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2009 DIGILAW 49 (JHR)

Sheela Devi v. State of Jharkhand

2009-01-12

D.K.SINHA

body2009
JUDGMENT D.K.Sinha,J. The petitioners have invoked the extraordinary writ jurisdiction under Article 226 of the Constitution of India for quashment of the proceeding under Section 144 Cr.P.C. which was later on converted into one under Section 145 Cr.P.C. by the Sub Divisional Magistrate, Barhi in Misc. Case No. 71 of 2007. 2. The short facts of the case are that the petitioners had purchased part of the land measuring about 34 decimals appertaining to Khata No.29, Plot No. 903 situated at village Chauparan within the district of Hazaribagh through registered sale deed No. 7666 dated 18.05.2005 from the rightful owner of the land. After purchasing the said land, the petitioners got their names mutated and obtained the rent receipts and have been paying the rent regularly. After some time, they constructed a residential house over the purchased plot where they started living. 3. The petitioners herein alleged that the respondent No.3 with the ulterior motive filed a Title Suit No.140/2006 in the Court of Subordinate Judge, Hazaribagh against the petitioners and other persons for the declaration that the sale deed being No. 7666 dated 18.05.2005 executed in favour of the petitioners was illegal and not binding upon him, though the copy of the plaint of the suit has not been brought on the record. 4. The Counsel for the petitioners urged that the subject matter of the suit as described in Schedule II of the plaint of the Title Suit No. 140 of 2006 was as follows:- “ Land Situated at village Chouparan, Police Station-Chouparan, Thana No. 64, District-Hazaribagh, Khata No.29, Plot No. 903, Area 0.34 acres out of 1.02 acres bounded on North-Land of Harun Rashiq. South-Land of Padarath Singh in the same plot. East-Land of Khedan Sarhi. West-Simana Manza Domadadi.” 5. In the said suit, the Respondent No.3-Plaintiff had preferred an application under Order 39 Rule 1 & 2 Code of Civil Procedure seeking injunction restraining the petitioners-defendants from making any construction or structure over the suit land but the Injunction Petition, as preferred by the Plaintiff-Respondent No.3 was rejected on contest on 24.08.2007. West-Simana Manza Domadadi.” 5. In the said suit, the Respondent No.3-Plaintiff had preferred an application under Order 39 Rule 1 & 2 Code of Civil Procedure seeking injunction restraining the petitioners-defendants from making any construction or structure over the suit land but the Injunction Petition, as preferred by the Plaintiff-Respondent No.3 was rejected on contest on 24.08.2007. According to the petitioners, the Respondent No.3 (Nand Kishore Singh) filed a petition after three days before the Court of Sub-Divisional Magistrate, Barhi on 30.08.2007 for initiation of a proceeding against the petitioners under Section 144 Cr.P.C. with respect to the same land, which was the subject matter of the Title Suit No.140 of 2006. On such application, proceeding was initiated under Section 144 Cr.P.C. vide Misc. Case No.71 of 2006 and in their causes shown the petitioners clearly stated that they were the rightful owner being the purchaser and their names were mutated in the Revenue Record of the State Government. They further explained that after mutation, they constructed their house and were residing therein and that the Injunction Petition filed by the Respondent No.3 restraining the petitioners was rejected on 24.08.2007. 6. Learned Counsel pointed out that in spite of the clear case of the petitioners, the learned S.D.M., Barhi converted the proceeding which was initiated under Section 144 Cr.P.C. in one under Section 145 Cr.P.C. vide order dated 25.10.2007 on the simple application of the Respondent No.3 which was unwarranted, arbitrary, illegal and mala fide, brought about without application of mind though the petitioners submitted that when a civil suit was pending for the same piece of land between the same parties for declaration of title and cancellation of the sale deed and that the fact was highlighted that the Injunction Petition filed by the Respondent No.3 herein under Order 39 Rule 1 & 2 of the C.P.C. was rejected, learned S.D.M. committed error of law by converting the proceeding into under Section 145 Cr.P.C. by the impugned order and in support whereof the learned Counsel placed his reliance upon a decision reported in A.I.R. 2000 S.C. 1504. The Apex Court in Amresh Tiwari V. Lalta Prasad Dubey & another held:-, “ In this case the civil suit had been filed first. An Order of status quo had already been passed by the competent civil court. Thereafter Section 145 proceedings were commenced. The Apex Court in Amresh Tiwari V. Lalta Prasad Dubey & another held:-, “ In this case the civil suit had been filed first. An Order of status quo had already been passed by the competent civil court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram Sumers case ( AIR 1985 SC 472 : 1985 Cri LJ 752) (supra) fully applies. We clarify that we are not stating that in every case where a civil suit is filed. Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court that proceedings under Section 145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil court would be binding on the Magistrate.” 7. A counter-affidavit has been filed on behalf of the S.D.M., Barhi-Respondent No.2 stating inter alia that as to whether the petitioners’ residential house was in their possession or not was to be examined after taking evidence of the parties and it was possible only after conversion of the proceeding under Section 144 Cr.P.C. into one under Section 145 Cr.P.C. 8. Though the Respondent No.3 entered appearance by executing Vakalatnama but did not file any affidavit placing his stand. 9. Regard being had to the facts and circumstances of the case, I find from the petition of the petitioners that the Title Suit No.140 of 2006 which was brought about by the Respondent No.3 Nand Kishore Singh before the Sub-Judge, Hazaribagh was for declaration of sale deed bearing No. 7666 dated 18.05.2005 as illegal and not binding on him with additional prayer for the cost of the suit and other reliefs. The petitioners herein are silent in relation to the nature of “ other reliefs” and there is no material on the record, since the Respondent No.3 is silent as to whether the other reliefs contained declaration of possession. 10. The petitioners herein are silent in relation to the nature of “ other reliefs” and there is no material on the record, since the Respondent No.3 is silent as to whether the other reliefs contained declaration of possession. 10. The specific defence of the petitioners is that the proceeding initiated under Section 144 Cr.P.C. on the same land after institution of Title Suit and the conversion of the said proceeding under Section 145 Cr.P.C. was not maintainable in the backdrop as well that the Injunction Petition filed by the Respondent No.3 was refused by the Sub-Judge-I in Title Suit aforesaid. 11. The proposition of law as relied upon by the learned Sr. Counsel Mr. Rana Pratap Singh clearly indicated that the subsequent proceeding under Section 144 Cr.P.C. or its conversion into one under Section 145 Cr.P.C. was not maintainable where civil suit is for possession or declaration of Title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the Civil Court. It was held by the Apex Court that only because the Civil Court was competent to decide the question of title as well as possession between the parties, the orders of the Civil Court would be binding on the Magistrate in seisin of the criminal proceeding and under the above situation the proceedings under Section 145 Cr.P.C. should not be allowed. 12. The facts emerging from the arguments indicate that the Respondent No.3 herein filed a Title Suit No.140 of 2006 before the Subordinate Judge, Hazaribag against the petitioners-defendant seeking reliefs mainly for declaration that the registered sale deed whereby the defendants petitioners purchased the suit land was not binding upon him. This part of relief sought to be claimed by the Plaintiff-Respondent No.3 does not restrict him under the proposition of law as laid down in A.I.R. 2000 S.C. 1504 (Amresh Tiwari Vs. This part of relief sought to be claimed by the Plaintiff-Respondent No.3 does not restrict him under the proposition of law as laid down in A.I.R. 2000 S.C. 1504 (Amresh Tiwari Vs. Lalta Prasad Dubey and another) and the learned Sub-Divisional Magistrate, Barhi would have been within his jurisdiction to initiate proceeding under Section 144 Cr.P.C. or its conversion into 145 Cr.P.C. But since the fact was placed at the time of the said conversion that the petition for injunction filed under Order XXXIX Rule 1 and 2 Code of Civil Procedure by the Plaintiff-Respondent No.3 for restraining the petitioners from raising construction over the suit land was rejected, it gives rise to reasonable inference that the civil court in seisin had prima facie examined the factum of possession over the suit land and refused injunction against the petitioners-defendants and only with a view to defeat the interest of the petitioners, the Respondent No.3 initiated the proceeding under Section 144 Cr.P.C. for deciding the factum of possession in disguise once again which was converted into 145 Cr.P.C. Therefore, such proceeding under Section 145 Cr.P.C. was not maintainable, which cannot sustain. In the circumstances the order impugned dated 25.10.2007 passed by the Sub-Divisional Magistrate, Barhi in Misc. Case No.71 of 2007 is set aside and accordingly proceedings against the petitioners are dropped. This writ petition is allowed.