Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 765 (PNJ)

Sant Darshan Singh v. State of Punjab and other

2004-07-27

SATISH KUMAR MITTAL

body2004
JUDGMENT Satish Kumar Mittal, J. - The petitioners Prem Pal and his wife Smt. Shakuntla have filed this petition under Section 482 of the Code of Criminal Procedure for issuing directions to respondent No. 3 to hand over the possession of the property in question to them in compliance with the orders dated 30.11.1994 and 3.4.2002 passed by the Sub-Divisional Magistrate, Jalandhar. 2. The brief facts of the case are that there was a dispute about the possession of the property in question i.e. No. 908/B, situated in Arjan Nagar, Nirmal Kutia, Jalandhar between one Khushi Ram, father of Smt. Shakuntla on the one hand and one Kulwant Rai Gill, who claimed himself to be the General Secretary of Balmiki Sabha, Jalandhar. On an application moved by the aforesaid Khushi Ram about the unnecessary interference in his possession by Kulwant Rai Gill, a Calendra was prepared by the police under Section 145 Criminal Procedure Code and presented in the Court of Executive Magistrate, Jalandhar (respondent No. 2 herein) on 8.4.1986. After considering the police report and the respective stands of the parties, the Executive Magistrate vide order dated 23.4.1986 attached the property in question under Section 145 Criminal Procedure Code and appointed SHO, Police Station, Division No. 3, Jalandhar (respondent No. 3 herein) as a receiver of the property under Section 146 Criminal Procedure Code with the directions that all the rooms situated in the property in question be sealed until the matter was decided by the Court of competent jurisdiction. 3. It is the case of the petitioners that the property in question was belonging to one Sant Darshan Singh who had handed over the same to the afore-said Khushi Ram (father-in-law of petitioner No. 1 and father of petitioner No. 2) for the purpose of worshipping the tomb of Baba Rode Shah. At one point of time, the Punjab Wakf Board filed a suit for possession regarding this property against the aforesaid Sant Darshan Singh. In the said suit, it was decided that the said Darshan Singh was the absolute owner of the property and the Punjab Wakf Board was nothing to do with the same. It was further held that the aforesaid Darshan Singh allowed the afore-said Khushi Ram to work as Sewadar and after his death, the petitioners started living there. 4. In the said suit, it was decided that the said Darshan Singh was the absolute owner of the property and the Punjab Wakf Board was nothing to do with the same. It was further held that the aforesaid Darshan Singh allowed the afore-said Khushi Ram to work as Sewadar and after his death, the petitioners started living there. 4. It has also been averred that Kulwant Rai Gill (the second party) also filed a suit for permanent injunction is the Civil Court regarding this property claiming the same as an evacuee property belonging to the Muslims as transferred by the Government to the Punjab Wakf Board. It was alleged that a Balmiki temple was constructed over the land in question and Khushi Ram was kept as a Sewadar by the Balmiki Sabha. After his death, the property in question was being looked after by one Babu Ram, Sewadar. Thus, it was alleged that the petitioners were having no concern with the possession of the property in question. 5. It has also been averred in this petition that the petitioner-Smt. Shakuntla also filed a suit for permanent injunction against the aforesaid Kulwant Rai Gill restraining him from taking forcible possession of the property in question from her. The said suit was also decreed by the Civil Court in her favour and it was held that at no point of time the Balmiki Sabha was in possession of the property in question which was held to be in possession of Smt. Shakuntla (petitioner No. 2). The said judgment became final between the parties. 6. It was further averred that once again the matter regarding ownership and possession of the property in question was agitated in the Civil Court by the Balmiki Sabha in which the possession and ownership of petitioner No. 2 was upheld. Against the said judgment, an appeal was filed by the Balmiki Sabha which was dismissed by the Additional District Jalandhar vide his judgment dated 5.6.1986. 7. Against the said judgment, an appeal was filed by the Balmiki Sabha which was dismissed by the Additional District Jalandhar vide his judgment dated 5.6.1986. 