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2009 DIGILAW 1320 (PNJ)

Ram Niwas v. Bhagirath

2009-08-04

HARBANS LAL

body2009
JUDGMENT Harbans Lal, J. - This revision is directed against the order dated 30.10.2008 Annexure P.1 passed by the Court of learned Additional Sessions Judge Narnaul whereby he set aside the order dated 17.5.2007 rendered by the learned Sub Divisional Magistrate, Mahendergarh by accepting the revision preferred there-against. 2. The brief facts giving rise to this petition are that the petitioners had filed an application under Section 145 of Criminal Procedure Code for attaching the land in dispute. Initially, Ram Kishan was the owner in possession of such land. He sold it to Mohan and others vide sale deed dated 20.5.1954. Prabhu and others were four brothers. Parbhati was looking after the affairs of the family. They filed a Civil Suit No. 173 dated 23.3.1955 titled as Dilsukh v. Mohan and others in the name of the head of the family for possession by way of pre- emption wherein the predecessor-in-interest of the parties were impleaded as parties. The suit was dismissed. The appeal was filed, which was accepted vide judgment and decree dated 24.3.1956. A decree for possession by way of pre- emption was passed in favour of Dilsukh and others on the basis of judgment/decree dated 24.3.1956. The mutation No. 505 was entered and sanctioned. Parbhati filed a suit for possession by way of pre-emption of 1/9th share. Prabhu and his brothers Parbhati, Mam Chand and Sheo Chand bore expenses of 1/4th share each. During consolidation proceedings, Dilsukh and others and Prabhu got separated their land measuring 9 kanals 16 marlas being half share. Out of this, half share was transferred to Surender, Maha Singh, Ramesh Kumar sons of Mam Chand, 5/12th share to defendants No. 8 to 12, 1/12th share to defendants No. 13 and 14 vide gift deed No. 1584 dated 22.8.2001 secretly. Whereas the petitioners should have been given 1/4th share and others also should have taken 1/4th share after the death of their father Prabhu. Parbhati was wrongly shown as owner in possession of the land in dispute. Respondents No. 1 to 4 by taking an undue advantage of the serious illness of Parbhati got executed Will No. 63 dated 22.8.2001. Thus the Will and the mutation sanctioned on its basis were illegal and liable to be ignored. The petitioners have also filed a civil suit in which status quo has been ordered. Respondents No. 1 to 4 by taking an undue advantage of the serious illness of Parbhati got executed Will No. 63 dated 22.8.2001. Thus the Will and the mutation sanctioned on its basis were illegal and liable to be ignored. The petitioners have also filed a civil suit in which status quo has been ordered. Earlier also, the petitioners had filed an application in Police Station Mahendergarh, where the matter was compromised on 16.6.2002 with the intervention of the respectables. The respondents did not act upon the compromise and started interfering in the ownership as well as possession of the petitioners on the property in dispute. Consequently, the proceedings under Section 145 of Criminal Procedure Code were initiated. The parties were granted ample opportunities of being heard before the learned Sub Divisional Magistrate. The report from SHO Police Station Mahendergarh was obtained. Ultimately, the learned Sub Divisional Magistrate held that from the evidence on record, it was not proved as to which party was actually in possession over the land in question and there is apprehension of breach of peace between the parties with regard to possession. As such, the land in question was attached and the Naib Tehsildar was appointed as a Receiver under Section 146 of Criminal Procedure Code Thereagainst, the respondents filed a revision petition which has been accepted vide impugned order, which is liable to be set aside being unsustainable. The learned Additional Sessions Judge has wrongly held that "a civil suit regarding the declaration and possession is pending between the parties in the Civil Court which has passed the order of status quo and since the Civil Court is seized of the matter, it is not open to the Magistrate to initiate the proceedings under Section 145/146 of Criminal Procedure Code" I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. 