Allahabad High Court
Ganesh Prasad & 5 Others vs State Of U.P. & 4 Others on 27 March, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 05.02.2018 Judgment delivered on 27.03.2018 Court No. - 17 Case :- CRIMINAL REVISION No. - 2686 of 2016 Revisionist :- Ganesh Prasad & 5 Others Opposite Party :- State Of U.P. & 4 Others Counsel for Revisionist :- Arvind Kumar Kushwaha,P.K.Singh Counsel for Opposite Party :- G.A.,Anil Kumar Mishra Hon'ble Dinesh Kumar Singh-I,J.
1. This criminal revision has been preferred against the judgment and order dated 27.6.2016 passed by Sub Divisional Magistrate, Ghorawal, District Sonbhadra in Case No.10 of 2016 (Mahesh Prasad and another vs. Ganesh Prasad and others) under section 146 Cr.P.C. PS Ghorawal, District Sonbhadra whereby Incharge Police Station Ghorawal, District Sonbhadra has been directed to attach the property in dispute and give the same in Supurdagi of an independent person (Leelawatar Tiwari, earlier Gram Pradhan of Mauja Parsauna).
2. The facts, in brief, as culled out from the affidavit, counter affidavit and rejoinder affidavit are as follows:-
3. The opposite party nos. 2 and 3-first party had filed a case no. 10 of 2016 in the court of Sub Divisional Magistrate, Ghorawal, District Sonbhadra by the name of (Mahesh Prasad and another vs Ganesh Prasad and others) under section 145 Cr.P.C. stating that they were co-tenure holder of Araji No.286 area 0.2530 hectares and other Araji total 38 gata area 15.3150 hectares situated in Mauja Parsauna. A pedigree was also given. An allegation was made that the revisionist-second party were trying to take possession over the said land forcibly. The Sub Divisional Magistrate, Ghorawal, District Sonbhadra passed an order on 3.7.2015 calling for report from P.S. Concerned, which was submitted on 20.3.2016 by the police station concerned stating therein that both the parties were making allegations and counter allegations against each other and were trying to have possession of the said land, due to which tension prevailed between two side and that there was a possibility of cognizable offence being committed by the parties. It was further mentioned that the revisionists-second party were trying to take possession of the share in the property of the opposite party nos. 2 and 3-first party forcibly, resultantly the land of the opposite party nos.2 and 3-first party was lying 'Parti'. On 20.2.2016 proceedings were drawn under sections 107 and 114 Cr.P.C. and the police had asked for drawing proceedings under section 146 Cr.P.C. Relying upon the said report, Sub Divisional Magistrate passed a preliminary order under section 145 (1) Cr.P.C. and asked both the parties to submit their replies on 22.4.2016. Notices could be served only upon the revisionist nos. 3 and 6-second party i.e. Ram Ratan and Sheshmani while the remaining revisionists-second party had not been served with a notice. The revisionist-second party had filed a suit before Sub Divisional Magistrate, Ghorawal on 9.2.2015 under section 229-B of the U.P.Z.A. & L.R. Act with a prayer that a declaration be made against the opposite party nos. 2 & 3- first party that they did not have any right in the aforesaid land and their names be scored out. The same Presiding Officer had also passed an interim order directing the parties to maintain status quo on 6.6.2016 on the said application dated 9.2.2015 which also contained a direction that the said land would not be transferred or alienated. The said injunction order is still continuing being extended from time to time, which was evident from the questionnaire sought on different dates. It was surprising that the same Presiding Officer had passed different order for the same dispute between the same parties. The latest khatauni 1423F demonstrates that the revisionist-second party were in possession and were cultivating the crops on the said Araji. A regular civil suit had also been filed by the opposite party nos. 2 and 3-first party with regard to the disputed land with a prayer that a decree of injunction may be passed against the revisionists-second party and not to dispossess them illegally from the said land, which is pending till date, the same being suit no. 306 of 2015, in which no injunction order has been passed till now. The impugned order is illegal, arbitrary and cannot sustain in the eyes of law. The revisionists-second party have contested the election against the Ex.Pradhan to whom Supurdagi had been given, therefore he was equally inimical to them and was facilitating the police as well as Sub Divisional Magistrate to manipulate in favour of the opposite party nos. 2 and 3-first party. The SHO, Ghorawal has submitted a false and frivolous report stating therein that there was an apprehension of breach of peace, which was absolutely hypothetical and was submitted in collusion with the opposite party nos. 2 and 3-first party and also Ex.Pradhan in whose Supurdagi the said land was given. There are various judgments on the point that once the matter is sub-judice before a civil court and injunction order is in force, the proceedings under section 145(1) Cr.P.C. and 146 (1) Cr.P.C. would be an abuse of process of law. At the time of passing the order of Supurdagi dated 27.6.2016, the revisionists-second party had sown their crops of paddy and Makka etc. over the said land. Therefore, in the circumstances, it was expedient in the interest of justice to quash the impugned judgment and order dated 27.6.2016 passed by the Sub Divisional Magistrate, Ghorwal.
