Bhawan Pal vs Prem Kumar Jain and others

I.S. Tiwana, J.—The short question that has arisen in this petition u/s 482 of the Code of Criminal Procedure (for short, the Code) is as to how far the Sub-Divisional Magistrate Gurgaon is justified in assuming jurisdiction u/s 145 of the Code in the given facts and circumstances of this case and in passing the impugned order Annexures P 4 and P. 5 on October 3, 1980 under sections 145(1) and 146(1) of the Code. The following facts furnish the necessary background of this case :

Raja Ratti Ram, his wife Smt. Sushila Rani and their three sons, i.e. prem Kumar Jain, Raj Kumar Jain and Satish Kumar Jain constituted a Joint Hindu family and owned a big bungalow numbered as 1 Civil Lines, Gurgaon. On June 9, 1977, Prem Kumar Jain filed a suit (No. 137 of 1977) in the Civil Court at Rewari against the other persons named above for a declaration to the effect that the above noted bungalow was a joint Hindu family property and defendants No. 1 and 2 to the same (Raja Ratti Ram and his wife Smt. Sushila Rani) be restrained from dissipating or alienating the said property in any manner. In this plaint he made the following assertions amongst others.

By and under a deed of partition dated July 27, 1938, the above noted joint family was disrupted and the various properties movable and improvable including urban and agricultural lands were partitioned and allotted in favour of the parties. Later on the basis of this partition effected on July 27, 1938, a declaratory decree affirming the same was obtained from the Court of Senior Sub Judge, Gurgaon on April 14, 1952 in the civil suit No. 40 of 1952. As per the partition deed and this decree the property noted above, i.e. 1, Civil Lines. Gurgaon (measuring about 6500 sq. yds. including buildings and structures) fell to the share of Smt. Sushila Rani. Further according to this plaint, somewhere in the year 1958, Smt Sushila Rani voluntarily once again threw this property in the common stock and it once again came to constitute the joint Hindu family property. Since sometime later in May. 1977 this Sushila Rani and her husband Raja Ratti Ram for reasons best known to them started denying the status of the above noted joint Hindu family property the plaintiff Prem Kumar Jain felt impelled to bring the above noted suit for the relief already indicated. This suit is still pending between the parties.

On October 1, 1980, Prem Kumar Jain filed an application before the District Magistrate, Gurgaon with the allegations that a civil suit as already indicated was pending between them and other members of his family with regard to 1, Civil Lines, Gurgaon and vide the order of the High Court at Chandigarh, his parents had been restrained from alienating that house but Raja Ratti Ram and his wise Sushila Rani in contravention of that order have alienated the house in favour of one Bhawan Pal (Present petitioner) and on September 28, 1980, said Bhawan Pal with the help of 40 persons committed trespass in relation to the above property and on that account he and his brother Shri Raj kumar Jain apprehended at breach of peace at the hands of his father mother and brother Satish Kumar Jain and Bhawan Pal the alleged vendee. In this application, Prem Kumar Jain at no stage asserted his exclusive possession over the property in question and rather claimed his possession over the said property in the following words :

That the above said house was in, my possession exclusively and jointly.

This application of his was forwarded by the District Magistrate Gurgaon to the police proper action. Right on the next day S.H.O.P. S. City Gurgaon Submitted a report to the Sub Division Magistrate to the effect that a dispute between Sushila Rani her husband and her son Satish Kumar Jain and Bhawan Pal who is a tenant of the said proparty as the first party, and Prem Kumar Jain and Raj Kumar Jain as the second party was there with regard to the above noted property, e.i. 1 Civil Lines, Gurgaon and as there was grave danger and apprehension of breach of peace at the hands of the two parties the said residential bungalow be immediately attached. On the basis of this report and the application made by Prem kumar Jain to the District Magistrates the Sub. Division Magistrate, Gurgaon passed the two impugned orders Annexures P. 4 and P. 5 on October 3, 1980 asking the parties to attend his Court in person or through Pleader on October 8, 1980 to put in their written statements in support of their respective claim about the actual physical possession of the house in question and attaching the property u/s 146 of the Code. These are two orders which are now impugned before me by Shri Bhawan Pal who claims to be in actual physical possession of the property except two rooms on the first floor which'' are stated to be in possession of two brothers Prem Kumar and Raj Kumar.

