Delhi District Court
K. K. Singhal vs State (Govt. Of Nct Of Delhi) on 17 January, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS
JUDGE-02(NE), KARKARDOOMA COURTS, DELHI.
CR No. 23/2021
PS : Sonia Vihar
K. K. Singhal
S/o Sh. Ghasi Ram Singhal
R/o H. N. 811, Sector-15,
Faridabad, Haryana. ...Revisionist
Versus
1. State (Govt. of NCT of Delhi)
Through SDM, Karawal Nagar,
Delhi.
2. Sunder Lal Gupta
Through his LRs:
1. Smt. Kanta Devi (Wife)
2. Prahlad Kumar Singhal (Son)
3. Gulshan Singhal (Son)
4. Krishna Garg (Daughter)
5. Sapna Taya (Daughter)
All R/o H. No. 88A, DDA Flats,
Shastri Park, Delhi. ...Respondents
Date of assignment : 21.08.2021
Date of Arguments : 18.12.2021
Date of Pronouncement : 17.01.2022
CR No. 23/2021 K. K. Singhal Vs. State & Anr. 1/19
JUDGMENT :
1. Vide this judgment I shall decide a Criminal Revision Petition filed by the Revisionist against the order dated 06/08/2021 passed by Ld. SDM, Karawal Nagar, Delhi, under Section 145 Cr.PC, in a case titled State v. K.K. Singhal & Ors.
2. Arguments of both parties heard. Written Submissions and Trial Court record perused.
3. Ld. Counsel for Revisionist has submitted that the Revisionist purchased a land measuring 1200 Sq. Yards in the name of his wife Smt. Sita Singhal vide sale deed dated 12/06/1989 and came into possession of the said land and also surrounded it by boundary walls. It is further argued that deceased Respondent No.2 Sunder Lal Gupta also purchased a land from the same owner namely Ravinder Kumar Jain and claimed himself to be an owner and in possession of part of land measuring 144 yards purchased against a sale deed. It is further argued that deceased Respondent No.2 filed a Civil Suit for Permanent Injunction vide Civil Suit No. 296/2009 to protect his possession over the said land against one Lalu Prasad Shukla and present Revisionist with his wife, but the said Civil Suit was dismissed by the Court of the then Ld. Civil Judge, Sh. G.N. Panday vide Judgement dated 06/10/2009. It is further argued that deceased Respondent No.2 did not challenge the above said judgment/order before any Higher Court and the said judgment has attained finality that deceased Respondent No.2 was not in possession of the land in dispute.
4. Ld. Counsel for the Revisionist has further argued that deceased Respondent No.2 also tried to grab the land of Lalu Prasad Shukla by making a false complaint of trespass against him and got lodged a DD No.8A dated 27/10/2009 which also led to the filing of a Kalandara u/s 145 CrPC regarding land in dispute before the then Ld. SDM, Seelam Pur. It is further argued that deceased Respondent No.2 did not disclose CR No. 23/2021 K. K. Singhal Vs. State & Anr. 2/19 the factum of filing as well as dismissal of the Civil Suit against the opposite party as well as Revisionist herein and his wife, but still the then Ld. SDM not only entertained the dispute u/s 145 CrPC. but also concluded the possession of the Second Party therein i.e. Lalu Prasad Shukla over the dispute property and restrained the deceased Respondent No.2 from dispossessing him without following the due process of law.
5. Ld. Counsel for the Revisionist has further argued that after his defeat in earlier proceedings under section 145 of CrPC, deceased Respondent No.2 again initiated second round of proceedings u/s 145 of CrPC vide DD No.40B dated 17/10/2014 and this time Ld. SDM again conducted the full trial of the proceedings u/s 145 of CrPC and now concluded in favor of LR's of deceased Respondent No.2 thereby stating that the property in dispute falls in Khasra No. 186, whereas property of Revisionist falls in Khasra No. 191 and LR's of deceased Respondent No.2 were found in possession of dispute land. Ld. Counsel for Revisionist has further argued that adjudication of possession of disputed property viz-a-viz ascertainment of Khasra Number amounts to adjudication of title of both parties qua the disputed property which was not supposed to be done by Ld. SDM u/s 145 CrPC. being purely a civil dispute, due to this order is erroneous in law. It is further argued that the Ld. SDM has failed to understand that it was not merely a dispute of Khasra Numbers of the land in dispute but was also a dispute of title as well as possession of both parties over the disputed property which could have not been decided by Ld. SDM and Ld. SDM has exceeded his jurisdiction by passing impugned order, which is liable to be set aside.