4. A counter affidavit has been filed from the side of the opposite party nos. 2 and 3-first party in which it has been stated that it was very strange for the revisionists-second party to deny that notice was not served upon them in respect of proceedings under section 145 (1) Cr.P.C. and 146 (1) Cr.P.C. because they themselves have challenged the order passed in this proceedings before this Court. The revisionists-second party have filed the aforementioned suit only for creating pressure upon the opposite parties-first party. Neither the said suit was registered before the Court of Sub Divisional Magistrate nor were they able to establish that the same was maintainable. The revisionists-second party as well as the opposite party nos. 2 and 3-first party belonged to the same family, predecessor of both of them was one Lallu, thereafter both the parties were bifurcated in two branches which has been mentioned in the application moved under section 145 (1) Cr.P.C by them. Earlier, the village in question came for consolidation operation and during the course of consolidation proceedings, the revisionists-second party filed an objection under section 9-A(2) of the U.P. Consolidation of Holdings Act. Subsequently, a joint compromise was moved by the parties on 24.9.2004 before the said court with regard to determining their shares in the plots in question, falling in khatauni, khata no. 15 (which is subject matter of dispute). In the said proceedings share was determined in the property in dispute between the parties vide order dated 4.5.2005, which has not been challenged before any higher authority, hence the same has attained finality between the parties. Therefore, the suit filed by the revisionists-second party under section 229-B of U.P.Z.A. & L.R. Act was not maintainable in view of bar provided under section 49 of U.P. Consolidation of Holdings Act. The aforesaid suit as well as the said application was said to be filed on 9.2.2015, i.e. after a lapse of more than one year and four months. The said order does not possess any legal authenticity. It was totally misconceived to say that interim order was granted on 6.6.2016 and thereafter, further date was fixed in the month of September, 2016, on that day again the Presiding Officer had put up the question of maintainability from the revisionists-second party but except to seek adjournment nothing had happened in that case and hence the said exparte order was not extended thereafter. A questionnaire was got issued from the office of the said court on 7.3.2017 which indicates that there was no injunction order in force. Pursuant to the order dated 4.5.2005 passed on the basis of compromise between the parties by the consolidation authorities, all the parties including the opposite party nos. 2 and 3-first party were in possession over their respective shares till date. The proceedings under section 145 (1) Cr.P.C. were initiated by the Sub Divisional Magistrate, in which the order was passed on 30.7.2015 and after issuing notice, he invited objections from the revisionists-second party by adducing their evidence. Thereafter, another order was passed on 27.6.2016 under section 146 (1) Cr.P.C. while the alleged interim order dated 6.6.2016 was passed in the proceedings under section 229-B of the U.P.Z.A. & L.R. Act, which would show that the proceedings in the present case were initiated prior in point of time to the order passed in the proceedings under section 229-B of U.P.Z.A. & LR Act. Further it is stressed that neither in regular court suit filed by opposite party nos.2 & 3-first party nor in suit under section 229-B of the U.P.Z.A. & L.R. Act filed by the revisionists-second party was there any stay order in operation at present. Even in civil suit no interim order was granted from the very beginning, as such proceedings initiated by the Sub Divisional Magistrate under section 145 (1) Cr.P.C. were correct and legal. As per the case of revisionist-second party, they had filed the suit under section 229-B of the U.P.Z.A. & L.R. Act when the opposite party nos. 2 and 3-first party were going to transfer the property by way of sale deed, while the revisionists-second party themselves have executed the sale deed which was registered on 31.12.2015 in the office of Sub Registrar, Ghorawal. Therefore, it is apparent that the revisionists-second party have not approached this Court with clean hands.
