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Mulla and anr. Vs. Sub-divisional Magistrate and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1985CriLJ654
AppellantMulla and anr.
RespondentSub-divisional Magistrate and anr.
Excerpt:
- - , which to my mind he has failed despite the opportunity available. the learned magistrate having failed to do so was obviously in error of jurisdiction, letting a police officer continue as receiver, when proceedings had continued for nearly seven years on his file. smalkha with all his multifarious duties could not as a receiver be expected to manage the property for well over seven years as a prudent owner would, leaving apart the impact of possible transfers which might have taken place in the interval relating to his office......apprehending breach of peace between the contending parties pertaining to possession of the land in dispute, the s.d.m., panipat vide order dated 16-7-1977 passed a preliminary order under section 145(1), criminal p.c. embodied therein was a consequential order under section 146, criminal p.c., attaching the land in dispute, appointing the s.h.o., smalkha to take charge of the same. undisputably, the attachment is effective since then and none of the parties is in possession of the subject of dispute.2. later on 29-8-1977, the learned s.d.m. passed an order declaring that he was unable to decide as to which party had been in physical possession of the land on the crucial date. thus, a direction was issued to the parties to get their right of possession determined from a competent.....
Judgment:
ORDER

M.M. Punchhi, J.

1. Proceedings Under Section 145, Criminal P.C., are pending in the Court of the Sub-Divisional Magistrate, Panipat. The subject of dispute is a piece of agricultural land owned by one Lakhi who died m the year 1977. His estate became the bone of contention between the two contending parties herein. On the one side, Smt. Phulia, one of the petitioners, claimed the estate as begin the widow of the deceased by means of a Karewa marriage as also on the basis of a registered will. The other petitioner helping her in her claim is her son Mulla from her former husband. On the other side is Jai Ram respondent No. 2 who claimed the estate as a distant collateral of the deceased. Apprehending breach of peace between the contending parties pertaining to possession of the land in dispute, the S.D.M., Panipat vide order dated 16-7-1977 passed a preliminary order Under Section 145(1), Criminal P.C. Embodied therein was a consequential order Under Section 146, Criminal P.C., attaching the land in dispute, appointing the S.H.O., Smalkha to take charge of the same. Undisputably, the attachment is effective since then and none of the parties is in possession of the subject of dispute.

2. Later on 29-8-1977, the learned S.D.M. passed an order declaring that he was unable to decide as to which party had been in physical possession of the land on the crucial date. Thus, a direction was issued to the parties to get their right of possession determined from a competent Court. Sequally it was ordered that the land in dispute shall remain attached till then. Jai Ram respondent No. 2 then filed a revision petition against the aforesaid order which was upset by the Court of Session. The S.D.M. was thus required to decide the matter on the basis of the evidence existing on the file and that too expeditiously. Nothing came out of it. The matter still kept lingering on.

3. On 27-10-1979, Jai Ram respondent No. 2 filed a civil suit claiming the estate. It was specifically averred by him that the land in suit was under attachment in proceedings Under Sections 145/146, Criminal P.C. Claim was laid that if the case Under Section 145, Criminal P.C. was not decided in his favour, then in that case his alternate claim was that he was entitled to possession of suit land on the basis of title. The suit of course was resisted by Smt. Phulia petitioner. The Civil Court inter alia framed an issue 'Whether the plaintiff is the owner of the suit land and is entitled to get possession'. The issue was decided against the plaintiff. Statedly, an appeal has been filed by Jai Ram but seemingly no interim orders have been passed by the appellate Court.

4. The result of the suit being in favour of Smt. Phulia petitioner, date of decision being 27-3-1984, she applied to the S.D.M. to culminate the proceedings in her favour on the basis thereof. Vide the impugned order dated 19-4-1984, the request of the petitioner was turned down. The learned Magistrate observed as follows :

I have carefully heard the learned Counsel for both the parties and have perused the order of the Sub-Judge IInd Class, Panipat dated 26-3-1983. The Civil Court has decided the question of title between the parties and there is no order for delivery of possession Under Section 145, Criminal P.C., which is pending nor it has been held that as to who was in possession of the land in dispute on the crucial date. In view of the above, I direct continuance of the proceedings.