6. On the other hand, Ld. APP for State has opposed this Revision Petition thereby arguing that the order passed by Ld. SDM is not bearing any illegality or infirmity in law and there was a dispute of Khasra Numbers of the land of between the parties which has been sorted out by this order, due to this order cannot be considered illegal. It is further argued that the possession of the deceased Respondent No.2 over the disputed land has been protected by Ld. SDM according to Khasra Number of the CR No. 23/2021 K. K. Singhal Vs. State & Anr. 3/19 land mentioned in his sale deed, whereas Khasra Number of land of the wife of Revisionist was different due to she was not found in possession of disputed land. It is further argued that the Revisionist and his wife should file a Civil Suit to prove their title as well as possession over the disputed land, but this Revision Petition is not maintainable and is liable to be dismissed.
7. Contrary to it, Ld. Counsel for LR's of Respondent No.2 has strongly opposed this Revision Petition on the ground that the impugned order passed by Ld. SDM is legal as well as valid as there was a dispute of Khasra Numbers of both properties regarding land in dispute and Ld. SDM was well within his rights to adjudicate / decide this dispute of Khasra Numbers being Revenue Authority and also to resolve the actual dispute of possession of the parties over dispute land, which was not against law. It is further argued that the land of the wife of this Revisionist falls in a separate Khasra No. 191 min, whereas the land of the Respondent falls in Khasra No. 186, due to it was not any dispute between the parties herein and no prejudice has caused to Revisionist or his wife by this order, due to impugned order is liable to be affirmed. It is further argued that the present dispute was well covered by the provisions of Section 145 of CrPC, whereas dismissal of Civil Suit qua this property was on technical ground of non-payment of court fees to seek the relief of Declaration of Title in that suit and the said dismissal was not an impediment to Ld. SDM to adjudicate the criminal proceedings pending before him. It is further argued that the earlier dispute adjudicated between the parties did not settle the ownership dispute of the land in dispute and had no bearings on the merit of the subsequent litigation before Ld. SDM, due to Ld. SDM rightly decided the proceedings u/s 145 of CrPC in favour of LRs of deceased Respondent No.2. It is further argued that a property dispute between two parties always lead to a breach of public peace in society due to order passed by Ld. SDM is liable to be affirmed.
CR No. 23/2021 K. K. Singhal Vs. State & Anr. 4/19
8. Ld. Counsel for the Respondent No.2 has relied following judgments to support of his arguments as under:
1. Jhunamal alias Devandas v. State of Madhya Pradesh and Others, AIR 1988 SC 1973.
2. Shanti Kumar Panda v. Shakuntala Devi, (2004) 1 SCC 438
3. Bhinka v. Charan Singh, 1959 Supp (2) SCR 798 : AIR 1959 SC 960
4. Smt. Usha Rani Sood v. Bhola Ram and Others CrMMO No. 80 of 2018 dated 24/09/2018 (HP).
9. I have heard the arguments and perused the record. Proceedings u/s 145 Cr.PC were initiated on the basis of a Kalandra lodged vide DD No. 40B dated 17.10.2014 by which Ld. SDM has adjudicated a land dispute between the parties herein. As such, possession of the dispute land has been decided in favor of LR's of the deceased Respondent No.2 and possession has also been protected against dispossession without due process of law. This order has been challenged before this court by the way of Revision Petition. However, before proceeding further it is necessary to go through the background of this litigation as under;
i). Firstly, deceased Sunder Lal Gupta/ Respondent No.2 filed a Suit for Permanent Injunction vide Civil Suit No 296/2009 titled Sunder Lal Gupta v. Lalu Prasad Shukla & Ors to protect his possession over the disputed land. In the said Civil Suit, Sunder Lal Gupta (now deceased Respondent No.2) claimed himself to be the owner and in possession of a plot measuring 1000 Sq Yards arising out of Khasra No. 186 falling in the Revenue Estate of Bihari Pur, Shahdara, Delhi, purchased vide sale deed dated 19/07/1989. He also claimed that the above said property was divided into two plots measuring 144 Sq yards and 623 Sq yards respectively by erecting a 25 Ft. wide Road over the plot. However, the above said Civil Suit was dismissed by the then Ld. Civil Judge vide Judgment dated 06/10/2009 thereby observing that "there is nothing on record to come to the conclusion that the plaintiff is the owner in possession of the suit property." Even two site plans of the property in dispute were also not found correct.
