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2006 DIGILAW 726 (AP)

C. Ramakrishnaiah v. P. Murali Krishna

2006-06-27

B.SESHASAYANA REDDY

body2006
ORDER This Criminal Petition is directed against the order dated 25-4-2006 in M.C. No. 275 of 2004 on the file of the Mandal Executive Magistrate-cum-Mandal Revenue Officer, Tirupati whereby and where under the order dated 15-11-2004 passed under Section 145(1) Cr. P.C. came to be vacated. 2. The brief facts of the case giving rise to filing of this Criminal Revision Case by 'A' party in M.C. No. 275 of 2004 are: The Sub-Inspector of Police, Alipiri P.S. submitted a report before the Mandal Executive Magistrate apprehending breach of peace in respect of a dispute over an extent of Ac. 0-10 cents of land in Survey No. 20 of Tirupati Revenue Village between 'A' party and 'B' party. Thereupon the Executive Magistrate took report on file as M.C. No. 275 of 2004 and passed prohibitory order under Section 145(1) Cr. P.C. and directed both the parties to enter their appearance and put in their respective pleadings. Thereupon 'A' party and 'B' party entered their appearance and placed on record the respective pleadings. The learned Executive Magistrate on considering the pleadings of the parties and on hearing the counsel appearing for the parties vacated the prohibitory order granted on 15-11-2004. The order passed by the Mandal Executive Magistrate on 2-4-2006 vacating the prohibitory order dated 15-11-2004 is under challenged in this Criminal Revision Case. The relevant portion of the order impugned in the Criminal Revision Case needs to be extracted and it is thus: "The statements submitted by third parties i.e., A. Subramanyam Achary, R.P. Suresh, A. Sekhar and P. Balakrishna Reddy are that they have no connection with the suit land. Further A. Sekhar and P. Balakrishna Reddy admitted that they have withdrawn the case in D.S. No. 1519 of 2004 which was filed at the instigation of B Party only and having withdrawn, it was dismissed on 31-12-2004. It is pertinent to note that through execution proceedings in pursuance of the decree in D.S. No. 224 of 1983 and 225 of 1983, the vendors at A-Party duly obtained possession of the disputed property. Subsequently they were purchased by the A-Party through registered Sale Deeds dt. 17-02-2004 and 20-02-2004 for consideration. It is pertinent to note that through execution proceedings in pursuance of the decree in D.S. No. 224 of 1983 and 225 of 1983, the vendors at A-Party duly obtained possession of the disputed property. Subsequently they were purchased by the A-Party through registered Sale Deeds dt. 17-02-2004 and 20-02-2004 for consideration. Apart from this in I.A. No. 2202 of 1997 in D.S. No. 1184 of 1997 on the file of Principal Junior Civil Judge, Tirupati, now D.S. No. 163 of 2001 on the file of Principal Senior Civil Judge, Tirupati interim injunction is granted in favour of the vendors of the A-Party and it is still in force and the same is not denied by the B Party. In view of the injunction orders granted by the Honourable Court in D.S. No. 1184 of 1997 and in D.S. No. 124 of 1994 on the file of I Additional District Munsiff, Tirupati filed by B Party's son for injunction and the same was dismissed on 17-06-1997 against one of the vendors of A-Party and another. There is a duty cast upon this Court to follow the decision of the Civil Court on the question of the possession of the property. Moreover, any proceedings u/sec. 145 of Cr. P.C. respect shall be given to the decisions and directions of competent Civil Court regarding possession. Hence, in view of the pending order of injunction and taking the circumstances stated taken into account and I declare that A-Party is in the possession of the disputed property. Accordingly disposed the above proceedings vacating the prohibitory order granted on 15-11-2004 under Section 145(1) Cr. P.C." 3. Heard learned counsel appearing for both the parties. 4. Learned counsel appearing for the petitioners submits that the Mandal Executive Magistrate has not referred to the documents filed along with the written statement and thereby erred in drawing a conclusion that 'A' party is in possession of the property in dispute. He would further submit that no opportunity was given to the petitioners after filing their written statement and no enquiry was conducted as provided under subsection 4 of Section 145 Cr. P.C. and thus order impugned in the revision case is liable to be set aside. He would further submit that no opportunity was given to the petitioners after filing their written statement and no enquiry was conducted as provided under subsection 4 of Section 145 Cr. P.C. and thus order impugned in the revision case is liable to be set aside. Yet another contention has been raised by him that the suit filed by the petitioners was restored to file and eventually interim order of injunction in favour of the petitioners stood restored and in which case the finding recorded by the Mandal Executive Magistrate that 'A' party (Respondents herein) is in possession of the property is contrary to the finding recorded by the Civil Court. In support of his submissions, reliance has been placed on the decision of this Court in Balmukund Gupta v. State of A.P. 2002 (1) ALT (Crl.) 464 (A.P.) and a decision of Karnataka High Court in S. Ramachandra v. State of Karnataka 1979 MLJ 93 . 