Parbhati Lal v. Dharampal & Ors.

CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. JP Sharma, Advocate, for the petitioner. Mr. Sidharth Sarup, DAG, Haryana, for respondent No. 6. GURDEV SINGH, J. Heard. The petitioner-Parbhati Lal, has filed this petition under Section 482 of the Criminal Procedure Code (hereinafter referred to as 'the Code'), invoking the inherent jurisdiction of this court, for quashing the order dated

22.5.2008 passed by Additional Sessions Judge, Narnaul, vide which he set aside order dated 26.4.2007 passed by the SDM, Mahindergarh, attaching the land in dispute and appointing the Naib Tehsildar as a Receiver under Section 146 of the Code. The facts, in brief, are that one plot measuring 2 kanals 19 marlas was purchased by Pala Ram-respondent No.4 from Ram Lal in the year 1966 and the possession thereof was delivered to him, who raised the boundary wall. However, the sale deed was not executed on account of good family relationship between vendor and vendee. Respondents No.1 to Crl. Misc. No. M-20460 of 2008 2 4 taking advantage of the fact that the plot was in the name of their father, started removing the firewood lying therein, which resulted in the tension between the parties. On 19.12.2006, the petitioner convened a Panchayat of 11 villages and prominent persons of the village and all of them verified that the disputed plot was of Pala Ram. The matter was reported to the police and both the sides submitted their affidavits in support of their respective claims. After holding an inquiry, a Calandra was presented under Section 145 of the Code by the officer in-charge of the Police Station before the SDM, Mahindegarh. Notices were issued to the parties and were heard. After hearing both the sides, the SDM, came to the conclusion that there was apprehension of the breach of peace and for maintaining law and order attached the plot in dispute and appointed the Naib Tehsildar as Receiver under Section 146 of the Code. The petitioner, who was arrayed alongwith Pala Ram as first party in the said proceedings, preferred a revision against that order, which was allowed, vide aforesaid impugned order and the order passed by the SDM was set aside, on the ground that the parties had already filed a civil suit titled Dharampal etc. versus Parbhati etc., in which an order of interim injunction was passed by the Civil Judge (Jr. Divn.), Mahendergarh. On notice of motion having been issued, respondents No. 2 to 4 put in their appearance and filed a joint reply, in which the factual position was admitted by them. They pleaded that in view of the order passed by the Civil Judge, the proceedings under Sections 145 and 146 of the Code were not sustainable. However, the State of Haryana-respondent No.6 supported the claim of the petitioner. They pleaded in their reply that once the cognizance of the matter had been taken by the revenue court, respondent Crl. Misc. No. M-20460 of 2008 3 No. 1 to 4 were esstopped by their acts and conduct from filing the civil suit, which is an evil design on their part. The apprehension of breach of peace still exists and there is every apprehension that some offence might be committed. The SDM had proceeded with the matter in accordance with the law and there was no ground for the revisional court to set aside the well reasoned order. I have heard learned counsel for the parties. It has been submitted by the learned counsel for the petitioner that once the order has been passed under Section 145 of the Code, the same could not have been bye-passed by respondents No. 1 to 4 by filing a civil suit. This Court is to see whether the apprehension of breach of peace still exists and, if so, the order passed by the SDM cannot be set aside and is required to be restored. Subsequent filing of the civil suit will not effect any valid or legal order passed under Section 145 of the Code. He tried to support his arguments by relying upon the judgment of Hon'ble Supreme Court in Shanti Kumar Panda versus Shakuntla Devi 2004 (2) RCR (Criminal) 881. The submission made by the learned counsel for the petitioner, in view of the well settled law, cannot be sustained. In Bhinka & others vs. Charan Singh, AIR 1959 SC 960, it was held by the Hon'ble Supreme Court that the Magistrate does not purport to decide a party’s title or right to possession of the land but expressly reserves that question to be decided in due course of law. His order is a temporary order irrespective of the rights of the parties, which will have to be agitated and adjudicated upon by a competent forum and in the manner provided by law. Further in Shanti Kumar Panda's case (supra), the Hon'ble Supreme Court held as under:- Crl. Misc. No. M-20460 of 2008 4 “The order of the magistrate under Section 145/146 of the Code is not only an order passed by Criminal Court but is also one based on summary enquiry. The competent Court in any subsequent proceedings is free to arrive at its own findings based on the evidence adduced before it on all the issues arising for decision before it. At the stage of judgment by Civil Court the order of the magistrate shall have almost no relevance except for the purpose of showing that an enquiry held by the magistrate had resulted into the given declaration being made on a particular date. The competent Court would be free to record its own findings based on the material before it even on the question of possession which may be inconsistent with or contrary to the findings arrived at by the magistrate.” Similar matter came up for consideration before Andhra Pradesh High Court in Mohd. Shafiuddin General Secretary, Managing Committee, Masjid Asar-e Shareef Rahmania, Tallagadda Hyderabad and another versus State of A.P and others 2007 (1) RCR (Criminal) 430. In that case, proceedings were initiated under Section 145 of the Code by the Executive Magistrate. Subsequent to those proceedings, one of the parties to the dispute filed a civil suit seeking possession and declaration of title. It was held therein that the jurisdiction of the Executive Magistrate get excluded the moment the civil proceedings are initiated. In this case also proceedings were initiated in the Civil Court. Therefore, the revisional court did not commit any such illegality while accepting the revision filed against the order of the SDM and seting aside that order on the ground that the matter had been pending before the civil court in which the order of Crl. Misc. No. M-20460 of 2008 5 interim injunction was also passed in respect of the possession of the property in dispute. There is no merit in the petition and the same is dismissed accordingly. July 29, 2010 (GURDEV SINGH ) JUDGE