CR No. 23/2021 K. K. Singhal Vs. State & Anr. 5/19
ii). After dismissal of the above said Civil Suit, deceased Sunder Lal Gupta /
Respondent No.2 initiated another round of litigation regarding the same property by the way of lodging a Kalandra u/s 145 CrPC lodged vide DD No. 8A and the said Kalandra was decided vide order Ref. Case No. SDM/S.Pur/Kalandra- 2009/2011/1789-91 dated 18/04/2011. This Kalandra was contested by deceased Sunder Lal Gupta against one Lalu Prasad Shukla, who was Defendant No.1 in the Civil Suit No 296/2009 titled Sunder Lal Gupta v. Lalu Prasad Shukla & Ors., and Kalandara was also decided against deceased Respondent No.2 Sunder Lal Gupta with the observation that "it appears that he was never in possession of the disputed plot. Moreover, he never disclosed the factum of civil suit case in his statement before the police which shows his malafide intention. On the other hand, Party No.2 (Lalu Prasad Shukla) has enclosed documentary evidence of installation of hand pump of construction boundary wall, in July 2009, in the dispute plot. Thus perusal of the material placed on record, the Kalandara and the documents produced by both parties, it is clear that at the time of dispute as well as within two months prior to the dispute, the suit property was under the possession of Party No.2 I.e. Lalu Prasad Shukla and therefore directed not to be dispossessed without due process of law. SHO PS Sonia Vihar was directed to make ensure the compliance of order in the interest of peace."
iii). Further, the above said order of Ld. SDM was challenged before the Court of the than Ld. ASJ, but the said Revision Petition was dismissed vide order dated 27/07/3012 and the findings of the Ld. SDM were affirmed. The above said order of the then Ld. ASJ stated to be challenged before the Hon'ble High Court, but copy of any such order of the Higher Court has not been placed on record.
iv). After the disposal of earlier Kalandara against the deceased Respondent No.2, present Kalandra u/s 145 of CrPC was lodged by the police in pursuance of a DD No.40B dated 17/10/2014 regarding the same property in dispute. This time the parties CR No. 23/2021 K. K. Singhal Vs. State & Anr. 6/19 to this Kalandra are revisionist Krishan Kumar Singhal and Respondent No.2 deceased Sunder Lal Gupta. Initially, DD No.18A was lodged which was followed by the statement of deceased Sunder Lal Gupta, who again made the same claim to be the owner and in possession of land measuring 1000 Sq yards arising out of Khasra No. 186, Village Biharipur, Delhi. During the pendency of this Kalandar, Sunder Lal Gupta expired and his LRs were substituted. However, Kalandara proceedings are decided in favour of LR's vide impugned order R.No./SDM/KN/U/s 145CrPC/1677- 86 dated 06/08/2021 with the observation that the disputed plot falls in Khasra No. 186, village Bihjaripur, Shahdara, Delhi and was under the possession of party no.2 i.e. deceased respondent No.2, who shall not be dispossessed without due process of law.
10. After going through the back ground of litigations between the parties, this Revision Petition has to be considered. Perusal of the sale deeds of both parties would show that a land measuring 1000 Square Yards, arising out of Khasra No. 186, village Biharipur, Shahdara, Delhi, was purchased by Late Sh. Sunder Lal Gupta/Respondent No.2 vide sale deed dated 19/07/1989, whereas land measuring 1200 Sq yards, arising out of Khasra No. 191 min, was purchased by Smt. Sita Singhal vide sale deed dated 12/06/1989. Even both parties were also given their separate possession of respective lands, but still multiple rounds of litigation has been contested regarding this land, but every time it has been decided in favour of a new possessor, irrespective of the fact that land was a single plot. As such, it was a dispute of possession as well as title of the land in dispute which has been decided by Ld. SDM and has now been challenged.
11. Before proceeding further to decide this dispute, it is necessary to go through the relevant provision u/s 145 and 146 of CrPC as under: -
145. Procedure where dispute concerning land or water is likely to cause breach of peace.
CR No. 23/2021 K. K. Singhal Vs. State & Anr. 7/19 (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section, the expression" land or water"
includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute, (4) The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide 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: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1).