5. In the first cited decision it has been held that proceeding initiated under Section 145(1) Cr. P.C. after passing of the order of injunction in respect of the property in dispute cannot be initiated. 6. In the second cited decision it has been held that it is the legal duty of the Magistrate to examine all witnesses and make a memorandum of the substance of the evidence of the witnesses in the language of the Court; or course, subject to the proviso. It is not necessary to state that 'witnesses' include parties also it is further held that the enquiry must be conducted in accordance with this provision of sub-section 4 of Section 145 Cr. P.C. 7. Learned counsel appearing for the 151 respondent submits that in view of the pendency of the suits between the parties an order passed on interlocutory applications, the Executive Magistrate is justified in vacating the prohibitory order granted on 15-11-2004 passed under Section 145(1) Cr. P.C. In support of his submissions he placed reliance on the decision of Supreme Court in Mahant Ram Saran Dass v. Harish Mohan 2003 SCC (Crl.) 1053, Ranbir Singh v. Dalbir Singh 2002(1) ALT (Crl.) 339 (SC) = AIR 2002 SC 2907 and Bindeshwari Prasad Singh @ BP. Singh v. State of Bihar 2002(2) ALT (Crl.) 298 (SC) = 2002(5) Supreme 332 . Singh v. State of Bihar 2002(2) ALT (Crl.) 298 (SC) = 2002(5) Supreme 332 . In Mahant Ram Saran Dass's case the Supreme Court held that when the Civil Court being seized of the matter, any appropriate relief could be obtained from the Civil Court itself and the Magistrate has no jurisdiction to entertain the application under Section 145 Cr. P.C. In Bindeshwari Prasad Singh's case the Supreme Court held that in the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction at the instance of the informant. In Ranbir Singh's case a preliminary order passed under Section 145(1) Cr. P.C. by the Sub-Divisional Magistrate came up for consideration. Para 9 of the judgment needs to be noted and it is thus: "However, the High Court was in error in dealing with the Revision Petition as if it was exercising appellate jurisdiction. The High Court has dealt with the developments in the case relating to the acquisition of title the allegations of fraudulent transfers made by Karnail Singh and M/s. Homestead and the circumstances in which the suit was dismissed as withdrawn. Keeping in view the limited scope of the proceeding under Section 145 Cr. P.C. these questions were not material for determination of the main issues in the case. The Court, while dealing with a proceeding under Section 145, Cr. P.C. is mainly concerned with possession of the property in dispute on the date of the preliminary order and dispossession, if any within two months prior to that date; the Court is not required to decide either title to the property or right of possession of the same. The question for determination before the High Court in the present case was one relating to the validity or otherwise of the preliminary order passed by the learned Sub-Divisional Magistrate under Sec. 145(1), Cr. P.C. and sustainability of the order of attachment passed under Sec. 146(1) Cr. P.C. For deciding the questions it was neither necessary nor relevant for the High Court to have considered the matters relating to title to and right of possession of the property. P.C. and sustainability of the order of attachment passed under Sec. 146(1) Cr. P.C. For deciding the questions it was neither necessary nor relevant for the High Court to have considered the matters relating to title to and right of possession of the property. Further, both the parties in the case have filed suits seeking decree of permanent injunction against each other and in the suit filed by the appellant an order of interim injunction has been passed and an objection petition has been filed by respondent No. 1. The suits and the interim order are pending further consideration before the Civil Court". 8. Undisputedly many proceedings have been initiated in civil Courts either by 'A' party or 'B' party or their respective vendors. In some of the suits interlocutory applications were filed and certain orders were passed in respect of property in dispute. It can be said without any controversy that the Civil Courts have seized of the dispute between the parties. In such a situation, the Mandal Executive Magistrate ought not to have entertained the report submitted by the Sub-Inspector of Police. However, the learned Mandal Executive Magistrate, on noticing the civil disputes between the parties and orders passed on interlocutory applications, vacated the prohibitory order granted on 15-11-2004 under Section 145(1) Cr. P.C. The Executive Magistrate is justified, in the circumstances of the case, in vacating the prohibitory order. While vacating the prohibitory order the Executive Magistrate proceeded to record a finding that 'A' party is in possession of the disputed property. Such a finding is not called for since Civil Courts have already seized the matter and two injunction orders, apparently, operating in respect of the property in dispute. 9. Therefore, the finding of the Mandal Executive Magistrate that 'A' party is in possession of the property in dispute cannot be sustained and the same is hereby set aside. 10. Accordingly, this Criminal Revision Case is allowed in part.