5. In the rejoinder affidavit filed on 27.8.2017 it is stated that challenging the impugned order would not tantamount to conclude that the notices were served upon the revisionist nos. 1, 2, 4 and 5-second parties. In the suit filed by them, Sub Divisional Magistrate had passed an order to the effect that parties shall maintain status quo and would not transfer or alienate the land in dispute. Further, it is stated that whole proceedings of the consolidation had been quashed vide order dated 19.2.2013 passed by the Director of Consolidation, U.P., on the ground that there were many irregular and illegal orders passed during the consolidation proceedings. In this respect, the order dated 19.8.2011 had been passed by the Consolidation Commissioner, U.P.. No compromise had taken place between the parties during the consolidation proceedings as alleged by the opposite parties-first party. The order dated 4.5.2005 passed by the Consolidation Officer was based on a forged compromise. The consolidation proceedings, in which the said order is alleged to have been passed, has already been quashed by the Director of Consolidation, U.P., Lucknow on this very ground that many irregular and illegal orders had been passed during the consolidation proceedings. Hence, the said order dated 4.5.2005 has no legal effect. Further, it is stated that taking a long time in passing an order does not affect the legal force of the said order. The interim order dated 6.6.2016 was in effect at the time when the impugned order was passed and that the said impugned order had not been vacated by the court concerned till now. The said order had become effective since 6.6.2016. The revisionists-second party had already made an application dated 24.7.2017 in the said suit for extension of stay order dated 6.6.2016 which is still pending in the said proceedings. In accordance with law as laid-down in the case of Vishnu Dutt Sharma and others vs. Regional Joint Director of Education, Agra and others, [2001 (42) ARL 568] it is held that unless the interim order has been vacated by the court, the said order shall be considered to continue. The revisionists-second party are still in possession of the disputed land while the opposite party nos. 2 and 3-first party were never in possession of the said land on the basis of the order dated 4.5.2005. The orders dated 30.6.2015 and 27.6.2016 have been passed in proceedings under section 145 (1) Cr.P.C. and 146 (1) Cr.P.C. respectively without issuing notice to the revisionist nos. 1, 2, 4 and 5-second party, hence the said order would have no effect in the eyes of law. The revisionists-second party have already demonstrated their possessions over the disputed land by producing a copy of khasra of the entire area of the land in dispute and their crop is still standing on the said land. The revisionists-second party executed sale deed dated 31.12.2015 because they were owner and in possession of the land in dispute. Thus, the report dated 20.3.2016 submitted by the Sub Divisional Magistrate was illegal and arbitrary. Further, it is submitted that more than one year had expired from the date of impugned order, so far no incident had taken place in respect of the said land between the parties, hence there was no apprehension of breach of peace. Therefore, the proceedings under section 145 (1) Cr.P.C. and 146 (1) Cr.P.C. need to be dropped.
6. At the very outset, the learned counsel for the opposite party nos. 2 and 3- first party raised objection that the order passed under section 145(1) Cr.P.C. and 146 (1) Cr.P.C. were of interlocutory nature and hence no revision is maintainable against such order. In this regard, reliance has been placed upon the case of Maan Babu Dubey vs. State of U.P. And others 2006 (1) UPCrR 747. The other citation relied upon by him is Revati Raman and others vs. State of U.P., 2007 (1) UPCrR 107 and in both the aforesaid cases it has been held by this Court that the proceedings under section 145 (1) Cr.P.C. and 146 (1) Cr.P.C. are of interlocutory nature hence any order passed under these sections would not be amenable to the revisional court jurisdiction.