3. Learned counsel for the petitioners urged with full force that in fact the proceedings in Civil Court and the proceedings under Sections 145 and 146 of the Code of Criminal Procedure operate in different fields. The object of Sections 145/146 ibid is to maintain the public order and tranquility and also to prevent breach of peace concerning disputes between the parties relating to immovable properties. The object of Sections 145/146 ibid is to maintain the public order and tranquility and also to prevent breach of peace concerning disputes between the parties relating to immovable properties. The order of status-quo in question does not determine or adjudicate as to which party was in possession of the property. In fact, it is an order which gives right to both the parties to establish claims regarding possession during the course of trial by leading evidence. During such proceedings, if there is apprehension of breach of peace, it would always be an option for a Magistrate to initiate the proceedings under Sections 145/146 of Criminal Procedure Code The learned Additional Sessions Judge has observed that the SHO has already initiated proceedings under Section 107/151 of Criminal Procedure Code but he has lost sight of the fact that the scope under Sections 107/151 of Criminal Procedure Code and Sections 145/146 of Criminal Procedure Code is entirely different. The provisions of Section 146 of Criminal Procedure Code have been misconstrued by the learned Additional Sessions Judge, who has completely failed to appreciate that the technicalities of law can never be permitted to defeat the ends of justice. It has been wrongly observed that the learned Sub Divisional Magistrate had firstly appointed a Receiver and, thereafter, the property was wrongly attached. This observation is unsustainable as the order Annexure P.2 Passed by the learned Sub Divisional Magistrate is in conformity with the provisions enshrined in Section 141 of Criminal Procedure Code In these premises, the impugned order is liable to be set aside. 4. To drive home the point, he has sought to place abundant reliance upon the observations rendered in re: Mukhtiar Singh v. State of Punjab, 1997(3) RCR(Crl.) 14, Pushpinder Kaur v. Sub Divisional Magistrate, Rajpura, 1997 (3) RCR(Crl.) 315 and Jaswant Singh v. State of Punjab, 1997 (3) RCR(Crl.) 705. 5. To tide over these submissions, the learned counsel for the respondents argued that the Civil Court being seized of the matter has directed the parties to maintain status quo regarding the property in dispute. When civil proceedings are pending between the parties, it is not open to the learned Sub Divisional Magistrate to initiate the proceedings under Sections 145/146 of Criminal Procedure Code . Thus, the impugned order in no manner can be faulted with. When civil proceedings are pending between the parties, it is not open to the learned Sub Divisional Magistrate to initiate the proceedings under Sections 145/146 of Criminal Procedure Code . Thus, the impugned order in no manner can be faulted with. To buttress this stance, he has sought to place abundant reliance upon the observations rendered in Mst. Manzooran v. State of Punjab, 1987(1) RCR(Crl.) 405, Shri Raghbir Dass Mahant Chela Madan Mohan Dass v. Sub Divisional Magistrate, Jagadhri and others, 2003(1) RCR(Crl.) 829, Tara Singh v. State of Haryana and another, 1986(2) RCR(Crl.) 559, Ghaman Singh v. Dalip Singh and others, 2008(3) RCR(Crl.) 248, Sudershan Singh v. Roshan Singh and others, 2004 (4) RCR(Crl.) 372, Karam Singh v. Sub Divisional Magistrate, Zira, 2001(2) RCR(Crl.) 617, Ram Krishan Dass Chela and others v. Rameshwar Dass and others, 1986(2) RCR(Crl.) 382; Jai Singh and others v. State of Haryana, 1985(2) RCR(Crl.) 159 and Balwant Singh v. State of Punjab, 1995(1) RCR(Crl.) 744. 6. On giving a deep and thoughtful consideration to the rival contentions, I regret my inability to be one with Mr. N.S. Shekhawat, learned counsel for the petitioners for the discussion to follow hereunder :- 7. As ruled by the Apex Court in re: Ram Sumer Puri Mahant v. State of U.P. and others, AIR 1985 Supreme Court 472, "When a civil litigation is pending for the property, wherein the question of possession is involved and has been adjudicated initiation of parallel criminal proceeding under Section 145 of the Code, would not be justified. The parallel proceedings should not be permitted to continue and in the event of a decree of the civil Court, the criminal Court should not be allowed to invoke its jurisdiction) particularly when possession is being examined by the civil Court and parties are in a position to approach the civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties, nor should public time be allowed to be wasted over meaningless litigation." 8. Herein, it is own case of the parties that the petitioners have filed a civil suit wherein order of status quo has been passed. Multiplicity of litigation is not in the interest of the parties, nor should public time be allowed to be wasted over meaningless litigation." 