(5) Nothing in this section' shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall CR No. 23/2021 K. K. Singhal Vs. State & Anr. 8/19 cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final.
(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub- section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub- section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b) The order made under this sub- section shall be served and published in the manner laid down in sub- section (3).
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of. such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale- proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.
CR No. 23/2021 K. K. Singhal Vs. State & Anr. 9/19
146. Power to attach subject of dispute and to appoint receiver. (1) If the Magistrate at any time after making the order under sub-
section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself 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: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908 );
Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate-
(a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him;
(b) may make such other incidental or consequential orders as may be just.
12. Both the above said sections have been defined by the Hon'ble Supreme Court in case titled Mathuralal v. Bhanwarlal, (1979) 4 SCC 665 as under: -
4. Quite obviously, Sections 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries. If Section 146 is torn out of its setting and read independently of Section 145, it is capable of being construed to mean that once an attachment is effected in any of the three CR No. 23/2021 K. K. Singhal Vs. State & Anr. 10/19 situations mentioned therein, the dispute can only be resolved by a competent court and not by the Magistrate effecting the attachment. But Section 146 cannot be so separated from Section 145. It can only be read in the context of Section 145. Contextual construction must surely prevail over isolationist construction. Otherwise, it may mislead. That is one of the first principles of construction. Let us therefore look at Section 145 and consider Section 146 in that context. Section 145 contemplates, first, the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists concerning any land or water or their boundaries, and, next, the issuance of an order, known to lawyers practising in the criminal courts as a preliminary order, stating the grounds of his satisfaction and requiring the parties concerned to attend his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. A preliminary order is considered so basic to a proceeding under Section 145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Sections 145 and 146. In fact, the first of the situations in which an attachment may be effected under Section 146 of the 1973 Code has to be "at any time after making the order under sub-section (1) of Section 145" while the other two situations have, necessarily, to be at the final stage of the proceeding initiated by the preliminary order. Now, the preliminary order is required to enjoin the parties not only to appear before the Magistrate on a specified date but also to put in their written statements. Sub-section (3) of Section t45 prescribes the mode of service of the preliminary order on the parties. Sub-section (4) casts a duty on the Magistrate to peruse the written statements of the parties, to receive the evidence adduced by them, to take further evidence if necessary and, if possible, to decide which of the parties was in possession on the date of the preliminary order. If the Magistrate decides that one of the parties was in possession he is to make a final order in the manner provided by sub-section (6).
Provision for the two situations where the Magistrate is unable to decide which of the parties was in possession or where he is of the view that neither of them was in possession is made in Section 146 under which he may attach the subject of dispute until the determination of the rights of CR No. 23/2021 K. K. Singhal Vs. State & Anr. 11/19 parties by a competent court. The scheme of Sections 145 and 146 is that the Magistrate, on being satisfied about the existence of a dispute likely to cause a breach of the peace, issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements. Then he proceeds to peruse the statements, to receive and to take evidence and to decide which of the parties was in possession on the date of the preliminary order. On the other hand if he is unable to decide who was in such possession or if he is of the view that none of the parties was in such possession he may say so. If he decides that one of the parties was in possession, he declares the possession of such party. In the other two situations he attaches the property. Thus a proceeding begun with a preliminary order must be followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders. There is no half way house, there is no question of stopping in the middle and leaving the parties to go to the civil court. Proceeding may however be stopped at any time if one or other of the parties satisfies the Magistrate that there has never been or there is no longer any dispute likely to cause a breach of the peace. If there is no dispute likely to cause a breach of the peace, the foundation for the jurisdiction of the Magistrate disappears. The Magistrate then cancels the preliminary order. This is provided by Section 145 sub-section (5). Except for the reason that there is no dispute likely to cause a breach of the peace and as provided by Section 145(5), a proceeding initiated by a preliminary order under Section 145(1) must run its full course. Now, in a case of emergency, a Magistrate may attach the property, at any time after making the preliminary order. This is the first of the situations provided in Section 146(1) in which an attachment may be effected. There is no express stipulation in Section 146 that the jurisdiction of the Magistrate ends with the attachment. Nor is it implied. Far from it. The obligation to proceed with the enquiry as prescribed by Section 145 sub-section (4) is against any such implication. Suppose a Magistrate draws up a preliminary order under Section 145(1) and immediately follows it up with an attachment under Section 146(1), the whole exercise of stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements becomes futile if he is to have no further jurisdiction in the matter. And CR No. 23/2021 K. K. Singhal Vs. State & Anr. 12/19 yet he cannot make an order of attachment under Section 146(1) on the ground of emergency without first making a preliminary order in the manner prescribed by Section 145(1). There is no reason why we should adopt a construction which will lead to such inevitable contradictions. We mentioned a little earlier that the only provision for stopping the proceeding and cancelling the preliminary order is to be found in Section 145(5) and it can only be on the ground that there is no longer any dispute likely to cause a breach of the peace. An emergency is the basis of attachment under the first limb of Section 146(1) and if there is an emergency, none can say that there is no dispute likely to cause a breach of the peace.
