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2021 DIGILAW 1874 (MAD)

Vengatesan v. Executive Magistrate, And Revenue Divisional Officer, Tiruvallur

2021-07-09

P.VELMURUGAN

body2021
ORDER : This Criminal Revision Case has been filed against the order dated 25.06.2021 passed in Na.Ka.1224/2020/A1 by the Executive Magistrate, And Revenue Divisional Officer, Tiruvallur. 2. According to petitioners, the respondents 3, 4 and 6 and the petitioners are brothers and their grandfather, who was the absolute owner of the lands in Survey Nos.136/2, 137/3 and 138/4B situated at Chembarambakkam Village, Poonamallee Taluk, Tiruvallur District, measuring a total extent of 7 Acres 41 cents, has settled the same in favour his son T.Mohanarangam, who is father of the petitioners and the respondents 3, 4 and 6. Later, the said T.Mohanarangam due to old age illness fell bed ridden and taking advantage of the same, the respondents 3 to 5 started digging the lands and selling the red soil to third parties illegally without knowledge of either of the legal of heirs of the said T.Mohanarangam. Hence, 2nd petitioner and 6th respondent jointly filed a suit in O.S.No.266 of 2019 before the learned Additional District Munsif, Poonamallee for various reliefs of permanent injunctions. During pendency of the suit, T.Mohanarangam died intestate and at the time of his death, there are 80 loads of baked bricks, 50 loads of savudu sand and 3,00,000 nos. of unbaked bricks kept in the land worth Rs.15,00,000/- (Rupees Fifteen Lakhs only). The respondents 3 to 5 are illegally trying to occupy the entire properties and the goods available in the land and when the petitioners restrained them, they with the help of hooligans threatened with dire consequences. Thereafter 1st petitioner lodged complaint before 2nd respondent against the respondents 3 to 5, countering the same, 3rd respondent lodged complaint against the petitioners and 2nd respondent conducted enquiry and advised to approach the Civil Court. However, again respondents 3 to 5 have attempted to dispose the movable properties in the land and hence 1st petitioner again lodged complaint and 2nd respondent warned the respondents 3 to 5 refraining their illegal acts over the properties, however, since they refused the same, 2nd respondent registered a case in Crime No.667 of 2020 under Section 145 of Cr.P.C. and forwarded the same to 1st respondent for further proceedings. In pursuant to the same, the Tahsildar, Poonamallee had conducted an enquiry and based on his report, 1st respondent passed order dated 29.09.2020 determining the rights unilaterally in favour of the respondents 3 to 5. In pursuant to the same, the Tahsildar, Poonamallee had conducted an enquiry and based on his report, 1st respondent passed order dated 29.09.2020 determining the rights unilaterally in favour of the respondents 3 to 5. Aggrieved against the same, Criminal Revision has been filed with a petition in Crl.M.P.6145 of 2020 seeking stay and this Court by order dated 09.10.2020 granted interim stay and at the time of final disposal, this Court by order dated 08.04.2021 set aside the order of 1st respondent dated 29.09.2020 and remanded the matter back for fresh consideration in accordance with law and directed to complete the proceeding within a period of three months from the date of receipt of the order. Thereafter, both the petitioners and the respondents 3 to 5 have appeared before 1st respondent and after enquiry, 1st respondent passed the impugned order dated 25.06.2021 determining the rights in favour of the respondents 3 to 5, which warrants interference of this Court. 3 The learned Government Advocate (Crl.Side) appearing for the respondents 1 & 2 submitted that in view of the order passed by this Court in Crl.R.C.No.918 of 2020, the first respondent considered the matter afresh and passed the order dated 25.06.2021. 4. Heard the learned counsel appearing for the petitioners and the learned Government Advocate (Crl.Side) appearing for the respondents 1 & 2. 5. Admittedly, there is a civil dispute between the petitioners and the respondents 3 to 6 regarding the land in question and the 80 loads of baked bricks, 50 loads of savudu sand and 3,00,000 nos. of unbaked bricks kept in the land. It is also to be noted that both the parties have approached the Civil Court separately against each others seeking right over the disputed land and the above said movable goods. The first respondent without applying his mind and without any satisfactory materials passed the impugned order. 6. It is well settled proposition of law, when a civil suit is pending before the Civil Court, the Revenue Divisional Officer has no jurisdiction to initiate proceedings under Section 145 Cr.P.C, even if, he has already proceeded. In this case, the parties have already disputed their respective possession before the Civil Court. Further, in the judgment cited supra also referred various decisions of the Hon’ble Supreme Court the relevant paragraphs are extracted hereunder : ''Cannot move forums parallelly: 36. In Ram Sumer Puri Mahant Vs. In this case, the parties have already disputed their respective possession before the Civil Court. Further, in the judgment cited supra also referred various decisions of the Hon’ble Supreme Court the relevant paragraphs are extracted hereunder : ''Cannot move forums parallelly: 36. In Ram Sumer Puri Mahant Vs. State of U.P. [ 1985 (1) SCC 427 ], the Supreme Court also held that after filing a civil suit, it is not open to the parties to initiate proceedings under Section 145 of the Code :- ''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. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceeding 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 dependency 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. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed. We accordingly allow the appeal and quash the order of the learned Magistrate by which the proceeding under Section 145 of the Code has been initiated and the property in dispute has been attached. We leave it open to either party to move the appellate judge in the civil litigation for appropriate interim orders, if so advised, in the event of dispute relating to possession.'' 37. In Prakash Chand Sachdeva Vs. State [ 1994 (1) SCC 471 ], the Supreme Court held that if the party asserting possession or title moves a civil court, then normally, that party is precluded from moving the Executive Magistrate under Section 145 of the Code. In Prakash Chand Sachdeva Vs. State [ 1994 (1) SCC 471 ], the Supreme Court held that if the party asserting possession or title moves a civil court, then normally, that party is precluded from moving the Executive Magistrate under Section 145 of the Code. It was held as follows:- ''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 Vs. State of U.P. 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'. The normal rule is as stated by the Court in Puri 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. When claim or title are not in dispute and the parties on their own showing are co-owners and there is no partition one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. Where the dispute is not on the right to possession but on the question of possession the Magistrate is empowered to take cognizance under Section 145 Cr.P.C.'' 38. In Amresh Tiwari Vs. Lalta Prasad Dubey { 2000 (4) SCC 440 }, the Supreme court once again considered Ram Sumer Puri Mahant and observed as under:- ''We are unable to accept the submission that the principles laid down in Ram Sumer's 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 Sumer's 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. In our view Ram Sumer's 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.'' ''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.'' 39. Even in its subsequent decision in Mahar Jahan Vs. State of Delhi { 2004 (13) SCC 421 }, the Supreme Court made a similar observation, which is as follows:- "4. It is not disputed by the learned counsel for the parties that this very property, which is the subject-matter of these criminal proceedings, is also the subject-matter of the civil suit pending in the civil court. The question as to possession over the property or entitlement to possession would be determined by the civil court. The criminal proceedings have remained pending for about a decade. We do not find any propriety behind allowing these proceedings to continue in view of the parties having already approached the civil court. Whichever way proceedings under Section 145 Cr.P.C., may terminate, the order of the criminal court would always be subject to decision by the civil court. In as much as the parties are already before the civil court, we deem it proper to let the civil suit be decided and therein appropriate interim order be passed taking care of the grievances of the parties by making such arrangement as may remain in operation during the hearing of the civil suit." 7. In as much as the parties are already before the civil court, we deem it proper to let the civil suit be decided and therein appropriate interim order be passed taking care of the grievances of the parties by making such arrangement as may remain in operation during the hearing of the civil suit." 7. In the present case, both the parties have already approached the Civil Court and they could not obtain any interim order. As per the law laid down by the Hon’ble Supreme Court, once the matter is pending before the Civil Court, parallel proceedings cannot be conducted by the Executive Magistrate. The Hon’ble Supreme Court as well as this Court time and again reiterated the view that when the civil dispute is pending regarding title or possession before the Civil Court, the Executive Magistrate cannot interfere with the same. Even as per the decision of the Full Bench of this Court, parallel proceedings cannot be conducted with the Executive Magistrate, when the matter is pending before the Civil Court. 8. In the light of the above facts, this Court finds that the first respondent without applying her mind and also exceeded her power passed the order and hence, the proceeding in Na.Ka.1224/2020/A1 dated 25.06.2021 is liable to be set aside and accordingly the same is set aside. In fine, the Criminal Revision Case is allowed. Consequently, connected miscellaneous petition is closed.