8. Herein, it is own case of the parties that the petitioners have filed a civil suit wherein order of status quo has been passed. In Annexure P.1 the impugned order, the learned Additional Sessions Judge, Narnaul has observed that "civil suit is pending between the parties regarding the title and possession of the land in dispute. In paragraph No. 3 of the judgment delivered by the Apex Court in case Prakash Chand Sachdeva v. State and another, 1994(3) RCR(Crl.) 217, It has been observed that "True, a suit or remedy in civil Court for possession or injunction normally prevents a person from invoking jurisdiction of the criminal Court as observed by this Court in Ram Sumer Puri Mahant v. State of U.P., AIR 1985 Supreme Court 472, particularly when possession is being examined by the civil Court and parties are in a position to approach the civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties, nor should public time he allowed to be wasted over meaningless litigation. The normal rule is as stated by the Court in Puris case. But that was a suit based on title. And that could be decided by civil Court only. That ratio cannot apply where there is no dispute about title." In the instant case, the learned Additional Sessions Judge has specifically mentioned in the impugned order that the civil suit is pending between the parties regarding the title. Thus in view of Prakash Chand Sachdeva (supra) for interim orders such as injunction or appointment or receiver, the petitioners were required to approach the Civil Court which is seized of the matter. The Civil Court being in session, the petitioners were not required to knock at the door of the learned Sub Divisional Magistrate, Mahendergrarh, whose act in initiating the proceeding under Sections 145/146 of the Code of Criminal Procedure was not justified in view of Ram Sumer Puri Mahant (supra). As such, the same could not be permitted to continue. Appallingly, the learned Sub Divisional Magistrate, Mahendergarh has invoked jurisdiction under the said Sections though the possession is being examined by the Civil Court. As such, the same could not be permitted to continue. Appallingly, the learned Sub Divisional Magistrate, Mahendergarh has invoked jurisdiction under the said Sections though the possession is being examined by the Civil Court. 9. Order 40 of the Code of Civil Procedure reads in the following terms :- 1. Appointment of receivers. -- (1) Where it appears to the Court to be just and convenient, the Court may by order - (a) appoint a receiver of any property, whether before or after decree; (b) remove any person from the possession or custody of the property; (c) Commit the same to the possession, custody or management of the receiver; and (d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit. (2) Nothing in this rule shall authorise the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove." 10. It has been manifested in the language of this order that in the situations enumerated therein, the Civil Court is competent to appoint the receiver. Thus to say the least of it, the Civil Court is not powerless to deal with a situation as was projected by the petitioners before the learned Sub, Divisional Magistrate. Mahendergarh to attach the property and appoint the receiver in the exercise of provisions enshrined in Section 145/146 of the Code of Criminal Procedure. When there is a specific provision in the Code of Civil Procedure itself, or in other words an efficacious remedy has been provided under civil law, it is surprising that the petitioners preferred to approach the above-referred forum. Of course, if there was apprehension of breach of peace, the learned Sub Divisional Magistrate, Mahendergarh by calling in aid the provisions of Section 107/151 of the Code of Criminal Procedure could initiate the security proceedings against the parties. In re Shri Raghbir Dass Mahant Chela Madan Mohan Dass (supra), there was a dispute over the possession of land. The order of status quo was passed by the Civil Court. In re Shri Raghbir Dass Mahant Chela Madan Mohan Dass (supra), there was a dispute over the possession of land. The order of status quo was passed by the Civil Court. Thereafter, the proceedings under Sections 145 and 146 of the Criminal Procedure Code were switched over. It was held by this Court that necessary direction or modification of order of status quo could have been sought from the Civil Court itself. With regard to breach of peace, the proceedings under Section 107/151 of the Code of Criminal Procedure have been rightly initiated by the police and the proceedings under Sections 145 and 146 of the Code of Criminal Procedure were not competent. In re: Tara Singh (supra) also the Civil Court had passed an interim order of status quo with regards to the possession of the land in dispute. The