Patna High Court - Orders
Rajdeo Yadav @ Rajdeo Prasad & Ors. vs State Of Bihar & Anr on 21 August, 2013
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.5976 of 2013
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1. Rajdeo Yadav @ Rajdeo Prasad Son of Late Deo Nath Yadav, Resident
of Village-JamanBigha, P.S.-Parasbigha, District - Jahanabad
2. Awdesh Prasad Son of Sri Barhu Yadav, Resident of Village-Jaman
Bigha, P.S.-Parasbigha, District - Jahanabad.
3. Krishna Murari Yadav Alias Krishna Murari Prasad Son of Late Chotu
Yadav, R/O Jaman Bigha, P.S. Parasbigha, District Jahanabad.
.... .... Petitioner/s
Versus
1. State Of Bihar & Anr.
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Alok Kr. Sinha, Adv.
Mr. Bhola Kumar, Adv.
Mr. Ashish Sinha, Adv.
For the Opposite Party/s : Mr. Uday Narayan Singh, Adv.
Mr. Satish Chandra, Adv.
For the State Mr. Amitabh Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
5 21-08-2013Heard learned counsel for the petitioners and learned counsel for the State.
In this case, petitioners are challenging the order dated 21st October 2012 passed by the Sub-Divisional Magistrate, Jehanabad in Case No. 649 of 2012 whereby he has converted the proceeding u/s 144 to 145 of the Criminal Procedure Code.
It appears from the record, a proceeding u/s 144 Cr. P.C. was initiated by the Sub-Divisional Magistrate, Jehanabad. An application dated 3rd May 2012 was filed by O.P. No. 2 who was first party in 144 proceeding with regard to the land, namely, village-Noru Tola, Titai Bigha, PS-Parbigha, District-Jehanabad. Patna High Court Cr.Misc. No.5976 of 2013 (5) dt.21-08-2013 2/7 The details of the land which is appertaining to khata No.73, plot No.690, area 7.06 acre. On initiation of 144 proceeding, notices were issued. In pursuance thereof, the show cause was filed by the petitioner. It appears, during the pendency of 144 proceeding, the Sub-Divisional Magistrate, Jehanabad was satisfied, it was a bona fide land dispute between the parties and there was an apprehension of breach of peace in connection with the said land the proceeding of 144 was converted into 145 proceeding and asked the petitioner to file a show cause.
The petitioner challenged the conversion of the proceeding from 144 to 145 of the Code and submitted, during the pendency of the civil proceeding, the continuation of proceeding u/s 145 Cr.PC is an abuse of process of the Court and in support of his contention, he has relied on judgment reported in AIR 1994 (SC) 109 (Ravi Raman Prasad Vs. State of Bihar).
The counsel for the other side submits that the court below found, there was a dispute with regard to the possession of the land and there was likelihood of breach of peace and for that reason, the Magistrate has rightly converted the proceeding u/s 145 Cr.P.C. He has further replied that Title Suit No. 222 of 2012 is related to the Specific Performance of Contract, it is not related to the right, title and possession of the property, in the case of Patna High Court Cr.Misc. No.5976 of 2013 (5) dt.21-08-2013 3/7 Specific Performance of Contract, the proceeding u/s 145 of the Code cannot be said to be bad, as under the proceeding dispute of possession led to apprehension of breach of peace but under the Specific Relief Act, the relief has been sought registration of land as he has done part performance of Contract was ready to perform rest part of Contract. The Specific Performance of Contract cannot be said to be dispute with regard to the title and possession of the land and the relief under Specific Relief Act depends on many factors including discretion of the court below to pass decree in favour of the plaintiff.
Having considered the rival contention of the parties, in the present case, it appears, in the Title Suit No. 222 of 2012 the statement is both parties have entered into an agreement for sale of the 5 bigha land and in pursuance thereof Rs. 66,000/- was paid to the 1st land lord and possession was given and receipt of payment was given. Rs. 40,000/- was paid as an advance money to the land lord for three bigha of land and was given possession of the land for rest two bigha of land, has paid money, accordingly possession has been given and cultivating the same. It has been stated, the land lord had given a promise to execute the sale deed but later on resiled from the commitment though possession of the land was given to the present petitioner-plaintiff. Patna High Court Cr.Misc. No.5976 of 2013 (5) dt.21-08-2013 4/7
In the suit, it has been alleged, the sale deed was not executed in favour of the plaintiff in spite of fact that the plaintiff was ready to pay the rest amount. Legal notice was given to him even thereafter the sale deed was not executed.