7. Against this, learned counsel for the revisionist has placed reliance upon Munna Singh @ Shivaji Singh and others vs. State of U.P. and another, [2011 (9) ADJ 98 (FB)],. It is apparent from the perusal of this judgment that due to there being difference of opinion with regard to maintainability of revision against an order passed under sections 145(1) Cr.P.C. and 146 (1) Cr.P.C, matter came up for consideration by Larger Bench on reference to determine as to "whether the orders passed by the Magistrate under sections 145(1) Cr.P.C. and 146(1) of the Code are interlocutory orders simplicitor and no revision petition under section 397 or 401 of the Code or petition under section 482 of the code is maintainable against the same." The matter was considered by the Full Bench and it was held that no excessive or exhaustive singular test can be framed in a straight jacket formula to determine as to whether an order would be final or interlocutory. The meaning of words have to be understood in the light of the facts of each particular case in relation to the particular purpose for which the word is required to be interpreted. It was expressed that where the parties have already entered into a litigation before the civil court, then the proceedings u/s 145 Cr.P.C. should be avoided. After making deep analysis of the matter, the answer to the question referred was given in the negative and it was held that orders passed under sections 145 (1) and 146 (1) of the code are not in every circumstances interlocutory simplicitor and therefore a revision would be maintainable in the light of the observation made in this judgment depending upon the facts involved in each case. In view of observation made by the Full Bench of this Court, it cannot be held that in the present case, the revision is not maintainable because it has to be seen in the light of the facts of this case as to whether the impugned order is a matter of moment or not which has the effect on rights of the party in possession. In case, the impugned order is found to have effect on the rights of the parties in possession, the order passed under section 145(1) and 146(1) Cr.P.C. could not be held to be an interlocutory order and against such an order the revision would be maintainable.
8. The relevant paragraphs of the above judgment are quoted herein below:
"23. while carving out a distinction between the orders of a final nature and interlocutory nature, the Apex Court in the case of VC Shukla vs State, AIR 1980 SC 962 gave the nomenclature of an "intermediate order" to be between a final order and the initiation of a proceeding which may be affecting the interest of either of the parties, and could not be termed as a pure and simple interlocutory order. This view came to be followed by a learned single Judge of this Court earlier who has made the present reference in the case of Gulab Chand vs State of U.P. 2004 (48) ACC 579 and again by a learned single Judge of this Court in case of Laxmi Kant Dubey vs Smt. Jamuni and others, 1999 (39) ACC 649.
24. In the aforesaid background this Court has therefore to proceed to first give an indication as to meaning of the words final order, interlocutory order and an intermediate or intermediary order and the distinction between them.
25. The term "final order" means a decision finally affecting the rights of the contending parties. It is an issue which goes to the foundation of a trial and can be never questioned if it has been allowed to stand. It would therefore be final. The test of such finality would depend upon the facts of the case indicating termination of proceedings and ultimately affecting the fate of the parties. A final order is one which leaves nothing more to be decided by its own force.
26. The word ''Final' connotes that which comes at the end. It marks the last stage of a process leaving nothing to be looked for or expected. It is something ultimate in nature. It puts to an end to something or in other words, it brings to a close any strife or uncertainty. It is the conclusion of an event, that which comes last. It connotes the finishing of some act and completion of some beginning. It does not allow the inclusion of any thing or something that might be possible thereafter. A decisive stroke that cannot be reversed or altered is final.
27. The word "interlocutory order" as defined in the law lexicon by P. Ramanath Aiyar 1997 Edition, is an order made pending the cause and before a final hearing is concluded on merits. Such an order is made to secure some end and purpose necessary and essential to the progress of the litigation, and generally collateral to the issues formed by the pleadings and not connected with the final judgment. It has been termed as a purely interim or temporary nature of an order which does not decide the important rights or liabilities of the parties.
An interlocutory stage is an intermediate moment before the happening of the main event. It is something during the course of an action in the shape of a pronouncement which is not finally decisive of a dispute. It is provisional but not final touching some incident or emergent question.
28. Then comes the third category of the orders which fall in between. In our opinion it is this aspect which was left out in the decision of Punjab and Haryana High Court in the case of Kartar Singh (supra) which deserves to be adverted to. The words intermediate order as defined in the law lexicon (supra) is an order granted before entry of judgment, made between the commencement of an action and the final pronouncement.
29. The word ''intermedium' means between or in the middle. It is something intermediate in position or an intervening action or performance before the final conclusion. That which is situated or occurring between two things is intermediate. It holds the middle place or degree between two extremes interposed in between.
There is no doubt about what are the final orders and the controversy stands narrowed down to the difference between an interlocutory order and an intermediate/intermediary order.
30. The distinction between the two, interlocutory and intermediary would be that the former does not bring about any consequence of moment and is an aid in the performance of the final act. It does not affect any existing rights finally or to the disadvantage of either extremes. An intermediate order can touch upon the rights of the parties or be an order of moment so as to affect any of the rival parties by its operation. Such an order affecting the rights of a person or tending to militate against either of the parties even at the subordinate stage can be termed as an intermediate or an intermediary order.
