Babu Singh vs State of Punjab and anr.

A.P. Chowdhri, J.

The petitioner seeks quashing of order Annexure P1 dated 591988 passed by Executive Magistrate, Gidderbaha, under Section 146 of the Code of Criminal Procedure and order Annexure P2 dated 10th October, 1990 of the Additional Sessions Judge, Faridkot, dismissing revision there against by invoking the inherent jurisdiction of this Court under Section 482 of the Code.

The facts which have given rise to this petition are : One Bhag Singh died leaving behind inter alia, 19 kanals 13 marlas of land. He was survived by three sons, namely, Babu Singh petitioner, Darshan Singh and Sarup Singh respondents No. 2 and 4, besides 3 daughters. Darshan Singh respondent No 2 had been serving as Inspector, Cooperative Societies for about 15 years and Sarup Singh was SubInspector in Delhi Police for the last 2025 years. The person who was thus stated to be in actual physical possession was the third son of Bhag Singh, namely, Babu Singh. The case of Babu Singh is that Bhag Singh died intestate. Sarup Singh and Darshan Singh, however propounded a will left by their father bequeathing the aforesaid land in favour of his three sons including the petitioner in equal shares. Babu Singh instituted a civil suit against Darshan Singh and Sarup Singh and on 261988, the Senior Subordinate Judge, Faridkot granted a temporary injunction in the suit restraining Darshan Singh and Sarup Singh from interfering in the possession of 15 kanals 9 marlas of land out of the land left by Bhag Singh. According to the petitioner, the defendants in the suit put in appearance on (10888. It was against this background that Darshan Singh and Sarup Singh made application under Sections 145/146 of the Code of Criminal Procedure to the Executive Magistrate on 5th August, 1988. The Executive Magistrate by order Annexure P2 directed notice to be issued to Babu Singh for 1391988 requiring the parties to appear before him and to put in written statement of their respective claims with regard to the actual possession of the land. The Executive Magistrate further stated that he considered the case to be one of emergency and therefore, attached the land in dispute and appointed Naib Tehsildar, Lambi, as the Receiver. Aggrieved by the aforesaid order, Babu Singh preferred a revision which was dismissed by the Additional Sessions Judge, Faridkot, on 20th October, 1990 on the ground that the order under Section 146 was an interlocutory order and no revision was maintainable there against. This is how the petitioner has filed the present petition.

The contention of the learned counsel for the petitioner is that in the absence of Darshan Singh and Sarup Singh, who were living outside the village in connection with their service, Babu Singh alone was in actual physical possession of the land and if Darshan Singh and Sarup Singh wanted to be in possession they could do so with the consent of Babu Singh or through Court. Instead of following one of these two alternatives, they resorted to a shortcut method of moving application under Sections 145/145 and having Babu Singh divested of the possession of the land by an ex parte order of the Executive Magistrate. It was emphasised by the learned counsel that the application under Sections 145/146 was made on 25th August, 1988 and immediately, thereon the order under Section 146 was passed by the Executive Magistrate without even caring to ascertain as to what the other side had to say. It was also pointed but that at the time of passing of the said order, the temporary injunction issued by Senior Subordinate Judge, Faridkot, dated 2361988 was very much in force. These facts clearly showed that the initiation and continuance of the proceedings was an abuse of the process of the Court.

The learned counsel for the respondent contended that the Executive Magistrate recorded the requisite satisfaction that there was apprehension of breach of peace and he, therefore, attached the land and appointed a Receiver. He further pointed out that in pursuance of the order, the Naib Tehsildar actually took possession of the land on 1291988. It was also pointed out by the learned counsel for the respondents that the suit of Babu Singh was dismissed as withdrawn on 5111988.

I have given due consideration to the respective submissions of the learned counsel.

There is no material on record to controvert the assertion that Darshan Singh and Sarup Singh respondents were serving outside the village. Prima facie, therefore, it appears that Babu Singh was in actual physical possession of the land left by his father. He obtained a temporary injunction in his favour against the respondents in June 1988. The temporary injunction was still in force when the impugned order was passed by the Executive Magistrate on the very first date of hearing without so much as to ascertain what the other side, namely, Babu Singh, had to say in the matter and whether there really was apprehension of breach of peace regarding possession of land. In the facts and circumstances of the case, the irresistible conclusion is that the order under Section 146 was an abuse of the process of Court. The order Annexure P1 dated 5988 is therefore here by quashed. The Naib Tehsildar who was appointed Receiver is directed to deliver back the possession of the land to the person from whom possession was taken by him. The petition is disposed of in these terms.