It has been alleged, when the present petitioner (plaintiff of suit) lost hope, he served the legal notice on 10.4.2012 and thereafter he could know, the land holder had executed the Power of Attorney on 12.1.2012 in favour of the O.P. No. 2.
It has been claimed that Power of Attorney is completely illegal, it has been created with bad intention to subsume the advance money paid to the land holder.
From the narration of the fact in the suit, it is apparent, even if the facts are taken on its face value, it is amply clear that the original land holder has not executed any sale deed in favour of the present petitioner and no where in the title suit any date has been shown of giving possession of property to the present petitioner.
Here is the question of dispute of possession over the land as both sides have been claimed respective possession over the property which led to filing of the present case. The judgment that has been cited by petitioner is not applicable to the fact of this case, as in that case, an eviction suit was filed against the tenant Patna High Court Cr.Misc. No.5976 of 2013 (5) dt.21-08-2013 5/7 which was decreed in favour of land lord and in execution of judgment and decree possession of house was given to land lord with the aid of the Police force. The tenant claimed that there was an agreement for sale of the property and for that he had filed Title Suit No. 27 of 1991 in the civil court and the same was pending. The tenant continued to assert his possession of the house and did not reconcile even after dispossession which was affected with the help of police force, ultimately an incident took place on 15th September 1991 by which they tried to take possession of the house which led to filing of the criminal case.
After that, a proceeding u/s 144 of the Code was initiated. The Magistrate, at the later stage, on the basis of judgment and decree passed by the civil court, decided the proceeding in favour of the land lord and restrained the tenant from entering upon the property.
A criminal revision was filed by the tenant but was dismissed.
Again a fresh application u/s 144 of the Code was filed which was dismissed by a reasoned order showing the existence of eviction decree against the tenant. Accordingly, that order attained its finality. Again an application u/s 482 of the Code was filed before High Court substantially for the same relief Patna High Court Cr.Misc. No.5976 of 2013 (5) dt.21-08-2013 6/7 which was claimed before the SDO court and the High Court directed the house should remain in possession of the officer incharge of police station till the disposal of the title suit.
The Hon'ble Supreme Court found the order of High Court was completely illegal, as the owner was given possession by the process of the court and in that context, the Hon'ble Supreme Court has held that the exercise of power u/s 482 of the Code by the High Court was gross abuse of power of the court. The issue was not before the Hon'ble Supreme Court as to whether the proceeding u/s 144 and 145 of the Code can be initiated during the pendnecy of the civil court rather the Supreme Court has found that land lord was in possession of the property in view of the decree passed by the civil suit which was effected by the process of the Court and the land lord was given the possession of that property and it was an unjustified act of the High Court to hold that officer incharge of the police station would remain in possession of suit property during the pendency of suit. .
In this case, admittedly no decree has been passed by the Court, either in civil suit of Specific Performance of Contract or any decree to show, the petitioner was given possession of that property, though he has claimed the possession over the property. Patna High Court Cr.Misc. No.5976 of 2013 (5) dt.21-08-2013 7/7
Here both sides are claiming possession over the land that is the cause of apprehension of breach of peace. The court below found, it was a bona fide land dispute between the parties which was complex in nature and there was an apprehension of breach of peace. It will be proper in the proceeding under section 145 of the Code, the court below will decide the possession of respective parties as both are claiming possession over the property, the court below rightly converted the 144 proceedings of the Code into proceeding of 145 of the Code. This Court does not find any error in the order of conversion.
Accordingly, this petition is dismissed. It goes without saying that if any judgment is passed against any party, he will have liberty to challenge the same before the appropriate forum.
(Shivaji Pandey, J) Mahesh/-