17.5.2002 by Kali Ram against Sunil Dutt and other defendants as noticed earlier for permanent injunction and is pending in the Court of Additional Civil Judge (Senior Division), Panipat. In that case on 24.5.2002, the parties had been directed to maintain status quo regarding the possession over the suit property. In that case on 24.5.2002, the parties had been directed to maintain status quo regarding the possession over the suit property. The net consequence would be that not only Kali Ram and Sunil Dutt, party No. 1 and 2 respectively in the Calendera filed but Badlu Ram, Phul Singh, Fateh Singh and Bani Singh, other co-sharers of the land measuring 76 Kanals 6 Marlas situated in Village Kurda are also bound by this order which continues to be in operation. The order of attachment by appointment of Supardar came to be passed by the Sub-Divisional Magistrate on 6.6.2002 so to say after the order dated 24.5.2002 had been passed. No doubt, the parties to the Civil Suit were directed to appear on 8.6.2002 and for that reason perhaps part No. 2 was not aware of the order passed by the Civil Court yet the fact remains that order of status quo was in operation on that day which had been brought to the notice of the Court during the pendency of the present petition. The effect of the order passed by the Civil Court cannot be ignored. 10. The learned counsel representing respondent No. 4 mainly contended before me that merely because civil suit in respect of the civil dispute is pending would not bar the initiation of proceedings under Section 145 of the Code. Support was sought by him from the observations made in S.P. Nagarthinam v. Sub-Divisional Magistrates and Sub-Collector, Thanjavur and others, 1993 Cri.L.J. 1285 and Ram Singh v. Prema and others, 1981 C.L.R. 76. 11. On the other hand the learned counsel representing the petitioner referred to Mst. Manzooran v. State of Punjab and others, 1987(1) RCR(Crl.) 405; Jasbir Singh v. State of Haryana, 1997(1) RCR(Crl.) 573; Tek Ram v. Sub Divisional Magistrate Panipat, 1997(2) RCR(Crl.) 549; Hartej Singh v. Amarjit Singh, 1998(2) RCR(Crl.) 755 and Dalbir Singh v. State (NCT of Delhi), 2001(4) RCR(Crl.) 831, wherein it has been laid down that if civil suit is pending between the parties and the Court had ordered status quo regarding possession, the appointment of Receiver by Sub Divisional Magistrate would not be valid as It would result in dispossession of the party who was in possession of the land and would thus violate the order of the Civil Court. it is for that reason, it was laid down that in such circumstances proceedings under Section 145 of the Code cannot be initiated. In Ranbir Singh v. Dalbir Singh, 2002(2) RCR(Crl.) 275, Honble Supreme Court had quashed the preliminary order passed by the Sub Divisional Magistrate under Section 145 of the Code and attachment of the property under Section 146 of the Code allowing the parties concerned to approach the Civil Court for appropriate interim order. In that case notice was taken of the fact that both the parties had filed separate civil suits seeking decree for permanent injunction against each other and in the suit filed by the appellant of that case order of injunction had been passed and objection had also been preferred by the respondent. Same is the situation in this case. Therefore, the parties of this case can also approach to that Court for appropriate further direction in relation to the land in dispute. 12. Lastly, objection was also taken on behalf of the respondent with regard to the maintainability of the revision petition in this Court because revisional jurisdiction of Court of Sessions had not been invoked by the petitioner. Strength was sought from the observations made in Jaswant Singh v. State of Haryana and others, 2000(2) RCR(Crl.) 647 and Varinder Singh alias Shiv Kumar v. State of Haryana and others, 1998(2) RCR(Crl.) 372 in this regard. In Mukhtiar Singh v. State of Punjab, 1997(3) RCR(Crl.) 14, it was observed that the order passed by the Magistrate under Section 145 of the Code is an interim order and the Magistrate is competent to recall or rescind the order on being convinced by either of the parties and for that reason the petitioner should first approach the Magistrate before approaching the High Court under Section 482 of the Code. On the other had reference has been made on behalf of the petitioner to Labh Singh and another v. Jaswinder Kaur and others (supra); Ram Kumar v. State of Haryana, 1996(2) RCR(Crl.) 351; Surinder Singh v. State of Punjab, 1996(2) RCR(Crl.) 154, wherein it has been laid down that order of attachment being interlocutory order, revision against the same is barred under Section 397(2) of the Code. In this case the S.H.O. had purposely not impleaded the petitioner and other co-sharers as parties to the proceedings. In this case the S.H.O. had purposely not impleaded the petitioner and other co-sharers as parties to the proceedings. It is for that reason, the petitioner has been forced to invoke the jurisdiction of this Court under Section 482 of the Code and taking notice of these circumstances, the petitioner was not directed to invoke the jurisdiction of the revisional Court at the initial stage. Therefore, under the circumstances of the case the facts of the reported cases would not render any assistance to the controversy raised in the present petition. For the reasons recorded above, I accept the petition and quash the Calendera filed under Section 145 of the Code and the order dated 6.6.2002 of the Sub- Divisional Magistrate, Panipat. Petition allowed.