13. Further, it has been held by the Hon'ble Supreme Court of India in case titled Ashok Kumar v. State Uttakhand & Ors, 2013 (1) RCR (Criminal) 961 that;
Para 12. The above order would indicate that the SDM has, in our view, wrongly invoked the powers under Section 146 (1) Cr.PC. Under Section 146 (1) Cr.PC, a Magistrate can pass an order of attachment of the subject of dispute if it be a case of emergency, or if he decides that none of the parties was in such possession, or he cannot decide as to which of them was in possession. Sections 145 and 146 Cr. PC together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace and Section 146 cannot be separated from Section 145 Cr.PC. It can only be read in context of Section 145 Cr.PC. If after the enquiry under Section 145 of the Code, the Magistrate is of the opinion that none of the parties was in actual possession of the subject of dispute at the time of order passed under Section 145 (1) or is unable to decide which of the parties was in such possession, he may attach the subject of dispute, until a competent court has determined the right of the parties thereto with regard to the person entitled to possession thereof.
Para 13. The ingredients necessary for passing an order under Section 145 (1) of the Code would not automatically attract for the attachment of the property. Under Section 146, a Magistrate has to satisfy himself as to whether emergency exists before he passes an order of attachment. A case of emergency, as contemplated under Section 146 of the Code, has to be distinguished from a mere case of apprehension of breach of the peace. The Magistrate, before passing an order under Section 146, must explain the circumstances why he thinks it to be a case of emergency. In other words, to infer a situation of emergency, there must be a material on record before Magistrate when the submission of the parties filed, CR No. 23/2021 K. K. Singhal Vs. State & Anr. 13/19 documents produced or evidence adduced.
In view of the above legal proposition, it is clear that the proceedings under Section 145 and 146 of Cr.PC may not continue in a mutual dispute of ownership between two persons claiming themselves to be the owners, but if such dispute is going to disturb the public peace of the area, only then it may be adjudicated to the extent of protection of possession of a person over the land, irrespective of title of the land which is to be adjudicated by the Court of Competent Jurisdiction. Last possession or possession two months prior to the dispossession is the only criteria to adjudicate the proceedings under section 145 /146 CrPC and nothing beyond it.
14. However, a dispute of title of a land is not to be considered by the court of Ld. SDM in any manner as held by case titled Bhinka v. Charan Singh, 1959 Supp (2) SCR 798 as under;
16. This leads us to the consideration of the legal effect of the order made by the Magistrate under Section 145 of the Code of Criminal Procedure. Under Section 145(6) of the Code, a Magistrate is authorized to issue an order declaring a party to be entitled to possession of a land until evicted therefrom in due course of law. 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. The foundation of his jurisdiction is on apprehension of the breach of the peace, and, with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. The life of the said order is co-terminous with the passing of a decree by a civil court and the moment a civil court makes an order of eviction, it displaces the order of the criminal court. The Privy Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani [(1901) LR 29 IA 24, 33] tersely states the effect of orders under Section 145 of the Code of Criminal Procedure thus:
"These orders are merely police orders made to prevent breaches of the peace. They decide no question of title...".
We, therefore, hold that a provisional order of a Magistrate in regard to possession irrespective of the rights of the parties cannot enable a person to resist the suit under Section 180 of the Act.
