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2020 DIGILAW 67 (AP)

A. Pullamma, YSR District v. State of AP

2020-01-28

U.DURGA PRASAD RAO

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JUDGMENT : U Durga Prasad Rao, J. The challenge in this Criminal Petition, at the instance of 1st petitioner/A-party, is to the order, dated 24.11.2012 passed under Section 145 of Cr.P.C by learned Executive Magistrate, Mydukur, YSR Kadapa District in M.C.No.33 of 2011 holding that the respondents/B-party were in possession of the schedule land of Ac.2.30 cents in S.No.326 in Ganjikunta Village and they were entitled to be in possession until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction. 2. Learned Executive Magistrate passed the above order on the main observation that A-party has filed O.S.No.183 of 2011 on the file of Senior Civil Judge, Proddatur, wherein itself A-party admitted that B-party has been in possession and further, in the said suit, in I.A.No.1687 of 2011 the Court has granted interim injunction in favour of B-party by restraining A-party in any way interfering with peaceful possession and enjoyment of B-party over the schedule land till disposal of the suit and interim injunction order has become final, as no appeal was filed. No doubt, A-party has contended before learned Executive Magistrate that the schedule land belong to Ankireddipalli Obula Reddy, the husband of respondent No.1 of A-party and in respect of the said land and some other properties, there was a dispute and on 07.10.1998, learned Special Officer of Tenancy Tribunal-cum-Principal Junior Civil Judge, Proddatur, dismissed ATC No.8 of 1997 filed by Sala Veeramma against the respondent No.1 in A-party and other and further, the appeal in ATA No.7 of 1998 preferred by said Sala Veeramma was also dismissed by learned District Judge, YSR Kadapa and therefore, the said order being passed by a superior Court i.e., District Court, Kadapa, the same would prevail over the interim injunction order passed by inferior Court i.e., Senior Civil Judge, Proddatur in I.A.No.1687 of 2011 in O.S.No.183 of 2011. However, learned Executive Magistrate did not give weight to the above contention of A-party on the observation that in O.S.No.183 of 2011 filed by A-party, it has admitted the possession of B-party and prayed the Court for recovery of possession and declaration of title and therefore the possession of B-party was admitted irrespective of judgments in ATC No.8 of 1997 and ATA No.7 of 1998. Accordingly, the Executive Magistrate passed the impugned order. 3. Accordingly, the Executive Magistrate passed the impugned order. 3. Heard learned counsel for petitioner Sri V.R. Reddy Kovvuri and learned counsel for respondents Sri L.J. Veera Reddy. 4. Seriously castigating the order impugned, learned counsel for petitioner would vehemently argue that when a competent civil Court has seized the dispute relating to the title and possession over the property, the Executive Magistrate shall not take up the same issue and pass an order. On this main plank of argument, he sought to set aside the impugned order. 5. Per contra, while supporting the impugned order, learned counsel for respondents 3 to 5 argued that in this case even according to the admission of the petitioner in O.S.No.183 of 2011, the B-party herein are in possession of the schedule land and in fact, the Civil Court granted interim injunction in their favour in I.A.No.1687 of 2011 and therefore considering these facts learned Executive Magistrate passed the order stating that the possession of B-party shall continue until they are evicted by due course of law. Since the said order is in consonance with the interim order of the Civil Court, the same cannot be found fault. He prayed to dismiss the petition. 6. The point for consideration is whether there are merits in the criminal petition to allow? 7. The law on the powers of Executive Magistracy to pass an order under Section 145 of Cr.P.C is no more res integra. The power conferred under Section 145 Cr.P.C is one of preventive but not decisive in respect of the title concerning to any land or water or the boundaries of a property which is the bone of contention between two rival groups. The objective of Section 145 Cr.P.C is to create and confer preventive jurisdiction on the executive Magistrate in respect of disputes regarding possession or right of use of land or water or its boundaries, which result in breach of peace. When such dual between two conflicting interests came to the knowledge of an executive Magistrate either through the report of the Police officer or upon other information, he has to initiate the preventive action as laid down under Section 145 Cr.P.C. He shall direct the parties to appear before him and conduct enquiry after receiving their written statements. When such dual between two conflicting interests came to the knowledge of an executive Magistrate either through the report of the Police officer or upon other information, he has to initiate the preventive action as laid down under Section 145 Cr.P.C. He shall direct the parties to appear before him and conduct enquiry after receiving their written statements. Without referring to the merits or claims of any of the parties to a right to possession of subject of dispute, he has to decide which one of the parties was, at the date of order was in possession of the subject property in dispute. If any party was forcibly and wrongfully dispossessed within two months next before the date on which the report of the Police Officer or other information was received by him, he shall take note of the same. Thereafter, the Magistrate shall pass an order declaring such party to be entitled to the possession until evicted in due course of law. This is the procedure contemplated under Section 145 of Cr.P.C. 8. Sometimes, when parties who are litigating before a Civil Court of law regarding title and possession of an immovable property may be on logger heads, causing breach of public peace and tranquillity. In such a case, the question is whether he can follow the procedure contemplated under Section 145 of Cr.P.C and conduct an enquiry as to which party was in possession by the date of Police report or his knowledge. On this aspect, we have several decisions held thus: In the decision Ram Sumer Puri Mahant v. State of U.P., (1985) AIR SC 472 = 1985 CriLJ 752 (1) (SC), the Apex Court observed thus: "When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us." The principle laid down in Ram Sumer Puri Mahant's case (supra) was upheld by the Apex Court in its another decision Amresh Tiwari vs. Lalta Prasad Dubey, (2000) AIR SC 1504. It was observed thus: "Para 13 : We are unable to accept the submission that the principles laid down in Ram Sumers' case would only apply if the civil Court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumers' case is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the civil Court and parties are in a position to approach the civil Court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue."(Emphasis supplied). Para 14. xxx.......In our view on the facts of the present case the ratio laid down in Ram Sumers' case (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.......xxx." 9. Relying upon the judgment in Ram Sumer Puri Mahant's case (1 supra) the High Court of Madras in Indira v. Vasantha, (1991) CriLJ 1798 : MANU/TN/0114/1990 held thus: "Para 17. The last ground relates to the initiation of parallel proceedings, when the identical matter in respect of the disputed property was pending in the Civil Court. The Supreme Court in Ram Sumer Puri Mahant v. State of U.P., (1985) AIR SC 472 : MANU/SC/0108/1984 observed that when a civil litigation was pending in respect of the property wherein the question of possession was involved, initiation of a parallel criminal proceedings under S.145 of the Code would not be justified. This Court in Govindaswami Pillai v. S.I. of Police Aranthangi,1987 LW 111 : MANU/TN/0385/1986 and Magdoom v. Jalal, 1988 LW 89 : MANU/TN/0408/1987 applying the dictum of the Supreme Court aforementioned, held that in view of the parties agitating the same subject-matter in a competent Civil Court, parallel proceedings should not be allowed to go on by wasting public time. This Court in Govindaswami Pillai v. S.I. of Police Aranthangi,1987 LW 111 : MANU/TN/0385/1986 and Magdoom v. Jalal, 1988 LW 89 : MANU/TN/0408/1987 applying the dictum of the Supreme Court aforementioned, held that in view of the parties agitating the same subject-matter in a competent Civil Court, parallel proceedings should not be allowed to go on by wasting public time. There was no other option, except to terminate the proceedings commenced by the Executive Magistrate, when a civil litigation was pending between the same parties, in respect of the same property, for whatever relief that could be obtained under S. 145, Cr.P.C., would also be available to the parties in the Civil Court." 10. From the above jurisprudence, it is discernible that when the dispute touching the same subject property was either pending or already disposed of by a Civil Court, the proceedings under Section 145 of Cr.P.C are not maintainable. In the instant case, the B-party are seeking to justify the order of learned Executive Magistrate on the contention that an interim injunction was granted in their favour and the petitioner herein has admitted in O.S.No.183 of 2011 that B-party are in possession of the subject land and therefore the order of the Executive Magistrate which is in tune with the Civil Court's order is perfectly right. However, it should be noted that the petitioner's contention is that in Tenancy proceedings, they succeeded in both the Courts and therefore the order in ATA No.7 of 1998 prevails over the order in I.A.No.1687 of 2011 in O.S.NO.183 of 2011. Therefore, the bone of contention is which order prevails over the other. In my considered view, in such an event, learned Executive Magistrate ought to have directed parties to vindicate their respective rights before the concerned Civil Court where the suit is pending. Hence, the impugned order is not legally maintainable. In spite of Executive Magistrate referring the parties to Civil Court to vindicate their rights, if still they engage in causing breach of public peace and tranquillity what is the course open to Executive Magistrate has been discussed by this Court in its order, dated 27.11.2019 in W.P.No.18610 of 2019. Hence, the impugned order is not legally maintainable. In spite of Executive Magistrate referring the parties to Civil Court to vindicate their rights, if still they engage in causing breach of public peace and tranquillity what is the course open to Executive Magistrate has been discussed by this Court in its order, dated 27.11.2019 in W.P.No.18610 of 2019. It was observed thus: Before parting, sometimes despite the executive Magistrate instructing the parties to vindicate their rights before Civil Court where the matter is pending, the parties may still wrangle outside the Court and thereby cause breach of public peace and tranquillity. In such an event, the executive Magistrate is not totally powerless to prevent the breach of public peace and tranquillity. At that juncture, he, if not under Section 145 Cr.P.C., can initiate proceedings under Section 107 Cr.P.C. against the parties who are disturbing the peace and tranquillity. Such a power is vested in the Magistrate in the light of Section 145 (10) Cr.P.C. which says that nothing in that Section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107 Cr.P.C. 11. In view of above discussion, this Criminal Petition is allowed and the impugned order in MC.No.33 of 2011 dated 24.11.2012 passed by the 2nd respondent, is hereby set aside and the petitioner and the respondent Nos.3 to 5 and their men are directed to approach the Civil Court where the civil suit is pending and vindicate their rights concerning to title and possession over the disputed property. Needless to emphasise if the parties despite pendency of the civil suit bent upon causing breach of public peace and tranquillity, the Executive Magistrate is authorized to initiate proceedings under Section 107 of Cr.P.C. No costs. As a sequel, interlocutory applications pending, if any, shall stand closed.