Punjab-Haryana High Court
Swaran Singh And Another vs State Of Punjab And Others on 10 July, 2008
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No. 17022-M of 2001 (O&M)
Date of decision: 10th July, 2008
Swaran Singh and another
... Petitioners
Versus
State of Punjab and others
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Vikas Singh, Advocate for the petitioners.
Mr. Mehardeep Singh, Assistant Advocate General Punjab for
the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Counsel for the petitioner submits that Annexure P-1 was appeal instituted by the respondent No.2 and the Court of Additional Sessions Judge has returned the finding on 5th March, 1998 to the following effect:
"From the averments made in the above paragraph, no doubt is left in my mind that the defendant was in possession of the suit land."
Defendant in the suit was the present petitioner, Swaran Singh. Counsel further state that in 2001 another suit was instituted by Mumtaj Ali for declaration. It is stated that thereafter Mumtaj Ali filed another suit, which was decreed on 6th March, 1997. The Court held that onus was on defendant to prove his possession.
CRM No. 17022-M of 2001 2
It will be pertinent to mention here that in the judgment and decree (Annexure R-3), Swaran Singh was not made a party but petitioner No.2 Bachan Singh was a party. R-4 was made subject matter of appeal. In the appeal R-4, earlier decision dated 5th March, 1998 (Annexure P-1) passed by the appellate Court was taken into consideration and it was held that at that time, petitioners were in possession (but at present, on 7th April, 1999, Mumtaj Ali was in possession). A third suit was also filed by Mumtaj Ali that was for declaration and correction of entries made in the revenue record qua possession. That suit was dismissed. Counsel for the petitioner states that Annexure R-3 and R-4 are subject matter of Regular Second Appeal No. 134 of 2000, which is pending in this Court.
It is settled position of law that Civil Court, when seized of the question regarding possession, then parallel proceedings under Section 145 Cr.P.C. cannot continue. Counsel for the petitioner has placed reliance upon Amresh Tiwari v. Lalta Prasad Dubey and another, 2000 (2) RCR (Criminal) 614. Relevant portion of the same is reproduced as under:
"13. We are unable to accept the submission that the principles laid down in Ram Sumer's case would only apply if the civil Court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumer's case is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the Civil Court and parties are in a position to approach the Civil Court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue.
14. Reliance has been placed on the case of Jhummamal alias Devandas v. State of Madhya Pradesh and others, 1989 (1) RCR (Crl.) 428 : 1988 (4) SCC 452. It is CRM No. 17022-M of 2001 3 submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings under Section 145 Criminal Procedure Code should be set at naught. In our view this authority does not lay down any such broad proposition. In this case the proceedings under Section 145 Criminal Procedure Code had resulted in concluded order. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded Order under Section 145 Criminal Procedure Code should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An Order of status quo had already been passed by the competent civil Court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram Sumer's case (supra) fully applies. We clarify that we are not stating that in every case where a civil suit is filed, Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil Court that proceedings under Section 145 should not be allowed to continue. This is because the civil Court is competent to decide the question of title as well as possession between the parties and the orders of the civil Court would be binding on the Magistrate."
Since in the present case Civil Court is seized of the issue regarding possession, findings of the Civil Court are binding upon the SDM.
Parties are directed to appear before the Sub Divisional Magistrate on 31st July, 2008. Orders passed by the Civil Court regarding possession shall be placed before him and taking into consideration the order of this Court and observations of Hon'ble Apex Court, he shall pass the fresh order. Needless to say that order (Annexure P-5) passed earlier CRM No. 17022-M of 2001 4 by the SDM and order (Annexure P-6) passed by the Sessions Court affirming Annexure P-5 will not stand in the way of the SDM to pass the fresh order.
With these observations, present petition is disposed off.
[KANWALJIT SINGH AHLUWALIA] JUDGE July 10, 2008 rps