CR No. 23/2021 K. K. Singhal Vs. State & Anr. 14/19 As such, Ld. SDM is not supposed to consider the title of the parties regarding any land dispute and the purpose of protection of the possession is only to maintain the public peace and also to uphold the process of law. In fact, civil courts have competency and dominancy to adjudicate the title of the parties regarding a disputed land and criminal court has nothing to do with it.
15. However, in the present case proceedings u/s 145 Cr.PC have been contested twice in the years 2011 and 2021 respectively regarding same property but every time litigation has been ended in favor of a separate and new party, but deceased Sunder Lal Gupta was main contestant of both litigation. Smt. Sita Singhal was the owner of disputed land with a different Khasra Number and ought to be a contesting party before Ld. SDM, but she was never called or impleaded to contest any litigation for the reason best known to Ld. SDM. It is pertinent to mention here that a police report dated 15/06/2009 regarding the ownership and possession of Smt. Sita Devi over the same land was already part of record before Ld. SDM and even a conditional interim order u/s 81 of DLR, Act dated 11/08/2010 was also passed against her in case titled Goan Sabha Biharipur v. Smt. Sita Singhal, but still she was not called upon to defend litigation against her land. Contrary to it, her husband Mr. K.K. Singhal has been allowed not only to claim himself to be owner of the dispute land against documentary evidence but has also contested every litigation without any title or possession in disputed land. Now he has already suffered impugned order to maintain this revision.
16. Admittedly, parties to this litigation u/s 145 of CrPC were also parties to the Civil Suit filed by deceased Respondent No.2 but was dismissed by Ld. Civil Judge with findings that deceased Respondent No.2 could not establish his ownership as well as possession over the suit property pertaining to Khasra No.186 and such findings are still intact. However, deceased Sunder Lal Gupta still invoked criminal jurisdiction of the court of Ld. SDM twice, but first time he lost against Lalu Prasad Shukla, who was found in possession over same land arising out of Khasra No. 186.
CR No. 23/2021 K. K. Singhal Vs. State & Anr. 15/19 As such, possession of deceased Respondent No.2 could not be established again, whereas possession of Lalu Prasad Shukla was protected by the then Ld. SDM by observing the deceased Sunder Lal Gupta was a land grabber. These findings of the then Ld. SDM were affirmed by the then Ld. ASJ in a revision petition.
17. After passing of the above said order in favor of Lalu Prasad Shukla regarding the same disputed land, Ld. SDM has again adjudicated the dispute of similar land but now in favour of deceased Sunder Lal Gupta thereby observing that his land falls in Khasra No. 186, village Biharipur, Delhi and his possession has been protected. As such, Ld. SDM has come to the conclusion of ownership as well as possession of the land on the basis of a report of Halka Patwari. However, the findings of the Ld. SDM are strange on many aspects. It is beyond explanation as to how Ld. SDM came to this conclusion just on the basis of report of Halka Patwari that deceased Respondent No.2 was in possession of the disputed land, whereas deceased himself failed to establish his possession over the same land twice during his life time. Besides it, wife of the Revisionist Smt. Sita Singhal was also found in possession of the dispute land by a report dated 15.06.2009 filed by police in a case titled Goan Sabha Biharipur v. Smt. Sita Singhal, in which, a conditional order dated 11/08/2010 u/s 81 of DLR, Act was also passed by the same court, but Ld. SDM failed to consider both facts and decided the proceedings in favor of deceased.
18. Not only the above said material facts have been ignored by the Ld. Trial Court but some material observations of his predecessor in earlier proceedings u/s 145 CrPC has also been ignored passing the impugned order. Ld. Predecessor of Ld. SDM had observed in his earlier order dated 18/04/2011 that the examination of these sale deeds reveal that though the seller is same yet these are two different registered sale deeds dated 19/09/89 and 19/07/89 and the area sold is also different. It is possible that these were two different plots of Khasra No. 186 of village Biharipur. The identity of plot is not clear in any sale deed. It appears to be a case of disputed CR No. 23/2021 K. K. Singhal Vs. State & Anr. 16/19 identity of plot. The declaration of ownership of plot is not the subject matter of this court. Despite this observation in earlier litigation, Ld. SDM proceeded to decide the title as well as possession of the parties over the disputed land as per Khasra Numbers of land owned by both parties, which was not in the spirit of section 145 / 146 of CrPC.