31. The invoking of the emergent powers under section 146 (1) Cr. P.C. is dependent upon the satisfaction of the Magistrate that it is a case of emergency and none of the parties are in possession or the Magistrate at that stage unable to decide as to which of the parties was in possession. It is only then that attachment can be resorted to. An emergency is an unforeseen occurrence or a crisis with a pressing necessity which demands immediate action. An emergent situation is one that suddenly comes to notice and is almost unexpected or un-apprehended. It is a situation that requires prompt attention impelling immediate action.
32 . The action to be taken would however be dependent on the satisfaction of a Magistrate recorded under section 145 (1) Cr. P.C. that there exists an apprehension of breach of peace either on the basis of police report or upon other information received. The order of attachment on such a dispute being brought to the notice of the Magistrate therefore is clearly linked with the right of a party to retain lawful possession. The aforesaid ingredients have to exist to allow the Magistrate to exercise his authority within his jurisdiction. Accordingly the assumption of jurisdiction is dependent on the contingency that may arise in a dispute referable to the said provisions and hence what necessarily follows that if there is an exercise for want of jurisdiction or erroneous exercise of jurisdiction, then the order on the given facts of a case may not be a mere interlocutory order. If the exercise of a power and passing of an order is questionable to the extent of touching the rights of the parties or are orders of moment, depending on the peculiar facts of individual cases, then the order in our opinion would be an intermediate nature of an order that can be subjected to a revision under section 397 Cr. P.C.
33. The legislature in its wisdom will be presumed to have curtailed the revisional jurisdiction to the extent as spelt out under sub-section (2) of section 397 Cr. P.C. in order to prevent any delays or unnecessary impediments in proceedings relating to trials under the Criminal Procedure Code. As noticed above, the orders which do not fall within the exact nature of an interlocutory order may therefore not be prohibited from being subjected to a revision in larger public interest. A litigant who is aggrieved by an action which does not involve immediate urgency can always knock the doors of the revisional Court, dependent on the facts of each individual case as explained hereinabove.
34 . We would also like to add that there were divergent views with regard to the jurisdiction of the Magistrate proceeding after attachment under section 146 (1) Cr. P.C. but the said issue came to be resolved by the Apex Court in the case of Mathura Lal vs Bhanwar Lal, 1979 (4) SCC 665.
35. In view of what has been expressed herein above, we find ourselves in respectful agreement with the views expressed by the various courts and this Court to the effect that there is a third category of order which falls in between an interlocutory and final order that does touch upon the rights of the parties and is an order of moment. An order under section 145 (1) followed by an order under section 146 (1), or even passed simultaneously, bring to the forefront the primary question of the assumption of jurisdiction by the Magistrate to proceed in a matter. If the facts of a particular case do not warrant the invoking of such jurisdiction, for example, in cases where civil disputes are pending and orders are operating, then in view of the law laid down by the Apex Court in the decisions referred to herein above following Ram Sumer Puri Mahant's case (supra), an order ignoring such proceedings will have to be curtailed for which a revision would be maintainable under sub-section (1) of section 397 as, such an order, would not be a mere interlocutory order and would touch upon the rights of the parties.
36. We have also come across an unreported judgment of Apex Court in the case of Gyatri and others vs Ranjeet Singh and others, Special Leave to Appeal (Criminal) No. 3584 of 2006 decided on 13/02/2008 where the same view has been reiterated.
37. The difficulty again is that can such a list of illustrations be catalogued so as to confine the revisional jurisdiction in relation to such intermediate orders. Our obvious answer is in the light of what has been said in the case of Mohan Lal's case (supra) by the Apex Court that the determination of such an issue as to whether a revision would be maintainable or not would in turn depend upon the nature of the order and the circumstances in which it came to be passed. Thus it would depend on the facts and circumstances of each separate individual case where the revising authority will have to examine as to whether the Magistrate has proceeded to exercise his judicious discretion well within his jurisdiction or has travelled beyond the same, keeping in view the various shades of litigation in such matters where the Apex Court and this Court has held that an intermediate order, which is not necessarily an interlocutory order, could be subjected to revision. An order not conclusive of the main dispute between the parties, but conclusive of the subordinate matters with which it deals is not a purely interlocutory order even though it may not finally adjudicate the main dispute between the parties. In our opinion therefore a revision would not be barred under sub-section (1) of section 397 of the Code if the orders impugned before the revising authority fall within the tests indicated herein above.