7. After considering all the aforesaid judgments delivered by the Civil Court in different suits and appeals, the Sub-Divisional Magistrate/Executive Magistrate in his final order dated 30.11.1994, a copy of which has been annexed as Annexure P1, has held that the petitioners are in possession of the property in question and it was ordered that the possession of the said property be restored to the petitioners, and also directed the receiver i.e. SHO, Police Station, Division No. 3, Jalandhar (respondent No. 3 herein) to restore the possession of the property to the party No. 1 (the petitioners). The operative part of the aforesaid order is reproduced below :- "Thus, the plea taken by Kulwant Rai Gill, 2nd party that they took this land from the Punjab Wakf Board was not competent to lease out the property, being not its owner, as held in the judgment of ld. Sr. Sub-Judge. The other plea raised by ld. counsel for the respondents that Prem Pal has appeared and examined himself as PW3 to establish his claim, although he has not filed any written claim. In view of the judgments of civil courts referred above which are binding upon this court and other evidence/documents placed on record, the possession over the disputed property of the 1st party is clearly established. In view of my discussion, 1st party has been held by the civil court to be in possession of the disputed property prior to two months date of police calendra presented in this court. Therefore, 1st party is legally to be in possession of the disputed property. Hence, it is ordered that possession of the 1st party be restored to them and the SHO concerned be directed accordingly and a copy of this order be also sent to the SHO, P.S. Division No. 3, Jalandhar for needful." 8. Therefore, 1st party is legally to be in possession of the disputed property. Hence, it is ordered that possession of the 1st party be restored to them and the SHO concerned be directed accordingly and a copy of this order be also sent to the SHO, P.S. Division No. 3, Jalandhar for needful." 8. Against the aforesaid order, Kulwant Rai Gill (the second party) filed revision petition before the Additional Sessions Judge, Jalandhar which was also dismissed by the said Court vide order dated 7.8.2001 (copy Annexure P-2) while observing as under :- "A perusal of this sub-section makes it clear that the SDM was very much competent to decide whether the respondents were in possession of the suit property on the date the proceedings were initiated under Section 145. No doubt, the petitioner produced oral evidence in support of this possession but the SDM based his findings on the judgments of the civil court. He rightly observed in the body of his order that those judgments are binding on the criminal courts. The first judgment in point of time was passed by Sh. J.P. Mehmi, Sub-Judge 1st Class, Jalandhar. Certified copy of that judgment has been proved on the record as Ex.PX. A perusal of the same shows that Om Parkash and Shakuntla filed a suit for permanent injunction restraining Satish Kumar and others from taking forcible possession of the suit property. In that suit, Satish Kumar and others took up the specific plea that it was the Balmiki Sabha which was in possession of the property for the last 30 years thereby refuting the pleadings of Om Parkash and Shakuntla that they were in possession of the suit property. The Sub-Judge held that Om Parkash and Shakuntla were in possession of the suit property and as such were entitled to the injunction prayed for. Thus Balmiki Sabha, on whose behalf the claim was being contested by Kulwant Rai Gill petitioner, was not found to be in possession of the suit property by the civil court. Another civil litigation was started in respect of this property by the Balmiki Sabha itself against Shakuntla and Prem Pal respondent No. 2. It came up with the plea that it was in possession of the suit property and that Shakuntla, Prem Pal and others be restrained from interfering in its possession. Another civil litigation was started in respect of this property by the Balmiki Sabha itself against Shakuntla and Prem Pal respondent No. 2. It came up with the plea that it was in possession of the suit property and that Shakuntla, Prem Pal and others be restrained from interfering in its possession. An application under Order 39 Rules 1 and 2 Civil Procedure Code for the grant of ad-interim injunction was filed in that suit, which was dismissed by the Senior Sub-Judge, Jalandhar vide order dated 28.2.1986. An appeal was preferred against that order by the Balmiki Sabha, which was decided by the learned Addl. District Judge, Jalandhar on 5.6.1986. The certified copy of the judgments proved on the record as Ex.P1/F. The Balmiki Sabha was not found to be in possession of the suit property. That judgment was passed on 5.6.1986. Thus, as per the decision of the civil court, the petitioner was not in possession of the property in dispute on the date the proceedings were initiated under Section 145. On the basis of the evidence produced before the SDM, he gave a correct finding that it were the respondents, who were in possession of the property in dispute two months prior to the initiation of the proceedings and that they were legally entitled to that possession. The possession was correctly ordered to be restored to them." 9. The aforesaid orders were further impugned by Kulwant Rai Gill by filing Crl. Misc. No. 33559-M of 2001 in this Court which was also dismissed on 24.8.2001 vide Annexure P-3. 