Ramsarup v. Sumer Singh & Anr.

Present : Mr. Surinder Lamba, Advocate for the petitioner. Mr. N.S. Shekhawat, Advocate, for respondent No.1. Mr. Satyavir Singh Yadav, DAG, Haryana. SABINA, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure for quashing of the order dated 6.12.2006 (Annexure P-1) passed by learned Sub-Divisional Magistrate, Mahendergarh as well as judgment dated 3.1.2008 (Annexure P-3) passed by learned Additional Sessions Judge, Narnaul. Learned counsel for the petitioner has submitted that the petitioner had purchased land measuring 22 kanal bearing No.109//2,3,8,9 situated in the revenue estate of village Dalanwas, Tehsil and District Mahendergarh vide registered sale deed No.582 dated

31.5.2006 from Jaipal. Jaipal had purchased the said land from co-owners Crl. Misc. No. M- 718 of 2008 (O&M) 2 Dharam Chand, Satya Pal, Satya Narian and Ranbir sons of Jagan vide sale deed No.777 dated 3.7.2000. Possession of the land was delivered to the petitioner at the time of execution of the sale deed in his favour. None of the co-owners/co-sharers have ever disputed the possession of the petitioner over the land in dispute. Proceedings under Section 145 Cr.P.C. were initiated. The learned Magistrate had erred in holding that respondent No.1 was in possession of the suit land. Learned counsel for respondent No.1, on the other hand, has submitted that respondent No.1 was found to be in possession of the suit land and hence proceedings under Section 145 Cr.P.C. were dropped by the Magistrate. Learned counsel for respondent No.1 has placed reliance in the case of M.P. Peter vs . State of Kerala & others, 2009(3) RCR (Criminal) 459 , wherein it was held as under :- “(3) A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceedings under Sections 145/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and wait before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of the Magistrate is only one out of several pieces of evidence. (4) The court will be loath to issue an order of interim injunction or to order an interim arrangement inconsistent with the one made by the Executive Magistrate. However, to say so is merely stating a rule of caution or restraint, on exercise of discretion by Crl. Misc. No. M- 718 of 2008 (O&M) 3 court, dictated by prudence and regard for the urgent./emergent executive orders made within jurisdiction by their makers; and certainly not a tab on the power of court. The court does have jurisdiction to make an interim order including an order of ad interim injunction inconsistent with the order of the Executive Magistrate. The jurisdiction is there but the same shall be exercised not as a rule but as an exception. Even at the stage of passing an ad interim order the party unsuccessful before the Executive Magistrate may on material placed before the court succeed in making out a strong prima facie case demonstrating the findings of the Executive Magistrate to be without jurisdiction, palpably wrong or self-in-consistent in which or the like cases the court may, after recording its reasons and satisfaction, make an order inconsistent with, or in departure from, the one made by the Executive Magistrate. The order of the court-final or interlocutory, would have the effect of declaring one of the parties entitled to possession and evicting therefrom the party successful before the Executive Magistrate within the meaning of sub-section (6) of Section 145.” Learned Magistrate in the impugned order has held as under :- “After hearing the arguments of counsel for both the parties and after perusing the file, I am agree with the arguments of counsel for the 2nd party that previous proceedings u/s 145 Cr.P.C. which were dismissed as withdrawn, was between these parties and at that time, Shri O.P. Yadav, Naib Tehsildar has submitted his report as local Commissioner that Kharif crop 2006 over killa Crl. Misc. No. M- 718 of 2008 (O&M) 4 No.109//2,3,8min,9min has been done by by Sumer Singh, Balbir Singh, Surender Singh sons of Subhram residents of Dalanwas as co-sharer. This fact is dully corroborated by the Sarpanch, Gram Panchayat Dalanwas in its writing dated 12.7.2006, as per which possession of Sumer Singh etc. 2nd party is proved. The ld. counsel for the 2nd party cited the judgment of Hon'ble Supreme Court of India reported as Judicial Reports (Criminal) 002(2) Page 407 and Judicial Reports (Criminal) 2000(3) Page 259 which are fully applicable to the facts of the present case, in which the court is required to see that on the day of passing the preliminary order or two month prior to it, who was in possession. From the evidence brought on record, possession of Sumer Singh etc. is proved. Therefore, prior to two months of passing the preliminary order, Sumer Singh etc. 2nd party was in possession over the disputed land. Therefore, the possession of Sumer Singh etc. 2nd party is declared over the disputed land and the 1st party is directed that he should not interfere in the possession of the second party in any manner.” Learned Additional Sessions Judge while dismissing the revision petition filed by the petitioner has held as under :- “Ld. Trial Magistrate while observing that parties are joint owners in possession as co-sharers declined to proceed u/s 145 Cr.P.C. The order under challenge is reasoned and speaking and as per law and record. Revisionist court has very limited jurisdiction and can interfere only if order under revision is patently wrong, illegal and suffers from impropriety. But the Crl. Misc. No. M- 718 of 2008 (O&M) 5 order under challenge is reasoned, speaking, as per law and record. Counsel for the revisionist has failed to point out any illegality or infirmity in the order under challenge which requires interference. So, there is no merit in the revision. The same fails and is hereby dismissed. Lower court file be sent back with a copy of this order. The file of revision petition be consigned to the record room.” The reasons given by the courts below while passing of the impugned orders are sound reasons. The Magistrate on the basis of the record held that respondent No.1 was in possession of the said land and hence restrained the petitioner from interfering in his possession. There is nothing on record to suggest that respondent No.1 was not in possession of the suit land. In these circumstances, no ground for interference is made out. Dismissed. December 8, 2010 Anand (SABINA) JUDGE