Our answer to the question referred would be therefore in the negative, and we hold that orders passed under sections 145 (1) and 146 (1) of the Code are not in every circumstance, orders simplicitor, and therefore a revision would be maintainable in the light of the observations made in this judgment depending on the facts involved in each case.
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9. In the case at hand the revisionists-second party have claimed to be the owners of the disputed property as well as in possession thereof which is being disputed by the opposite party nos. 2 and 3-first party vehemently on the basis of some compromise having been entered between them before a consolidation court which is being denied by the revisionists-second party. In case, on the basis of evidence on record, the revisionists-second party are found to be owners of the said property, certainly an order attaching their property would be of immense importance which may have adverse impact on the rights of the revisionists-second party and in such a situation, in terms of the law laid-down by the Full Bench in Munna Singh's case (supra) revision would be maintainable and therefore this Court finds in this case that the revision shall be treated to be maintainable.
10. Now, it would be relevant to refer here the facts of the case at hand. The opposite party Nos. 2 and 3 (first party) made a prayer before the Court of SDM for initiating proceedings under section 145 Cr. P.C. alleging that khata No. 15 situated in village Parsauna, Paragana Badhar, Tehsil Ghorawal was agricultural land of the opposite party nos. 2 and 3-first party as well as revisionist-second party, they being co-owners and family tree was also made. Both the sides had half share each in the said property. The second party-revisionists were out to grab their half share forcibly. When they opposed, the revisionists-second party was bent upon taking forcible possession which could result in breach of peace as the tension prevailed between the two sides. Cognizance was taken by the SDM on 30/7/2015 as he directed the Incharge P.S. Ghorawal to submit a report. The police submitted its report dated 20/3/2016 stating therein that there was a dispute between both the sides concerning the said land and both the parties wanted to take possession of the said land making allegations and counter allegations against each other and that any untoward occurrence could take place. The second party-revisionists had resisted the opposite party nos. 2 and 3- first party in sowing crop forcibly on the land of their share, as a result of which most of the land of opposite party nos. 2 and 3-first party was lying fallow. It was also mentioned that the description of the whole 38 Gata No. was recorded in khatauni. Preliminary order under section 145 (1) Cr. P.C. was passed by the Magistrate (date of order not mentioned) recording therein that as per report of SHO, Ghorawal the names of the first party (opposite party nos. 2 and 3) were recorded in revenue record over Arazi No. 286 area 0.2530 hectares and other Arazi totalling 38 Gata, area 15.315 hectares situated in Mauja Parsauna, over which the second party (revisionists) were also putting its claim and that on the basis of said report he was convinced that there was likelihood of breach of peace in respect of possession over the disputed property, which necessitates proceedings to be drawn under section 145 (1) Cr. P.C.. It was directed that both the parties shall appear before his Court on 22/04/2016 with their respective claims and evidence. Thereafter the impugned order had been passed by the SDM on 27/6/2016 that in view of the strong possibility of breach of peace in connection with possession of the said land, it was necessary to attach the said property to be handed over to some independent person and accordingly directed the Incharge PS Ghorawal to attach the said property and give it in supurdigi of Lalawatar Tiwari, the ex-Pradhan Parsauna. It is this order which is under challenge.
