Patna High Court
Atahaul Haque And Ors. vs Md. Allauddin on 18 February, 2000
Equivalent citations: 2000CRILJ3245
ORDER Indu Prabha Singh, J.
1. This application under Sub-sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short 'the Code') is directed against the order dated 26-7-1997 passed in Cr. Revision No. 1/97/19/97 by Shri Binod Mohan Prasad, 2nd Additional Sessions Judge, Jehanabad through which the order passed by Shri S. Shah, Executive Magistrate acting as Sub-Divisional Magistrate, Jehanabad in Case No. 193 (M)/97, dated 25-2-1997 was set aside.
2. On the strength of a report dated 13-2-1997 submitted by the Anchal Adhikari, Jehanabad a proceeding under Section 144 of the Code was started on 15-2-1997 by the Sub-Divisional Officer, Jehanabad against both the parties with respect to 37 decimals of land bearing Plot No. 346, Khata No. 94 of Village Umta Police Station and District Jehanabad. In the said report the Anchal Adhikari had stated that 8 bags of cement of petitioner No. 2, Uday Shanker, was lying in the room at the disputed land. When the Anchal Adhikari returned from the site the lock of the aforesaid room was broken and the cement was removed by opposite party No. 1, Md. Allauddin. The Anchal Adhikari brought this fact to the notice of the Sub-Divisional Magistrate vide his Memo No. 146 dated 15-2-1997. Both the parties appeared before the learned Sub-Divisional Magistrate who converted this proceeding into one under Section 145 of the Code and attached the disputed land under Section 146(1) of the Code. Opposite Party filed Criminal Revision No. 1/97/19/97 before the learned Additional Sessions Judge, Jehanabad before whom it was submitted that Title Suit No. 118 of 1996 for the part of the disputed land between opposite party and third persons was pending. The present petitioners appeared before the Court and in their reply they stated that the petitioners were not the parties to the aforesaid title suit and mere pendency of a title suit is no bar to the proceeding under Sections 145 and 146(1) of the Code. However, the learned Additional Sessions Judge allowed the said criminal revision by the order dated 26-7-1997 by which he quashed the order dated 25-2-1997 passed by the learned Executive Magistrate initiating the proceeding under Section 145 of the Code as also the order passed under Section 146(1) of the Code. It is against this order that the present revision application has been filed.
3. The petitioners have contended that the learned Court below has committed error of jurisdiction in not considering the fact that the pendency of civil suit is no bar to a proceeding under Section 145 of the Code which is only preventive in nature. The learned Court below has also committed error of law inasmuch as the present petitioners were not parties to the said title suit which related only to a part of the disputed land which was the subject-matter of the proceeding under Section 145 of the Code. The learned Court below failed to consider that under the revisional jurisdiction re-appreciation of evidence is not permissible and the revisional Court will not replace his own views over that of the original Court. The learned Court below also failed to consider that since the provisions of Section 146(1) of the Code are of emergent nature any proceeding under this section cannot be stayed. On these grounds, amongst others, it has been contended that the impugned order be quashed.
4. A counter-affidavit has been filed on behalf of the opposite party. He has contended that through-auction purchase dated 18-1-1918, 6.97 1/2 acres of land including the disputed land was purchased by one Md. Sadique who subsequently sold it to one Rajia Khatoon through a registered sale deed. Rajia Khatoon sold it on 1-10-1942 to Anwarul Haque and one Mustafa through a registered sale deed. In a family partition the present disputed land measuring 37 decimals came in the share of Ajharul Haque. The father of this opposite party had purchased 12 decimals out of the total 37 decimals of land on 12-1-1952 for a sum of Rs. 97/- from the heirs of the aforesaid Ajharul Haque and thereafter he constructed a motor garage over this land and since then he is repairing the motorvehicles on it. The transferor wanted to dispossess this opposite party forcefully from this land and in the alternative threatened to transfer this land to somebody else. Title Suit No. 118/98 was filed by this opposite party in the Court of Subordinate Judge, Jehanabad for declaration of his right, title and possession as also permanent injuction restraining the defendants from putting any obstruction in the peaceful possession of this opposite party over the suit land. In the said suit an application for injunction under Order 39, Rule 1 and 2 and Section 151 of the Civil Procedure Code was filed by the plaintiff (present opposite party) and the learned Subordinate Judge by order dated 11-10-1996 passed an order of status quo over the suit land. This suit is still pending. In the said suit the sons of late Ajharul Haque and also of late Mustafa Haque were defendants. Since the order of status quo has been passed by the civil Court of competent jurisdiction, and since this suit is still pending, the present proceeding under Section 145 of the Code cannot be continued till its pendency.
