Rajasthan High Court - Jaipur
Smt. Keshar vs State Of Rajasthan And Anr. on 4 November, 1996
Equivalent citations: 1997(1)WLC514, 1996(2)WLN421
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. Instant criminal misc. petition under Section 482 Cr.P.C. has been filed before this Court for quashing revisional order dated 9.11.95 and the order passed by learned Additional District Magistrate (City), Bikaner on 18.7.95 in Cr.Case No. 54/95 initiating proceedings under Section 145 Cr.P.C. and appointing S.H.O. Naya Sahar, Bikaner as a receiver of the residential house of the petitioner in exercise of his power under Section 146 Cr.P.C.
2. Brief facts leading upto this, stage are that the respondent No. 2. lodged a FIR before S.H.O., Naya Sahar on 10.7.95 making an allegation that she has made an agreement of sale of the house in question with possession with the petitioner on 3.10.90 and since then she was in possession but she has been forceably dispossessed by the petitioner. She complained that on the basis of agreement to sell dated 3.10.90 she is entitled to continue in possession, therefore, possession may be. taken from Smt. Keshar, present petitioner, and he restored to her.
3. The S.H.O., Naya Sahar after enquiry, sent a report to the learned Additional District Magistrate (City), Bikaner that there is serious apprehension of breach of peace between the parties, therefore, in order to arrest apprehension of breach of peace a receiver may be appointed. On the aforesaid report, the learned Additional District Magistrate (City), Bikaner vide his order dated 18.7.95 initiated proceedings under Section 145 Cr.P.C. and in consequence thereof appointed S.H.O., Naya Sahar as a receiver of the house in question in exercise of his power under Section 146 Cr.P.C.
4. Aggrieved against the order dated 18.7.95, passed by learned Additional District Magistrate (City), Bikaner, the petitioner filed a revision before the learned Sessions Judge, Bikaner where it was brought to the notice of the learned Sessions Judge that by playing fraud respondent No. 2 Smt. Shanti Devi had obtained an ex-parte decree against her. When she came to know about fraudulent ex-parte decree she had moved an application under O.9 Rule 13 C.P.C. for setting aside the ex-parte decree.
5. Before entering into the merits of the case and adverting to the rival contentions raised at the Bar, it is to be noticed that it is admitted by the learned Counsel for the parties that the agreement dated 3.10.90 on basis of which the respondent No. 2 is claiming her right, title and interest including possession, is an unregistered document while Section 17 of the Indian Registration Act has been amended by Rajasthan Amendment Act No. 18 of 1989 which is made enforceable w.e.f. 18.9.89. It is also admitted by the learned Counsel for the parties that against ex-parte decree obtained by the respondent No. 2 a proceeding for setting aside ex-parte decree is pending before civil court under O.9 Rule 13 C.P.C.
6. With the aforesaid introspection, now the rival contentions raised at the Bar are to be examined.
7. Bottom line argument of the learned Counsel for the petitioner before me is that since civil proceedings are pending between the parties under Order 9 Rule 13 C.P.C, therefore, even if there appears to be apprehension of breach of peace between the parties the proceedings ought to have been initiated under Section 107/116 Cr.P.C. Learned Counsel for the petitioner in support of his aforesaid contention placed reliance on a decision rendered by me in the case of Chatra Ram and Ors. v. State of Rajasthan and Ors. S.B.Cr. Misc. Petition No. 272/96, decided on 15.7.1996.
8. There is substance in the aforesaid argument of the learned Counsel for the petitioner. The aforesaid question came up for consideration before me in case of Chatra Ram (supra) where in para 15 it was held which reads thus:
It is true that to arrest apprehension of breach of peace and to maintain public tranquillity is within the exclusive domain of Executive Magistrate as well as the District Administration, therefore, in such situation wherever it is brought to the notice of Executive Magistrate that a regular suit is pending before a competent court involving the question of possession and the parties are capable to approach the said competent court to obtain temporary injunction or to get a receiver appointed for protection of property during the pendency of the trial of such suit or it is brought to their notice that the parties had actually approached such competent court and had obtained an interim injunction or had got a receiver appointed for protection of the property during trial of such suit then instead of invoking their jurisdiction under Section 145(1) and 146(1) Cr.P.C. they are under legal obligation to proceed under Section 107 read with 116 Cr.P.C. to arrest apprehension of breach of peace between the parties.