11. The learned counsel for the revisionist-second party has contended that the revisionists-second party had filed on 09/02/2015 a case under section 229 B, U.P. Z.A. and L.R. Act regarding the land in dispute claiming relief of declaration against the opposite party Nos. 2 and 3-first party that they be declared to be bhumidhars with transferable rights of the said land hence the opposite party Nos. 2 and 3-first party had nothing to do with the same. Simultaneously an application was also moved on the same day seeking direction to be issued under section 229 B of U.P. Z.A. and L.R. Act to restrain the opposite party Nos. 2 and 3-first party from alienating or changing its nature in any manner of the said land and to maintain a status quo with regard to the same. Upon its consideration, the learned Sub Divisional Magistrate passed order on 06/06/2016 that both the parties shall maintain a status quo. It is further stated that the said stay order was continued by the said Court from time to time and the same was still in force. It was further argued that the opposite party No. 2 and 3-first party had also filed suit No. 306 of 2015 before Civil Court seeking relief of permanent injunction against the revisionists-second party regarding the same land but no interim injunction order had been passed in their favour against the revisionists-second party. Concealing all these facts the opposite party Nos. 2 and 3-first party moved the Court of SDM for attachment of the property in dispute which was not maintainable because it is settled law that when a civil case relating to a property is pending with regard to ownership and injunction, the Court of SDM should not entertain any prayer made under section 145 (1) or 146 (1) Cr.P.C., because in these proceedings the Sub Divisional Magistrate can only look into the possession and not the title. The Civil Court/Revenue Court has full jurisdiction to decide the title as well as granting injunction with regard to the disputed property. In this case concerning the disputed property, both the parties have filed cases before the competent courts, therefore any proceeding under section 145 (1) or 146 (1) Cr.P.C. would be incompetent and needs to be set aside. Moreover there was no emergency which could justify attachment of property under section 146 (1) Cr.P.C. as has been mandated by the Supreme Court, which is settled law.
12. On the contrary, the learned counsel for the opposite party Nos. 2 and 3-first party has defended the impugned order, arguing that the learned SDM was well within his right to proceed under section 145 (1) or 146 (1) Cr. P.C. in view of possibility of breach of peace existing between the parties and that the impugned order does not suffer from any infirmity. Secondly, it is argued that there was no stay granted in favour of the revisionists-second party from the revenue Court, which was evident from the questionnaire he had obtained regarding the same.
13. After having heard at length the rival contentions and having perused the record, this Court is of the opinion that the learned SDM should not have drawn the proceedings under section 145 (1) or 146 (1) Cr.P.C., when the matter was pending before competent courts for getting the title over the said land decided as well for seeking injunction. The revisionists-second party have admittedly moved revenue court for getting their ownership/title declared over the disputed property vis-a-vis the opposite party Nos. 2 and 3-first party, while the opposite party Nos. 2 and 3-first party have moved Civil Court for seeking permanent injunction against the revisionists, which proceedings are pending. It is also on record that these proceedings were pending from prior to the initiation of proceedings under section 145 (1) or 146 (1) Cr. P.C., therefore, the learned SDM ought to have shunned entertaining any application for such relief. It is also apparent from evidence on record that no emergent situation has been shown to exist which compelled the learned SDM to attach the property in dispute. Not even an iota of evidence is there which would reflect that there was any kind of emergency of compelling nature for the SDM to pass an order for attachment of the disputed property. It would be pertinent to refer to the position of law to substantiate the decision of this Court.
14. The reliance is placed by the learned counsel for the revisionist-second party upon (2002) 3 SCC 700, Ranbir Singh vs Dalbir Singh and others, wherein the order of the High Court setting aside the order passed by SDM under section section 145 (1) and 146 (1) Cr. P.C., was upheld holding that while dealing with a proceeding under section 145 Cr. P.C., the Court has to be concerned only with possession of the property in dispute on the date of the preliminary order and dispossession, if any, within two months prior to that date. The Court is not required to decide either title to the property or rights of possession of the same. It was also found by the Apex Court that both the parties had filed suits seeking decree of permanent injunction against each other and in suit filed by the appellant, an order of interim injunction had been passed and an objection had been filed by the respondent No. 1, in such a situation there was no need for the SDM to draw proceedings under section 145 (1) and 146 (1) Cr.P.C., it was nothing but an abuse of process of Court. The relevant paragraph of the said judgment is quoted herein below:
"8 . However, the High Court was in error in dealing with the Revision Petition as if it was exercising appellate jurisdiction. The High Court has dealt with the developments in the case relating to the acquisition of title, the allegations of fraudulent transfers made by Karnail Singh and M/s. Homestead and the circumstances in which the suit was dismissed as withdrawn. Keeping in view the limited scope of the proceeding under section 145, Cr. P.C. these questions were not material for determination of the main issues in the case. The Court, while dealing with a proceeding under section 145 Cr. P.C., is mainly concerned with possession of the property in dispute on the date of the preliminary order and dispossession, if any, within 2 months prior to that date; the Court is not required to decide either title to the property or rights of possession of the same. The question for determination before the High Court in the present case was one relating to the validity or otherwise of the preliminary order passed by the learned Sub - Divisional Magistrate under section 145 (1) Cr. P.C. and sustainability of the order of attachment passed under section 146 (1) Cr. P.C.. For deciding the questions it was neither necessary nor relevant for the High Court to have considered the matter relating to title to and right of possession of the property. Further, both the parties in the case have filed suits seeking decree of permanent injunction against each other and in the suit filed by the appellant an order of interim injunction has been passed and an objection petition has been filed by respondent No. 1. The suits and the interim order are pending further consideration before the Civil Court."