learned Sub-Divisional Magistrate by proceeding under Sections 145 and 146 of the Code of Criminal Procedure had attached the land. It was held that the order of Magistrate under Section 146 ibid is untenable in such a case. It is, however, open to the Magistrate to resort to proceedings under Section 107 of Criminal Procedure Code, if breach of peace is apprehended. An identical view has been taken in re : Ghaman Singh (supra), Sudershan Singh (supra), Karam Singh (supra), Jai Singh and others (supra) and Balwant Singh (supra). It deserves to be pointed out here that in these referred cases too, the order of status quo was passed by the Civil Court. All the three authorities sought to be relied upon by the learned counsel for the petitioners have been rendered by Honble Mr. Justice R.L. Anand. In re : Mukhtiar Singh (supra) there was a dispute over possession of land. The Civil Court had directed the parties to maintain status quo. There was apprehension of breach of peace. It was held that there was no illegality in proceeding under Sections 145 and 146 of the Code of Criminal Procedure in the circumstances. In re : Pushpinder Kaur (supra), there was a dispute over possession of land. The Civil Court gave a finding that one party was in established possession of land. There was apprehension of breach of peace. It was held that there was no illegality in proceeding under Sections 145 and 146 of the Code of Criminal Procedure in the circumstances. In re : Pushpinder Kaur (supra), there was a dispute over possession of land. The Civil Court gave a finding that one party was in established possession of land. It was held that if there is no specific finding regarding possession in one way or the other and the parties are in a mood to commit a breach of peace, in such a situation, the proceedings under Section 145 of Criminal Procedure Code be attracted to avoid breach of peace and the proceedings under Sections 145 and 146 of Criminal Procedure Code are not competent at the instance of opposite party. In re : Jaswant Singh (supra), there was a dispute over possession of land. The civil suit was already pending. The order of status quo was passed by the Civil Court. There was apprehension of the breach of peace. It was held that "the proceedings under Section 145/146 of the Code of Criminal Procedure are competent as the order of status quo does not adjudicate the rights of parties finally. It is no order in the eyes of law as the matter regarding possession is left open by the Civil Court." A meticulous perusal of plethora of rulings cited on behalf of the respondents would reveal that in those cases too, the Civil Court had passed the order of status quo. The concept of judicial precedent as emerges out of these authorities is that the proceedings under Section 145/146 of the Code of Criminal Procedure are not competent, when the Civil Court is already seized of the matter. However. in the event of there being apprehension of breach of peace, the parties can be arrayed under security proceedings in the exercise of powers conferred upon the Magistrate under Section 107/151 of the Code of Criminal Procedure. However. in the event of there being apprehension of breach of peace, the parties can be arrayed under security proceedings in the exercise of powers conferred upon the Magistrate under Section 107/151 of the Code of Criminal Procedure. The Honble Supreme Court in case of Mathuralal v. Bhanwarlal and another, AIR 1980 Supreme Court 242 has been pleased to lay down that when civil proceedings are pending between the parties, it is not open to the learned Magistrate to initiate proceedings under Sections 145/146 of Criminal Procedure Code In case of Tek Ram and another v. Sub Divisional Magistrate & Others, 1997(2) RCR(Crl.) 549 (P&H), a similar view has been taken. With utmost humility and great respect to his lordship (Honble Mr. Justice R.L. Anand) in the face of the catena of the rulings referred to by the learned counsel for the respondents, it will be difficult for me to follow the observations rendered by his Lordship. To conclude finally, if the petitioners were dis-satisfied for one or the other reason with the status-quo order passed by the learned trial Court, they could have recourse to either the modification of such order or sought appointment of receiver as well as attachment of the disputed land. In view of this, the learned Sub Divisional Magistrate, Mahendergarh was not competnet and justified to initiate the proceedings under Sections 145/146 of Criminal Procedure Code In the ultimate analysis, the impugned order does not suffer from any legal infirmity or material irregularity. Sequelly, this petition being devoid of any merit is dismissed. Petition dismissed.