Punjab-Haryana High Court
Sarwan Singh vs Sub-Divisional Magistrate And Ors. on 11 January, 1996
Equivalent citations: 1996CRILJ2372
ORDER V.K. Jhanji, J.
1. In this petition under Section 482, Cr. P.C., challenge is to the initiation of proceedings under Section 145, Cr. P.C. and order under Section 146, Cr. P.C. appointing Tehsildar Samana as Receiver to manage the affairs of the land in dispute.
2. Dispute is in regard to the property of Sakatar Singh. SarwariSingh, Subegh Singh and Jagir Singh being sons of Kapur Singh were having a joint Khata and Sakatar Singh being a co-sharer, was in possession of land measuring 114 K 15 M. Sakatar Singh was alleged to have been murdered by this brother Jagir Singh and his son Satpal Singh, who are presently facing trial for murder. Dispute arose with regard to possession of land which was in possession of Sakatar Singh, between Sarwan Singh, Subegh Singh, brother of Sakatar Singh, Paramjit Kaur, Parminder Kaur and Lakhwinder Kaur, daughters of Ikbal Singh and Jagir Singh and Satpal Singh. A calendera was presented to the Sub-Divisional Magistrate saying that there is apprehension of breach of peace and loss of life and property and proceedings under Section 145, Cr. P.C. may be initiated. On receipt of this calendera, Annexure P. 2, proceedings under Section 145, Cr. P.C. were initiated and vide Annexure, P. 3, Tehsildar, Samana was appointed as Receiver under Section 146, Cr. P.C. Present petition has been filed by Sarwan Singh brother of Sakatar Singh for quashing on the ground that proceedings under Section 145, Cr. P.C. could be initiated only if the dispute was on the question of possession whereas in this case civil Court has found the petitioner in possession and for that matter, on an application under Order 39, Rules 1 and 2, CPC, it has restrained the other side from interfering in possession of the petitioner except in respect of land measuring 22 K 11 M comprised in Khata No. 18/102 and 4/82. Order dated 15-7-1994 passed by the Additional Senior Sub Judge, Samana has been affirmed in appeal and revision against that order has also been dismissed by this Court.
3. Learned counsel has submitted that once the Civil Court has restrained the other side from interfering in their possession, proceeding under Section 145, Cr. P.C. and appointment of Receiver under Section 146, Cr, P.C. are unwarranted. Against this, the learned counsel for the respondents has submitted that in the suit filed by the petitioners, the dispute is only in regard to possession of land and question of title is not involved. According to the counsel, if the question of title is not involved, then proceedings under Section 145, Cr. P.C. are competent, in support of his submission, learned counsel for the respondent has placed reliance on judgments reported in (1) 1994 (3) RCR 217 : 1994 Cri LJ 2117 and (2) 1995 (1) RCR 659.
4. There is no dispute with the proposition as submitted by the learned counsel for the petitioner that proceedings under Section 145, Cr. P. C. cannot be dropped merely on the ground of pendency of civil suit when ownership is not disputed and there is no partition, one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. In Parkash Chand Sachdeva v. State, 1994 (3) RCR 217 : (1994 Cri LJ 2117), it has been held "where the dispute is not on the right to possession but on the question of possession, the Magistrate is empowered to take cognizance under Section 145, Cr. P.C." However, in the present case, the question raised in the suit is right to possession by the brothers of Sakatar Singh. Admittedly, Paramjit Kaur, Parminder Kaur and Lakhwinder Kaur, having not born from the loins of Sakatar Singh, are claiming the property of Sakatar Singh being the Pichhlag daughters as their mother had married Sakatar Singh whereas brothers of Sakatar Singh, Sarwan Singh and Subegh Singh have staked their claim over the property of Sakatar Singh on the basis of natural inheritance being the brothers. The question thus raised in the suit is not merely in regard to the question of possession but with regard to right of possession of the property. Trial Court as.well as the Appellate Court in the injunction suit have granted temporary injunction in favour of the petitioner qua land measuring 92 K4 M. Though determination by the Court is not final but is tentative but that would not make any difference. It has been held by the Apex Court in Dharampal v. Ramshri, 1993(1) RCR 696 : (1993 Cri LJ 1049) as under (at page 307) of AIR SCW) :-
It is obvious from Sub-section (1) of Section 146, that the Magistrate is given power of attach the subject of dispute 'until the competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.' The determination by a competent Court of the rights of the parties spoken of there has not necessarily to be a final determination. The determination may be even tentative at the interim stage when the competent Court passes an order of interim injunction or appoints a receiver in respect of the subject-matter of the dispute pending the final decision in the suit. The moment the competent Court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end. Otherwise, there will be inconsistency between the order passed by the Civil Court and the order of attachment passed by the Magistrate. The proviso to Sub-section (1) of Section 146 itself takes cognizance of such a situation when it states that Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of any breach of peace with regard to the subject of dispute." When a Civil Court passes an order of injunction or receiver, it is the civil Court which is seized of the matter and any breach of its order can be punished by it according to law. Hence on the passing of the interlocutory order by the civil Court it can legitimately be said that there is no longer any likelihood of the breach of the peace with regard to the subject of dispute.
5. Since the Civil Court has already passed an order in favour of the petitioner and by virtue of which respondents have been restrained them from interfering in their possession, there was no justification with the Sub-Divisional Magistrate to initiate proceedings in regard to the land for which injunction had been granted in favour of the petitioner.
6. Accordingly, proceedings under Section 145, Cr. P.C. initiated by the Sub Divisional Magistrate, Samana (Annexure P. 2) and appointment of Receiver (Annexure.P. 3) shall stand quashed except land measuring 22 K 11 M comprised in Khata No. 18/102 and 4/82. In regard to this land i.e. 22 K 11 Maria, the orders, Annexures P. 2 and P. 3 are maintained.
This petition stands disposed of accordingly.