Balbir Singh vs State of Punjab

S.C. Malte, J.

This petition is for quashing the proceeding initiated under Section 145 Cr.P.C. and consequential order under Section 146 Cr.P.C. In this case, the admitted position is that the parties had entered into a partnership. The property in dispute is the partnership property. The dispute between the parties arose because one of the two parties started claiming that the partnership has come to an end on account of execution of dissolution deed. The other party on the other hand contended that these were forged documents. Annexure P6 indicates that one of the contesting parties had filed a civil suit and sought injunction against the other partner to restrain him from entering into the suit property. The order passed below Annexure P6 indicates that civil Court declined to grant injunction by assigning reason that the property belongs to the partnership, and until the disputed question of dissolution of the partnership is adjudicated by affording opportunity to lead evidence to both the parties, it was not possible to conclude that aspect. Briefly stated, therefore, one of the partners could not get ad interim injunction.

Annexure P5 indicates with one Balbir Singh who is said to have stepped into the shoes of one of the partners, filed another suit and sought ad interim injunction in his favour to restrain the other partner from interfering into the possession of the partnership property. That application for adinterim injunction was declined. Hence, the net result is that none of the two parties in contest now, could get any injunction order from the Civil Court so as to restrain the other party from interfering with the possession. It also appears that since the property in question belongs to the partnership firm, the civil Court was of the view, rightly so, that both the partners can be said to be in possession and entitled to possession of the disputed property.

Counsel for the respondent submitted that the report from the police does indicate that on issue of possession over the partnership property, both the partners are at loggerhead and there is likelihood of breach of peace. According to him that was enough justification to start proceedings under Section 145 Cr.P.C. to prevent the breach of peace. In support of that contention, he has relied upon the case of Parkash Chand Sachdeva v. State and another, 1994(3) Recent CR 217 . In that case their Lordships of the Supreme Court have considered the matter that arose between the father and son. Facts in that case indicate that the dispute pertained to an independent portion of a house which was given in possession of the appellant in that case and there was enough material to show appellant''s occupation of that portion. In the set of these facts, Their Lordships were of the view that though the dispute pertains to the coowners in respect of the property which was ancestral property, since the appellant in that case, was held to be exclusively in possession of the property, and taking into consideration the equity and justice involved in that case, their Lordships were pleased to pass the order. Obviously, the observation in that case cannot be bodily lifted to make these applicable to the facts of the present case. In this case, the property is a partnership property, and since the dispute in between the partners, the matter would be considered on the basis of legal fiction that all the partners are deemed to be in possession of the property. Even if one of the partners is said to be in possession of the property, that occupation or possession is for that partner and for and on behalf of the other partners also. In the set of such legal position, I proceed to consider the provision of Section 145(4) Cr.P.C. which is as follows :

Procedure where dispute concerning land or water is likely to cause breach of peace

(1) xxxx

(2) xxxx

(3) xxxxx

(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties of a right to possess the subject of dispute, pursue the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under Subsection (1) in possession of the subject of dispute :

Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub section (1), he may treat the party so dispossessed as if that part had been in possession on the date of his order under subsection (1)."

(4) In view of that provision it is clear that Magistrate would be required to adjudicate which of the parties can be said to be in possession. He has further to find out whether one of them was forcibly dispossessed within two months next before the date on which the report of the police officer was made or after that date, but before the order was passed. Since all the partners are said to be in possession of partnership property, it would not be possible to proceed under Section 145 Cr.P.C. to conclude the matter in terms of Clause 4 of Section 145 Cr.P.C. In the similar situation, where the person happened to be joint owner, this Court has in Rachhpal Singh v. State of Haryana and others, 1990(2) RCR 566 held the view that since dispute was between the joint owners, and since the revenue proceedings were in progress, the joint owners being in possession of the property, the Magistrate could not initiate proceedings under Section 145 Cr.P.C. Similar situation has arisen in this case also. It may be noted that the efforts to get injunction in the civil Court have failed. However, in the situation mentioned above, there appears to be apprehension of breach of peace on account of both the parties laying claim for possession. If that be the position, the maintenance of peace could have been achieved by proceedings against the parties who resort to the violence or likely to commit breach of peace. Such preventive action could have been taken under Chapter VIII of Cr.P.C. This is not to suggest that such a step should be taken. All that I wanto indicate is that the prevention of breach of peace could have been achieved by method other than proceedings under Section 145 Cr.P.C. because there is technical and legal difficulty in concluding proceedings under Section 145 Cr.P.C. for the reasons mentioned above. It is also possible to move the Civil Court for appointment of receiver if it is possible on merits. The proceedings initiated under Section 145 Cr.P.C. in such cases however, is obviously wrongly approach. I, therefore, allow the petition and set aside the proceedings under Sections 145 and 146 Cr.P.C.