Punjab-Haryana High Court
Gurdial Singh Mann vs Dharampal Singh Mann And Anr. on 4 May, 1989
Equivalent citations: 1990CRILJ389
ORDER S.S. Grewal, J.
1. This order will dispose of Criminal Misc. No. 3010-M of 1989 and Criminal Misc. No. 3155 of 1989 as common questions of facts and law, are, involved in both these petitions. Connected Criminal Misc. No. 3156 of 1989 shall also be disposed of by this order.
2. This petition under Section 482 of the Code of Criminal Procedure relates to quashment of the order passed by the Sessions Judge, Patiala, dated 11th of April, 1989, Annexure P-2 and for restoration of the order of the Sub-Divisional Magistrate, Fatehgarh Sahib, dated 5th of April, 1989, Annexure P-1, whereby, the learned Sub-Divisional Magistrate on the basis of apprehension of breach of peace between the parties ordered attachment of the land-in-dispute till the rights of the parties were determined by a competent Court with regard to person entitled to possession of the land and further appointed Receiver in respect of the land in dispute. Both the parties were directed to get the matter decided in the civil court where suit for permanent injunction with regard to possession of the land in dispute was still pending.
3. In brief facts relevant for the disposal of this case are that respondent No. 1 entered into agreement to sell with the petitioner (his brother) on 4th of June, 1987, with respect to the land measuring 23 acres 4 kanals and 2 mafias, situated in village Khanpur, tahsil Sirhind, at the rate of Rs. 60,000/- per acre. The petitioner received Rs. 3,50,000/- as earnest money. The sale deed was to be executed and registered up to 31-7-1987. The sale deed could not be executed, even, though time for its execution was extended thrice. Suit for specific performance of the agreement to sell and permanent injunction was filed in the year 1988 against the petitioner by respondent No. 1 for execution of the sale deed in pursuance of the aforesaid agreement to sell. According to the petitioner, respondent No. 1 never entered into possession of the land-in-dispute and that respondent No. 1 along with other persons in the garb of the agreement to sell wanted to take forcible possession of the land-in-dispute on 23rd of November, 1988. Respondent No. 1 also fired from his pistol at Ajaib Singh, petitioner, who was sowing wheat at that time. Cross-hurt cases were registered in respect of the said incident proceedings under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the Code) were then initiated and attachment of the land in dispute was ordered. Tehsildar Fatehgarh Sahib, was appointed as Receiver who took possession of the land in dispute on 7th of April, 1989. On revision filed by respondent No. 1, Sessions Judge, Patiala, vide impugned order dated 11th of April, 1989, stayed the order of the Sub-Divisional Magistrate concerning appointment of Receiver and also directed that further proceedings before the Receiver were to be kept in abeyance. Clarification was sought by both, the Receiver as well as by present respondent No. 1 as to what was to be done with the standing rabi crop which was ripe for harvesting. The Session Judge, Patiala, by his order dated 21st of April, 1989, Annexure P-3, directed Dharampal Singh Mann, respondent No. 2, to furnish security to the satisfaction of Sub-Divisional Magistrate, Fatehgarh Sahib, to cover possible price of standing crops before he could harvest the same, and, Receiver was directed to proceed with the case till further orders.
4. In reply respondent No. 1 admitted the aforesaid agreement to sell and pleaded that the petitioner has already received Rs. 10,20,000/- from respondent No. 1 and the former had refused to perform his part of the contract, and, that respondent No. 1 entered into possession of the land-in-dispute at the time of the agreement to sell. The dispute between the parties is pending before the civil court, which, has directed the present petitioner to maintain status quo regarding possession. It was, however, pleaded that the Sub-Divisional Magistrate had no jurisdiction to proceed under Sections 145(1) and 146(1) of the Code when civil Court had already directed the parties to maintain status quo regarding possession and that the said order has rightly been stayed by the learned Sessions Judge. It was also pleaded that the petitioner being an Ex. P.C.S. Officer got initiated proceedings because of his influence with the Sub-Divisional Magistrate.
5. Counsel for the parties were heard.
6. The learned counsel for the petitioner submitted that the order of attachment of the land-in-dispute under Section 146(1) and appointment of Receiver is an interlocutory order being, of a temporary and transient nature, and, as such no revision against the said order was maintainable in view of the express bar under Section 397(2) of the Code of Criminal Procedure. Reliance in this respect has rightly been placed on a Division Bench authority of this Court reported as Kartar Singh v. Smt. Pritam Kaur, (1985) 1 Chand LR (Cri) 338 : (1984 Cri LJ 248) wherein dealing with this aspect of the case it was held as under (At page 250 of Cri LJ) :
"Yet again, the attachment of the property and the appointement of a receiver therefore does not in any way determine the title of the parties thereto. Consequently, the ownership of the property under attachment is not even put remotely in issue. It seems to be elementary that in fact in the whole gamut of proceedings under Sections 145 and 146 of the Code, no question of title to the property in dispute arises betwixt the parties. At the highest, it affects temporarily the right to possession and that too by not transferring it from one party to another, but merely taking it into custody legis, which again, as noticed, may be withdrawn at any time and thus reverting possession to status quo ante. The factors of title and ownership being altogether out of the arena of dispute before the Executive Magistrate and the possession and attachment also being of temporary and transient nature, are other attributes militating wholly against the concept of such an order being labelled as either final or quasi-final in nature."