The primary submission of Mr. D. Mukerjee learned Sr. Advocate for the petitioner now is that on the basis of material which was before him (application of Prem Kumar Jain to District Magistrate and the report of the police) the Sub Divisional Magistrate could not possibly assume jurisdiction u/s 145 of the Code and this the two impugned orders are completely without jurisdiction. This argument of the Learned Counsel for the petitioner is forestalled by Shri Bhandare the learned Sr. Advocate for the respondents on ground that firstly this petition is not competent u/s 482 of the Go-de as the Magistrate has not disposed of the case on merits and his impugned orders are only interlocutory orders and secondly there was enough of material before the Sub Divisional Magistrate to assume jurisdiction and the orders impugned are strictly within his competence.

So far as the first submission of Shri Bhandare is concerned, I do not find any merit in the same. As has already been held by their Lordships of the Supreme Court in Amar Nath & others v. State of Haryana (1977) 4 C.L.T. 395, an order of summoning the accused in complaint to stand his trial before a Judicial Magistrate cannot be held to be interlocutory order, on the same parity of reasons I find that an order calling upon the present petitioner to join the proceedings u/s 145 of the Code and to submit his evidence in support of his claim of being in possession of the house in question and attaching the house during the course of those proceedings and throwing him out of said building cannot be styled as an interlocutory order. Even if this order is to be taken as an interlocutory order then again in view of the observations of their Lordships in Madhu Limaye Vs. The State of Maharashtra, , this Court is not debarred from examining the legality and propriety of the same in exercise of its power u/s 482 of the Code and the provision of section 387(2) do not prevent this Court from exercising this inherent jurisdiction. So the sole question that needs consideration is as to how far in the given facts arid circum-stances the Sub Divisional Magistrate had the jurisdiction to proceed u/s 145 of the Code.

It is true that while examining the legality or property of an order passed by a Magistrate u/s 145(1) this Court cannot go into the sufficiency of the material before the said Magistrate for the initiation of those proceedings yet if it can be shown that the order passed by the Sub Divisional Magistrate u/s 154(1) amounts virtually to abuse of the process of the Court on the admitted facts he had no jurisdiction to go into the matter then the interference by the this Court is called for the secure the ends of Justice. In this regard, the submission of the Learned Counsel for the petitioner is that admittedly Shri Prem Kumar Jain on whose application the proceedings have been initiated has at no stage claimed exclusive possession of the property in question and rather has admitted it to be "exclusively and jointly'''' possessed (a concept unknown to law) by him. The Magistrate had no jurisdiction to go into the matter any further. According to the Learned Counsel even the police report Annexure P. 3 does not show Prem kumar Jain to be in possession of the property. Further the Learned Counsel tried to show from the inventory of Articles (P. 6) prepared at the time of taking over Possession by the police that the articles removed from the house were articles of common use and constituted house hold effects is enough of a material to establish exclusive possession of Bhawan Pal petitioner. As per this inventory, keys of most of the rooms from which the goods were removed by police are stated to have been produced by Bhawan Pal. Any way this inventory or material not being before the Magistrate at the time of the passing of the impugned orders, I am not going to take this piece of evidence into consideration while examining the property of the impugned orders. Learned Counsel further maintains that there being no assertion of exclusive possession by the complainant i.e. Prem Kumar Jain and rather there being an amission that the property was a joint Hindu family property and was in joint possession of the members of the family, the provisions of section 145 of the Code cannot be attracted to the facts of this case. In support of this stand, the Learned Counsel relies on the following Judgments:--