10. When the order dated 30.11.1994 passed by the Sub-Divisional Magistrate attained finality, respondent No. 3, who was appointed as a receiver and had taken possession of the property as an interim measure, was required to restore the possession of the said property to the petitioners. When respondent No. 3 did not comply with the said order, the petitioners made an application to the Sub-Divisional Magistrate, Jalandhar on 8.10.2001 requesting him to restore the possession of the property in question of them. On the said application, the Sub-Divisional Magistrate vide order dated 3.4.2002 directed respondent No. 3 to put the petitioners in possession of the property in question within 15 days and should report back about the execution of the said order of the Court. A copy of the said order has been annexed as Annexure P-5. 11. On the said application, the Sub-Divisional Magistrate vide order dated 3.4.2002 directed respondent No. 3 to put the petitioners in possession of the property in question within 15 days and should report back about the execution of the said order of the Court. A copy of the said order has been annexed as Annexure P-5. 11. In spite of the above direction, respondent No. 3 did not comply with the aforesaid orders and did not restore possession of the property in question to the petitioners. All the Courts including this Court had clearly held that the petitioners were in possession of the property in question prior to the commencement of the proceedings under Section 145 Criminal Procedure Code and a direction was issued to the receiver to restore the possession of the property to the petitioners. In these circumstances, the petitioners have filed the instant petition for issuing directions to respondent No. 3 to restore the possession of the property in question to them. 12. Pursuant to the notices issued, Superintendent of Police, City-II, Jalandhar has filed reply on behalf of respondents No. 1 and 3. In the reply, it has been stated that since some civil suits between the petitioners and Kulwant Rai Gill are pending, therefore, the decision regarding possession of the property in question could not be decided and the possession could not be given to the petitioners. It has been further averred that one Prem Pal son of Babu Ram, whose father was earlier doing Sewa on the Mazar existing on the disputed land, has filed a civil suit against the petitioners, Darshan Singh and Kulwant Rai Gill in which the order of status-quo has been granted by the Civil Judge (Jr. Division), Jalandhar. The said suit is still pending. Therefore, the prayer made in this petition cannot be granted. Thirdly, it has been averred that though respondent No. 3 was appointed as a receiver vide order dated 23.4.1986 in the proceedings under Section 145/146 Criminal Procedure Code by the Executive Magistrate, but possession of the property in question was not taken/delivered to him as a receiver. Therefore, respondent No. 3 never remained in possession of the property in question, and he was only appointed as a receiver in papers. As such, he is not in a position to deliver the possession of the property in question to the petitioners. Therefore, respondent No. 3 never remained in possession of the property in question, and he was only appointed as a receiver in papers. As such, he is not in a position to deliver the possession of the property in question to the petitioners. However, it has been averred that if the Sub-Divisional Magistrate requests for police help for getting the possession delivered to any person under the lawful order, then respondent No. 3 would be legally bound to get delivered the possession, but no such order of police help has been given to respondent No. 3. 13. I have heard the counsel for the parties and perused the record of the case. 14. The counsel for the petitioners contends that respondent No. 3 is not disputing the various orders passed by the Executive Magistrate as well as the Civil Court and the direction issued by the Sub-Divisional Magistrate to respondent No. 3 to hand over the possession of the property to the petitioners. In spite of that, respondents No. 1 and 3 are taking false plea as they are not interested to restore possession of the property in question to the petitioners despite the order dated 30.11.1994 (Annexure P-1) having become final up to this Court. The counsel for the petitioners also states that the order of status-quo passed in the civil suit filed by Prem Pal against the petitioners has now been vacated by the Civil Judge (Jr. Division), Jalandhar vide his order dated 23.9.2003, a copy of the said order has been placed on the record. He further submitted that the property in question is in possession of respondent No. 3 as he had taken possession of the same in the year 1986 being appointed as a receiver, and under the law he is bound to restore the possession of the property in question to the petitioners as per the order and directions issued by the Executive Magistrate vide order dated 30.11.1994 (Annexure P-1). He submitted that the respondents are taking the false plea that the possession of the property in question was never delivered to respondent No. 3 and the delivery of the possession was only a paper transaction. 