5. In the meantime by an order dated 12-12-1997 a proceeding under Section 144 of the Code was started in which this opposite party (the plaintiff of T.S. No. 118/98) was made first party. In his report the Anchal Adhikari had mentioned that through a registered sale deed dated 14-10-1996 petitioner No. 2 has purchased 7 1/4 decimals of land out the total 37 decimals of land from the heirs of late Mustafa and for the rest of the land there was an agreement for sale with petitioner No. 3. These two persons along with their vendors had claimed that this opposite party was only their tenant and since he was not paying rent he is liable to be evicted. From this it would appear that the sale deed was only with respect to 7 1/4 decimal of land and was after the filing of the suit and the passing of the order of status quo in Title Suit No. 118/96. However, the learned Executive Magistrate by his order dated 15-2-1997 initiated a proceeding under Section 144 of the Code. When this opposite party received a notice of the said proceeding, he submitted that his claim was confined only to 12 decimals of land for which the civil suit was pending in the Court of Sub-Judge, Jehanabad where the order of status quo has already been passed and, therefore, he prayed to drop the proceeding. The learned Executive Magistrate has, however, ignoring this petition converted the proceeding into one under Section 145 of the Code even when a civil suit for declaration of title and possession with respect to the part of the disputed land was already pending before a civil Court. Against the aforesaid illegal order passed under Sections 145 and 146(1) of the Code this opposite party preferred Criminal Revision No. 1/97/19/97 which was heard and decided by the learned Additional Sessions Judge Jehanabad through his impugned order dated 26-7-1997. Before the learned revisional Court the present petitioners who are opposite party took up a peculiar point that since in both the proceedings the defendants and the second parties were not the same, the pendency of this civil suit would not bar continuance of the proceeding under Section 145 of the Code. This point was, however, dealt with in the impugned judgment by the learned Court below in its paragraph No. 6 and for the grounds stated therein the learned Court below quashed the order dated 25-2-1997 passed by the learned Magistrate initiating the proceeding under Section 145 of the Code as also the order attaching the disputed land under Section 145 of the Code.
6. It is well settled that when a civil suit for title and possession with respect to the disputed land is pending before the civil Court no proceeding under Section 145 of the Code for any portion of the suit land of the said suit can proceed. Similarly no order under Section 146(1) of the Code could be passed while the matter was pending before the civil Court for adjudication of title and possession. On these grounds it was contended that this present revision application may be dismissed as without any merit.
7. I have heard the parties in detail. I have also perused the impugned judgment passed by the learned Addl. Sessions Judge. The learned Additional Sessions Judge has taken into consideration the facts and circumstances of this case as also the law on the subject. In particular he has referred to an observation made in the case of Ram Sumer Puri Mahant v. State of U.P. AIR 1985 SC 472 : 1985 Cri LJ 752. On this point the law is well settled. From the facts of the said case it would appear that an order directing initiation of a proceeding under Section 145 of the Code and also adjudication of the property was passed by the Magistrate. In respect of the same property there was a suit for possession and injunction which was dismissed for default. The close relations of respondent Nos. 2 to 5 before the Hon'ble Supreme Court were the plaintiffs. The appellant before the Hon'ble Supreme Court was the defendant. It further appears that an appeal was filed against the dismissal which was pending disposal. In the meantime the proceeding under Section 145 of the Code was started and the property was attached. The revision petition filed against this order was dismissed by the Hon'ble Court. The Hon'ble Supreme Court after examining the law on the subject has observed that when a civil litigation is pending for property wherein the question of possession is involved and has been adjudicated, initiation of a parallel proceeding should not be allowed to continue and in the event of a decree of the civil Court the criminal Court should not be allowed to invoke its jurisdiction particularly when the possession is being examined by the civil Court and the parties are in a position to approach the civil Court for interim order such as injunction or for the appointment of a receiver during the pendency of the dispute. It has further been observed by the Hon'ble Supreme Court that the multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.
8. In the present case no doubt the aforesaid proceeding under Section 145 of the Code related to 37 decimal of land out of which 12 decimal of the land was the subject-matter of the title suit. It has been submitted that the parties are also not the same. The fact, however, remains that part of the land which is subject-matter of the proceeding under Sections 145 and 146(1) of the Code is the suit land in the civil suit in which the civil Court was examining the question of title and possession over the same. It does not matter even if the entire disputed land in the two proceedings are not identical. It is also not of much importance that some of the parties are different. The fact, however, remains that the part of the disputed land over which the proceedings under Sections 145 and 146 of the Code are pending is also the subject-matter of the dispute in the civil Court where the title and possession over the same is being examined. In such a situation if the Executive Magistrate is allowed to proceed with the proceeding under Sections 145 and 146(1) of the Code there is danger of two conflicting decisions, one passed by the Civil Court and other by the Court of the Executive Magistrate. In such a situation the law provides that the civil Court should be allowed to examine the question of title and possession over even a part of the disputed land and a parallel proceeding even when the disputed land is much more than the suit land but inclusive of it cannot be allowed to proceed for fear of two conflicting decisions.
9. This question again came up for consideration before the Hon'ble Supreme Court in the case of Jhunamal alias Devandas v. State of Madhya Pradesh AIR 1988 SC 1973 : 1989 Cri LJ 82. In this decision the ratio of decision in the case of Ram Sumer Puri Mahant 1985 Cri LJ 752 (SC) (supra) has been explained and it has been observed 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.
This decision in the case of Ram Sumer Puri Mahant (supra) was further approved by the Hon'ble Supreme Court in the case of Prakash Chand Sachdeva v. The State AIR 1994 SC 1436 : 1994 Cri LJ 2117.
10. From the detailed discussions made above it becomes clear that the learned Additional Sessions Judge has properly and thoroughly discussed the merits of the case and the law on the subject. He has thoroughly examined the contentions raised on behalf of the parties before him and has come to the correct conclusion. As such I am not inclined to interfere with the same.,No illegality or irregularity could be pointed out in the impugned judgment by the learned counsel appearing on behalf of the parties.
11. In the result this revision application is dismissed and the impugned order is confirmed.