The petitioners being aggrieved from the aforesaid order have approached this Court Under Section 482, Criminal P.C., as according to them the order leads to miscarriage of justice and the continuance of proceedings tend to be in abuse of the process of the Court.

5. The facts afore-narrated are crystal clear. It is to be spelled out as to what is the domain of the learned Magistrate after the decision of the Civil Court. The Civil Court has specifically decided the crucial issue against respondent No. 2 by holding that he is not the owner of the land and obviously not entitled to get possession. In veiw of this clear mandate, Jai Ram respondent No. 2 obviously could not get a direction from the Civil Court requiring the S.D.M. to put him in possession. The Civil Court also could not have ordered the delivery of the possession to the defendants by the very nature of its jurisdiction. The thread had to be picked up by the S.D.M. in accordance with the provisions of Section 146, Criminal P.C., which to my mind he has failed despite the opportunity available.

6. The scope of the inquiry Under Section 145, Criminal P.C., conducted by a Magistrate, is to decide, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, whether any and which of the parties was, at the date of the order made by him under Sub-section (1), in possession of the subject of dispute. But in case he decides that none of the parties was then in such possession as afore-referred to, or if he is unable to decide as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof (emphasis supplied). To put it differently, Under Section 145, Criminal P.C., the Magistrate has an eye to find out which of the contending parties was in possession of the land in dispute on the date of the preliminary order, keeping apart the right of any party to possess the subject of dispute. But when a competent Court has determined the rights of the parties thereto and determined the person entitled to the possession thereof, then obviously the possession has to be released in favour of the party whom a competent Court has determined to be the rightful claimant. Then possession has to follow such determination and attachment has to be lifted in favour of the emerging successful party before the Civil Court. At that stage, the learned Magistrate cannot find fault with the determination of the Civil Court, for the Civil court is not ordained to determine the question as to which party was in possession on the crucial date when the preliminary order was passed by the Magistrate. The Civil Court has to settle the rights and as a consequence thereof, having regard to the pleadings of the parties, order delivery of possession. But here, as has been noticed earlier, Smt. Phulia being not the plaintiff before the Civil Court could not, for obvious reasons, obtain a decree for possession in her favour though she had been held to be the rightful owner of the subject of dispute and logically to possession. Once that right of hers was settled, then the attachment effected by the learned Magistrate had to be lifted in her favour. The learned Magistrate having failed to do so was obviously in error of jurisdiction, letting a police officer continue as receiver, when proceedings had continued for nearly seven years on his file. A police officer put in possession of the subject of dispute as a receiver for such a long time tended to lead to injustice. The under-thought of continuance of proceedings Under Section 145, Criminal P. C, is that there should be consistent likelihood to breach of peace with regard to the subject of dispute. Merely because the subject of dispute is being agitated about in a Civil Court is no ground for continuance of proceedings before a Criminal Court. The entire tenor of the proceedings before the learned Magistrate discloses that in the first place he was not able to determine as to which out of the two parties was in possession of the subject of dispute and even when he received the direction from the Court of Session to decide it, he let it go on without the decision being anywhere near sight This Court cannot help observing that long-durated attachment in such proceedings resulting in the possession of the property being with strangers often leads to undesirable results and malpractices. The S.H.O. Smalkha with all his multifarious duties could not as a receiver be expected to manage the property for well over seven years as a prudent owner would, leaving apart the impact of possible transfers which might have taken place in the interval relating to his office. Thus, I am of the considered opinion that continuance of proceedings Under Section 145, Criminal P.C., and the resultant attachment, in the presence of the Civil Court judgment, is an abuse of the process of the Court. Accordingly, I quash the proceedings and order that the receiver should forthwith deliver possession of the property to Smt. Phulia, petitioner No. 2, who has been held to be the rightful owner thereof and logically to its possession. It is, however, made clear that in case the appellate Court upsets the decision of the trial Court, it can pass consequentially, if obliged to pass, a decree of possession. In that event, nothing stands in the way of Jai Ram, respondent No. 2, to obtain possession by legal process through Court.

7. This petition is accordingly allowed.


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