15. On the other hand, counsel for the respondents made the submissions by reiterating the stand taken by respondents No. 1 and 3 in their reply. 15. On the other hand, counsel for the respondents made the submissions by reiterating the stand taken by respondents No. 1 and 3 in their reply. However, the passing of the various orders - Annexures P-1, P-2, P-3 and P-5 - has not been disputed. 16. After hearing the arguments of the learned counsel for both the parties, I am of the opinion that this is a case where respondent No. 3 has glarely flouted the orders issued by the Court and has failed to restore the possession of the property in question to the rightful claimants in whose favour the competent Courts have passed the orders. Undisputedly, respondent No. 3 was appointed as a receiver in the proceedings under Section 145/146 Criminal Procedure Code by the Executive Magistrate, Jalandhar vide order dated 23.4.1986. He was directed to take possession of the property in question and seal it unless the matter was decided by the Court of competent jurisdiction. In view of the said order, the possession of the property was taken by the receiver. Ultimately, those proceedings were finally decided in favour of the petitioners by the Executive Magistrate, Jalandhar vide order dated 30.11.1994 (Annexure P-1) and the petitioners were found to be in possession of the same prior to the institution of the proceedings. Therefore, a direction was issued to the receiver to restore possession of the property in question to the petitioners. That order was affirmed up to this Court. Subsequently, on an application filed by the petitioners, the Executive Magistrate, Jalandhar again directed respondent No. 3 to comply with the earlier order and restore the possession vide order dated 3.4.2002 (Annexure P-5). In spite of that order, the property in question, which was taken in possession by the receiver as a trustee, has not been delivered to the petitioners. Now, respondent No. 3 has filed the reply through Supdt. of Police, City-II, Jalandhar, stating therein that the receiver was not delivered the possession in the year 1986, therefore, he is not in a position to restore the possession of the property in question to the petitioners. It is unfortunate that such a stand has been taken by the Supdt. of Police now to frustrate the lawful orders passed by the various Courts. It is unfortunate that such a stand has been taken by the Supdt. of Police now to frustrate the lawful orders passed by the various Courts. It has been specifically mentioned in the order dated 30.11.1994 (Annexure P-1) that the possession of the property in question was delivered to the SHO, P.S. Division No. 3, Jalandhar, who was appointed as a receiver. In view of the said order, respondent No. 3 is deemed to be in possession of the property and he is bound to restore the possession of the property in question to the petitioners in accordance with the orders passed by the Executive Magistrate, Jalandhar. The stand taken by the respondents in their reply that order of status-quo has been passed by the Civil Court in a civil suit filed by Prem Pal, is also without any substance as the said order of status-quo has also been vacated by the Civil Court vide its order dated 23.9.2003 since the aforesaid Prem Pal was not found to be in possession of the property in question. In my view, respondent No. 3 has failed to discharge his duty while not restoring the possession of the property in question to the petitioners in accordance with the orders dated 30.11.1994 (Annexure P-1) and 3.4.2002 (Annexure P-5) passed by the Executive Magistrate, Jalandhar. He is duty bound to restore the possession of the property which was taken by him as a receiver under the order of the Court, as a trustee. In view of the aforesaid, this petition is allowed and a direction is issued to respondent No. 3 to restore possession of the property in question to the petitioners/lawful claimants, in accordance with the orders dated 30.11.1994 (Annexure P-1) and 3.4.2002 (Annexure P-5), within a period of two months. The Supdt. of Police, City-II, Jalandhar, who has filed the written statement, is also directed to ensure that respondent No. 3 should comply with the order of this Court. Petition allowed.