Research › Search › Judgment

Uttarakhand High Court · body

2014 DIGILAW 500 (UTT)

Navi Ahmad v. State of Uttarakhand

2014-10-29

ALOK SINGH

body2014
Judgment : Undisputedly Jameel Ahmad, Tasveer Ahmad, Ameer Ahmad and Navi Ahmad are the real brothers and sons of Naney. In the property in question, Jameel Ahmad, Tasveer Ahmad, Ameer Ahmad and Navi Ahmad were the co-owners; property was never partitioned either mutually or by the court of law; respondent nos. 2 to 5 are the purchasers from Jameel, one of the co-owners. 2. In the present case, learned Magistrate was pleased to initiate proceedings under Section 145 (1) of the Code of Criminal Procedure and was further pleased to attach the property under Section 146 (1) of the Code, vide order dated 13.6.2007. In a criminal revision, learned Additional Sessions Judge was pleased to set aside the order dated 13.6.2007, vide impugned order dated 14.7.2009. Feeling aggrieved, first party/revisionist has filed the present revision. 3. The sole question is as to whether proceedings under Section 145 CrPC can be initiated when there is a dispute between the co-owners? 4. This is the settled position of law that when there is a apprehension of breach of peace pertaining to dispute regarding the possession over the immovable property or water channel, Magistrate in a proceeding drawn under Section 145 of the Code of Criminal Procedure shall decide as to which of the party was in possession within two months next before the date on which the report of the police officer or other information was received by the Magistrate. If Magistrate is not able to decide that which of the party was in possession within two months next before the date on which the report of the police officer or the other information was received by the Magistrate, Magistrate may attach the property and shall leave the parties to approach the competent court to get decided their respective possession as well as title. 5. Under sub-section (1) of Section 146 of the Code, a property can be attached soon after the issuance of the notice under sub-section (1) of Section 145 CrPC when the Magistrate considers the case to be one of the emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145 or if he is unable to satisfy himself as to which of the party was in such a possession of the subject of dispute. 6. 6. This is the settled position of law that every co-owner shall be deemed to be in possession of every inch of the property unless proved otherwise. If possession of every co-owner over every inch of land stands proved then the property cannot be put in attachment saying Magistrate is unable to decide which of the party is in possession. Therefore, no proceeding should be allowed to be initiated by the Magistrate under Section 145 CrPC when there is a dispute between the co-owners of the immovable property, and co-owners should be left to approach the appropriate forum seeking partition or any other appropriate relief. 7. Mr. M.K. Goyal, learned counsel for the revisionist, submits that although property in question has never been partitioned between the co-owners, however, fact remains that respondent nos. 2 to 5 are not the family members of the revisionist, therefore, Section 145 of the Code can be invoked. Further contends that some portion of the land in question is lease hold land of the revisionist and his brothers and as per the condition of the lease, the co-lessee was not authorized to make transfer in favour of respondent nos. 2 to 5, therefore, alleged transfer pertaining to the portion of the land is void. 8. Admittedly, till day lease has not been cancelled on the ground that one of the co-lessee has made the transfer in violation of the lease deed. Therefore, till the lease is cancelled/revoked, respondent nos. 2 to 5, purchasers from the co-owner/co-lessee, shall be deemed to be in possession of every inch of the land. 9. In my considered opinion, even if respondent nos. 2 to 5 are not the family member of the revisionist, the fact remains that they are purchasers from the co-owner, real brother of the revisionist, therefore, being purchasers from the co-owner, they shall be deemed to be co-owners in possession of every inch of the property. Therefore, initiation of proceedings under Section 145 CrPC itself was wrong and without jurisdiction. Consequently, Magistrate was having absolutely no jurisdiction to attach the property by invoking Section 146 (1) of the Code. 10. In the result, revision fails and is hereby dismissed.