Balkishan and anr. vs Khazana Ram and anr.

M.M. Punchhi, J.—This is a petition under S. 482 Code of Criminal Procedure, seeking relief of quashing of orders dated 26th July, 1986 (Annexure P3) and 30th July, 1986 (Annexure P4) passed by the SubDivisional Magistrate, Safidon, initiating proceedings under S. 145, Code of Criminal Procedure, and attaching the land in dispute putting it in possession of the receiver.

The patent facts are that the petitioner on entered into an agreement with Ram Dhari alias Dhari for purchase of the disputed agricultural land for a sum of Rs. 28,000/ Ram Dhari happens to be the brother of Khazana Ram respondent No. 1. It appears that Ram Dhari and his brother Khazana Ram connived with each other in order to get out of the aforesaid agreement. Designately, Khazana Ram filed a collusive suit against Ram Dhari which was decreed on 17th July, 1980, conceding title of the land in favour of Khazana Ram. Close to its hells, Khazana Ram on 11.12.1980 mortgaged with possession the land wife registered deed in favour of Mangat Ram and Jeewan Ram sons of Net Ram.

The petitioner then filed a suit for specific performance on the basis of the agreement dated 11.7.1980. Simultaneously they also prayer on the relief of declaring the collusive decree dated 17.7.1980 between Khazana Ram and Ram Dhari to be null and void as also further mortgage deed dated 11.12.1980 executed by Khazana Ram in favour of Mangat Ram and Jeewan Ram as null and void. Sequely the relief sought was for execution and registration of the sale deed to their favour and possession of the land. The second relief sought was for injunction restraining the defendants from further hearing the said land. the defendants arrayed were none other than Ram Dhari his brother Khazana Ram and the latter''s inducted mortgages Mangat Ram and Jeewan Ram, The suit was decreed after context on 1.9.1982 by Shri T.C. Gupta, sub Judge 1st class, Safidon, in Civil Suit No. 334 of 1981 copy of decree of which is appended as Annexure P1 with the petition the mandate of the decree is as fallow :

"it is ordered that a decree for specific performance of the agreement to sell dated 11.7.1980 is hereby passed in favour of the plaintiff against the defendants on the condition that plaintiff shall pay the remaining sale consideration of Rs. 15.200/ and shall bear the costs of the execution of the sale deed. It is further ordered that mortgage amount of Rs. 10,000/ shall be paid to defendants No. 3 and 4 from the balance sale consideration to be paid by plaintiffs to defendant No.1, the decree dated 17.7.80 in Civil Suit No. 235 of 1980 and the mortgage deed in favour of defendants No. 3 and 4 are hereby set aside. Defendant No. 2 is burdened with the entire costs of this suit."

In execution of the decree, the petitioners undeniably got the sale deed executed in their favour and vide daily dairy report No. 16 dated 1191985 obtained possession of the land while depositing compensation of the standing crops in the treasury on 1891985. The petitioners even made an effort to have the mutation sanctioned in their favour.

Seemingly, the defendants in the suit tried to forcibly, dispossess the petitioners which gave cause to the petitioners to have filed another suit for permanent injunction restraining the defendants from interfering with the possession of the petitioners and also from entering forcibly in the land in dispute. Vide order dated 2471986 (Annexure P2) Shri K.K. Bishnoi. Sub Judge 1st Class, Safidon, granted an exparte injunction in favour of the petitioners.

Two days later i. e. on 2671986, on the report of the Tehsildar, Safidon, before whom the case regarding mutation about the land in dispute was pending, the SubDivisiional Magistrate initiated proceeding under S. 145 Code of Criminal Procedure vide order Annexure P3 on the file, and close to its heels on 30th July. 1986, passed an order under S. 146, Code of Criminal Procedure. attaching the land in dispute and appointing the Tehsildar. Safidon as receiver. The basis of the proceedings apparently is that the Tehsildar reported that Ram Dhari and Khazana Ram were Harijans and their land couldnot be sold for a period of 10 years as obtained by notification No. 2/100/III,18869,79G.I. dated 15.9.1981 issued by the Haryana Government. The enquiries conducted by the Tehsildar reveal that Ram Dhar as a Harijan had purchased the land from the Custodian Department presumably under a set of conditions and the SubDivisional Magistrate considered that there was violation thereof. It is primarily on that basis that the land in dispute was attached. Additionally the report of the Tehsildar, Safidon, that Khazana Ram was in possession of the land in dispute was adopted and it was portrayed as if the petitioners wanted to take forcible possession of the land in dispute, Justifying his putting the land in dispute in the possession of the receiver.

Nothing could be more an abuse of the process of the Court than that the Sub Divisional Magistrate, Safidon, has resorted to. His suspicion that the sale by Ram Dhari in favour of the petitioners, though compulsively and through the intervention of the court. violated conditions of sale executed in his favour by the Custodian, was a matter which was totally alien to a dispute under S. 145, Code of Criminal Procedure. The question of title or the establishment of right to possession is outside the scope of an enquiry under S. 145, Code of Criminal Procedure. It is well settled as a principle of law that when right between the parties have been settled by a Civil Court, the executive Courts must in respectful agreement of the settlement, preserve the rights of the parties as declared and not upset, such settlement by supposed disputes of possession and the apprehensive breach of peace. The Sub Divisional Magistrate could in no event, ignore, the decree passed by Shri T. C. Gupta, SubJudge Ist Class, Safidon, in favour of the petitioners on Ist September, 1982, and its execution by means of court which had the effect of wiping out the supposed title of Khazana Ram and the supposed mortgage in favour of Mangat Ram and Jeewan Ram mortgagees. The title of land as vested in Ram Dhari stood transferred to the petitioners as also its possession. Since the execution was completed as early as in September, 1985 the possession of the petitioners had presumptively to continue and any parallel enquiry by the Tehsildar, Safidon, opining that Khazana Ram was in possession of the land, in dispute, was totally out of tune of the judgment of Civil Court and an objectionable attempt to disturb the rights as settled by the Civil Court. Thus I am of the considered view that there the executive court tended to overstep its functions qua the land in dispute, a step impermissible under the law and obviously the proceedings before it are flagrantly an abuse of process of the Court. Sequely, both the orders of, the SubDivisional Magistrate are quashed as also the proceedings, directing the executive court not to overstep its jurisdiction.

For what has been said above, this petition succeeds. The receiver shall hand over possession to the petitioners forthwith.