19. Sections 145 and 146 CrPC authorize to Ld. SDM to adjudicate the dispute of possession of any property to protect the public peace and Ld. SDM is also under obligation to write such findings, either in interim or final order, that such protection order was required to protect public peace and maintain the law and order. Similar proposition has laid down by the Hon'ble Supreme Court in case titled Mathuralal v. Bhanwarlal, (1979) 4 SCC 665 and Ashok Kumar v. State Uttakhand & Ors, 2013 (1) RCR (Criminal) 961. However, the impugned order is totally silent about such findings regarding the possibility of any breach of public peace by this land dispute which was purely a personal land dispute between two parties and was beyond the preview of Section 145 & 146 CrPC.
20. Besides it, Ld. SDM was not supposed to go into the title of the parties regarding this disputed land in view of law laid down in Bhinka v. Charan Singh, 1959 Supp (2) SCR 798, but still Ld. SDM has entertained and decided the title of the disputed land on the basis of determination of Khasra Nos. without conducting any inquiry as to how deceased Respondent No.2 came into possession of this disputed land, whereas he failed to prove his possession earlier before the Civil Court and proceedings under section 145 of CrPC. In fact, the impugned order is totally silent as to how Lalu Prasad Shukla, who was earlier in possession, was disposed from the land to come into possession by the deceased and what was new material which compelled the Ld. Trial Court to ignore the two findings of previous courts. As such, all the findings were based upon the determination of Khasra Numbers of land and that too without determination of mode and manner of possession of the parties. Contrary to it, CR No. 23/2021 K. K. Singhal Vs. State & Anr. 17/19 the title of the parties ought to be decided by the Civil Court has been decided by Ld. SDM.
21. Ld. Counsel for the Respondent No.2 has argued that the order of the Ld. Trial Court cannot be set aside in a routine manner being merely a protection order regarding the possession of a disputed land. In support of his arguments Ld. Counsel has relied upon case titled Jhummamal v. State of M.P., (1988) 4 SCC 452, Shanti Kumar Panda v. Shakuntala Devi, (2004) 1 SCC 438 and Bhinka v. Charan Singh, 1959 Supp (2) SCR 798. On the other hand, Ld. Counsel for the revisionist has contradicted that these judgments are not applicable on the facts.
22. It is been held in case titled Jhummamal v. State of MP (supra) that an order under Section 145 CrPC made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the civil court. An order made under Section 145 CrPC deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil court. The unsuccessful party therefore must get relief only in the civil court. He may move the civil court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached. Similar proposition has been laid down by case titled Shanti Kumar Panda v. Shakuntala Devi, (2004) 1 SCC 438 and Bhinka v. Charan Singh, 1959 Supp (2) SCR 798 that decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court but reasoning recorded by the Magistrate or other findings arrived at by him have no relevance and are not admissible in evidence before the competent court and the competent court is not bound by the findings arrived at by the Magistrate. Even judgment titled Smt. Usha Rani Sood v. Bhola Ram and Others CrMMO No. 80 of 2018 dated 24/09/2018 (HP) is also dealing with the same proposition. However, these judgments CR No. 23/2021 K. K. Singhal Vs. State & Anr. 18/19 relied upon by the Ld. Counsel for the Respondent No.2 are not applicable on the facts of this case. No doubt judicial or semi judicial orders ought not to be set aside in routine manner but where the authority has exceeded its jurisdiction to pass such orders, then such orders have to be set aside to stop the miscarriage of justice. In this case, Ld. SDM has committed a jurisdiction error by adjudicating the title of the parties regarding the disputed land and has also ignored the earlier orders against the same deceased Respondent No.2, due to such order has to be set aside.
23. Keeping in view of the facts and circumstance of this case, I am of the considered opinion that the impugned order dated 06.08.2021 passed by Ld. SDM, Karawal Nagar is not sustainable in law as well as facts and the same is hereby set aside. With these observations revision petition is allowed.
24. TCR be sent back to Ld. Trial Court / SDM along-with copy of Judgment. File is consigned to record room.
Announced in open court (Devender Kumar)
today on 17.01.2022 Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi.
CERTIFICATE:-
It is certified that arguments of the abovesaid Revision Petition have been heard during physical hearing whereas judgment has been pronounced through VC in the presence of both parties. Both the parties have been explained the outcome of this revision petition in vernacular and proceedings are correct.
(Devender Kumar)
Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi
17.01.2022
CR No. 23/2021 K. K. Singhal Vs. State & Anr. 19/19