15. The other citation relied upon by the learned counsel for the revisionists is Ashok Kumar vs State of Uttarakhand and others, (2013) 3 SCC 366 in which the proceedings drawn under section 145 (1) and 146 (1) Cr. P.C. were set aside holding that there was no dispute regarding possession as per admitted facts and that there did not exist any emergency for the SDM to attach disputed property under section 146 (1) Cr. P.C.. The relevant paragraphs are quoted herein below: -
"6. We are of the view that the SDM has not properly appreciated the scope of section 145 and 146 (1) Cr. P.C. The object of section 145 Cr. P.C. is mearly to maintain law and order and to prevent breach of peace by maintaining one or other of the parties in possession, and not for evecting any person from possession. The scope of enquiry under section 145 is in respect of actual possession without reference to the merits or claim of any of the parties to a right to possess the subject of dispute.
9. The above order would indicate that the SDM has, in our view, wrongly invoked the powers under section 146 (1) Cr. P.C.. Under section 146 (1) Cr. P.C., 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. Section 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 and section 146 cannot be separated from section 145 Cr. P.C.. It can only be read in the context of section 145 Cr. P.C.. 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 the 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.
10. 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 a breach of the peace. The Magistrate, before passing an order under section 146, must explain the circumstances why he thinks it fit to be a case of emergency. In other words, to infer a situation of emergency, there must be material on record before the Magistrate when the submission of the parties is filed, documents produced or evidence adduced.
11. We find from this case that there is nothing to show that an emergency exists so as to invoke section 146 (1) and to attach the property in question. A case of emergency, as per section 146 of the Code has to be distinguished from a mere case of apprehension of breach of peace. When the reports indicate that one of the parties is in possession, rightly or wrongly, the Magistrate cannot pass an order of attachment on the ground of emergency. The order acknowledges the fact that Ashok Kumar has started construction in the property in question, therefore, possession of property is with the appellant - Ashok Kumar, whether it is legal or not, is not for the SDM to decide."
16. The law laid down in above rulings squarely apply in the present case and on the basis of the interpretation made above by this Court, it has already been concluded that there was no emergent situation for the SDM to attach the property in dispute. He was not supposed to draw proceedings under sections 145 and 146 Cr. P.C. when competent Court were already seized of the matter of title as well as possession.
17. Another citation relied upon by the learned counsel for the revisionist-second party is Vishnu Dutt Sharma and others vs Regional Joint Director of Education, Agra and others, 2001 (42) ALR 568, wherein it has been laid down that the stay order does not cease to be effective by efflux of time and the same continues to operate till it is recalled. The main reason why this position of law has been re-emphasised by the learned counsel for the revisionist is that the ground taken by the opposite party Nos. 2 and 3-first party was that there did not exist any stay order in the proceedings drawn by the revisionist-second party under section 229 B of U.P. Z.A. and L.R. Act, hence breach of peace could occur and for proving their point, questionnaire was also presented to the effect that there did not exist stay order in those proceedings on subsequent dates, although it was apparent from record that on the initial date the stay order was granted. The learned counsel for the opposite party nos. 2 and 3-first party could not show that the said stay order was ever cancelled/recalled, therefore in view of the above position of law, the said order would be treated to continue till the same is recalled.
18. In view of above analysis in this matter, this Court is of the view that the impugned order dated 27.6.2016 deserves to be set aside and is accordingly set aside. The parties shall maintain status quo with regard to the disputed property, till the Revenue Court in proceedings before it under section 229-B U.P. Z.A. and L.R. Act decides the title of the parties over the disputed land. This Court has no doubt that the Revenue Court shall decide the said case expeditiously, preferably within a period of six months without being influenced by any opinion expressed by this Court in this revision. It will be open for the opposite party nos. 2 and 3-first party also to seek relief of injunction, if it is maintainable, in the Civil Suit filed by them which is pending. This revision is disposed of as above.
Order Date:27.03.2018 AU/h