Makhan Lal Roy and another, v. Barada Kanta Roy, 11 C.W.N. 512

Jam Bhambho Khan v. Makadum Muhammad Hassain Shah, AIR 1942 Sind 117

Pir Ghulam Shah v. Pir Merrajuddin and another, AIR 1964 J. & K. 1

Hanumappa v. Kondappa AIR 1964 Mys 195

Harbans Lal and others v. Hans Raj, 1979 CCC. 253

In all these cases it has been held that unless the complainant alleges exclusive possession of the property in his favour it is not within the competence of the authorities or the Magistrate to take action u/s 145 of the Code. This is more so when the complaint or the applicant himself admits the property in question to be in Join possession of the parties. Apparently this is for the reason that under sub section (6) of section 145, the magistrate has to decide as to which of the two or more contesting parties was in exclusive possession of the property on the date of the passing of the preliminary order or within two months prior to the fame. In a case where the complainant himself admits such a joint possession of the parties, such a complaint cannot possibly give rise to any proceedings u/s 145. The facts in Jam Bhambho Khan''s case (supra) are almost nearest to the case in hand and this is what has been held by the Division Bench in this regard :--

In this case, the applicant at one place in his application stated that the land was undivided, he purchased an undivided share, and in another place he stated that he was in separate possession of his one third undivided share. This is a contradiction in terms and we think that the First Class Magistrate should have rejected this application at the outset.

As opposed to this chain of precedents, the Learned Counsel for the respondents has placed reliance on a solitary judgment of the Patna High Court in Kesheo Prasad Singh Vs. Ram Baran Chaubey, wherein it has been observed that the mere fact that one set of persons claims exclusive possession over the major portion of a property while the other set of persons claims to be in joint possession along with them of the entire land does not make it none the less a question of dispute of actual possession than if each party claimed exclusive possession of the entire area and this does not make section 145 inapplicable to the case The facts of this case, however, are not in any way similar to the case in hand. Otherwise also I feel, leaving aside the various judgments of the other High Courts, I have to go by the decision of this Court in Harbans Lal''s case (supra).

Mr. Mukerjee, Learned Counsel for the petitioner urges with some amount of vehemence that even in a situation as in the present case, the right course to be adopted by the Magistrate was if he otherwise felt so satisfied to initiate proceedings u/s 107, Criminal Procedure Code For this proposition he again relies on two judgments of this Court in Des Raj v. Sat Pal alias Satnam (1973)75 P.L.R. 57, and Bhan Singh etc. v. The State of Punjab etc. 1976 Ch.L.R. 85. The Learned Counsel for the respondents, however, points out that these two jugdments of this Court stand overruled or atleast dissented from by a later Division Bench of this Court in Mohinder Singh v. Dilbagh Rail (1976)3 Cri. L.T. In the earlier two judgments what had been held was that once the parties to a litigation u/s 145, Criminal Procedure Code, had already gone to the civil Court for the determination of their rights with regard to the subject-matter in dispute, the Magistrate would not have any jurisdiction to proceed in the matter u/s 145, Criminal Procedure Code. No doubt this proposition laid down in these judgments has not strictly been approved by the above noted Division Bench judgment, yet this judgment does not in any way dissent from or disagree with the ratio of the two judgments when these lay down that u/s 145, Criminal Procedure Code, a duty is enjoined upon the Magistrate to see that the parties who have a civil dispute pending, do not take the law into their hands and commit a breach of the peace. This duty is to see that the parties actually go to a civil Court and not fight about the land or the house. If the parties have already gone there, the Magistrate has no longer any duty to perform except to proceed u/s 107, Cr. P.C. Actually sub-section (10) of section 145 saves and impliedly suggests the following of such a course. To me also it appears fair and judicious that in the given situation of this case the best course to be adopted by the Magistrate was to proceed u/s 1 07 instead of proceeding u/s 145. Cr. P.C.

In the light of the discussion above. I allow this petition, quash the two impugned orders Annexures P. 4, and P. 5 passed by the Sub Divisional Magistrate on October 3, 1980 u/s 145(1) and 146 of the Code and all other proceedings in pursuance thereof. As already indicated this would not, however, debar the learned Magistrate to proceed in the matter u/s 107, Criminal Procedure Code if he so otherwise choose.