9. I see no reason to differ from the aforesaid proposition of law laid down in case of Chatra Ram (supra), therefore, it is hereby reiterated.
10. Apart from the aforesaid fact, it is to be noticed that the agreement dated 3.10.90, on the basis of which the respondent No. 2 is claiming possession, is not a registered document, therefore, it is not receivable in evidence. As a matter of fact every agreement for sale of immoveable property coupled with possession thereof is required to be compulsorily registered under Section 17(f) inserted in the Indian Registration Act by the Rajasthan Amendment Act No. 18 of 1989 which is made enforceable w.e.f. 18.9.89. Indisputably in the present case the alleged agreement dated 3.10.90 alleged to have been executed by the petitioner in favour of the respondent No. 2 coupled with possession compulsorily required registration which is admittedly not registered, therefore, accrual of possession on the basis of such documents does not inspire my confidence.
11. Suffice it to say in this regard that a conjoined reading of Section 91 of Indian Evidence Act and Section 49 of Indian Registration Act after Rajasthan Amendment Act No. 18 of 1989 lead towards an irresistible conclusion that a party cannot be allowed to prove the terms of unregistered agreement to sell accompanied with possession either by oral evidence or by producing such unregistered agreement accompanied with possession. Section 91 of the Indian Evidence Act excludes oral evidence in proof of the terms of such agreement to sell which requires registration whereas Section 49 of the Registration Act prohibits its receivability in evidence.
12. It is made clear that civil court while deciding civil suit between the parties will not be enfluenced with any observation made by the Court in this order.
13. Learned Counsel for the respondent No. 2 urged before me that wherever there is apprehension of breach of peace between the parties, the Executive Magistrate has no option except to arrest apprehension of breach of peace by initiating proceeding under Section 145 read with Section 146 Cr.P.C. It is also urged by the learned Counsel for the respondent No. 2 that the mandatory provisions envisaged under Section 145(10) Cr.P.C. are not derogatory of the powers of the Executive Magistrate to proceed under Section 107 Cr.P.C.
14. The aforesaid question also came up for consideration before me in the case of Chatra Ram (supra) where in para 24 it was specifically ruled which reads thus:
In the penultimate lines of this order it would be relevant to take notice of Section 145(10) Cr.P.C. according to which nothing under Section 145 Cr.P.C. shall be deemed to be in derogation of the powers of the magistrate to proceed under Section 107 Cr.P.C. It appears to me that the provisions of Section 107 and Section 145 Cr.P.C. are counter parts of the same policy to arrest apprehension of breach of peace. The phraseology used under Section 145(10) Cr. P. C. leads towards an irresistible conclusion that ordinarily when an Executive Magistrate receives information about threatened breach of peace between the parties on account of dispute regarding land then he should proceed under Section 145 Cr.P. C. and it is left at his discretion to proceed or not to proceed under Section 107 Cr. P. C. simultaneously but whenever and wherever it is brought to his notice that a suit is pending before a competent court involving question of possession and the parties are either capable to approach such court to obtain interim injunction or to get a receiver appointed or actually one of the party had approached such court and had obtained either temporary injunction or got a receiver appointed for protection of the land in dispute during the pendency of such suit then in such a situation an Executive Magistrate has no option except to proceed under Section 107 Cr.P.C. to arrest the apprehension of breach of peace between the parties. In the latter facts and circumstances of the case it would be meaningless to initiate proceeding under Section 145(1) Cr.P.C. looking to multiplicity of proceedings, unnecessary express to the parties and wasting of public time.
15. Consequently, the order passed by the learned Additional District Magistrate (City), Bikaner dated 18.7.95 in Cr.Case No. 54/95 and appointment of receiver under Section 146 Cr.P.C. is quashed and the order passed by the revisional court dated 9.11.95 in Cr. Revision No. 28/95 confirming the aforesaid order is also hereby quashed. The instant criminal misc. petition is allowed to prevent abuse of the process of the court and to secure the ends of justice with a direction to S.H.O., Naya Sahar to restore possession of the house in question to the petitioner Mst. Keshar forthwith.
16. Before parting with the order, it is observed that if the learned Executive Masgitrate is of the opinion that irrespective of pendency of civil proceedings under O.9 Rule 13 C.P.C. there is still apprehension of breach of peace between the parties then in order to arrest such apprehension of breach of peace between the parties he would be at liberty to proceed against the parties under Section 107 Cr.P.C. read with Section 116 Cr.P.C.