7. To the similar effect is the view expressed by K. S. Bhalla, J. in the authority, Gurdeep Singh v. Tehal Singh, (1988) 1 Chand LR (Cri) 701.
8. Since the revision petition filed by respondent No. 1 before the Sessions Judge, Patiala, relates to an interlocutory order, the same is not maintainable, mere fact that the same has not been finally decided, would not in any manner operate as a bar for this Court to exercise its inherent jurisdiction under Section 482 of the Code.
9. Faced with this situation it was firstly contended on behalf of respondent No. 1 that the impugned order is a final order, in as much as the same, was, passed after taking into consideration the written-statements of the parties, hearing the counsel and the Sub-Divisional Magistrate specifically held that both the parties were involved in criminal cases under Section 307 of the Indian Penal Code over possession of land, that there was apprehension of breach of peace between the parties. As the case was of emergency nature, attachment of the land-in-dispute was ordered until a competent court has determined the rights of the parties with regard to the person and title to possession of that land. This argument is devoid of any merit. Dealing with this aspect of the case it was held as under by their Lordships of the Supreme Court in case Mathuralal v. Bhanwarlal, AIR 1980 SC 242 : (1980 Cri LJ 1): .
"The Magistrate's jurisdiction does not come to an end as soon as an attachment is made on the ground of emergency. Section 146 does not contemplate that regardless of the situation, consequent upon which ah attachment is effected, it is the Civil Court and not the magistrate that is to have further jurisidiction in the matter, after an attachment is effected."
10. It was further submitted on behalf of respondent No. 1 that the dispute between the parties with regard to the land-in-dispute is pending before the Civil Court, and, as such parallel proceedings in respect of the same subject matter in dispute cannot be allowed to continue in the Court of Sub-Divisional Magistrate, as it amounts to abuse of the procees of the Court. Reliance in this respect was placed on the authority in case. Ram Sumer Puri Mahant v. State of U.P., AIR 1985 SC 472, : (1985 Cri LJ 752) wherein it was held as follows :
"In view of the fact that civil proceedings in respect of the disputed premises are pending before the competent Civil Court, where interim reliefs have been prayed for and obtained, there appears to be no justification for continuing with the proceedings under Section 145 Cr.P.C. pending before the S.D.M."
11. The argument is hardly tenable in view of the latest pronouncement of his Lordship of the Supreme Court in the authority in case. Jhunamal v. State of Madhya Pradesh, AIR 1988 SC 1973, wherein after considering Ram Sumer's case (supra) it was held as follows:
"The ratio of the said decision is that a party should not be permitted to litigate before the criminal Court when the civil suit is pending in respect of the same subject matter. That does not mean that a concluded order under Section 145, Cr.P.C. 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, Cr.P.C. 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 the 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 the one which the Magistrate has reached."
12. Ram Sumer's case (supra) is not applicable to the case in hand inasmuch as title suit for possession and injunction in respect of the property in dispute was dismissed and appeal against the said judgment and decree was pending when proceedings under Section 145 of the Code were initiated. The facts of the case in hand are entirely different in as much as proceedings in the Court of the Sub-Judge are at initial stage, and, no final decree has yet been passed in those proceedings.
13. I find further support from a Division Bench authority in case of Mohinder Singh v. Shri Dilbagh Rai, Vol. XXVIII, (1976) 78 Punj LR 803 : (1977 Cri LJ 1029) wherein on almost similar set of circumstances it was held (At p. 1033 of Cri LJ).
"That if the other party uses force to dispossess him, in spite of the stay order in his favour, leading to the apprehension of the breach of the peace creating a situation for the launching of the proceedings under Section 145, Criminal Procedure Code and attraction of its emergency powers under Sub-section (4) the Magistrate will then step in, not to start parallel proceedings but to defend the orders of the Civil Court by not allowing the aggressor to establish himself in possession of the subject matter of the dispute in violation of the orders of the Court."
14. For the foregoing reasons, I hereby accept this petition, set aside the impugned order dated 114-1989 Annexure P-2 and order dated 21-4-1989 Annexure P-3 passed by the Sessions Judge, Patiala. The Receiver already appointed by the Sub-Divisional Magistrate would operate according to law till the matter is decided by the Civil Court or the order concerning attachment or appointment of Receiver is set aside or modified according to law by the competent authority. These petitions are accordingly allowed.