Deepak Kumar and anr. vs State of Haryana and ors.

J. S. Sekhon, J.

Deepak Kumar and Dharminder petitioners have filed this petition under section 482 of the Code of Criminal Procedure, 1973, hereinafter referred to as the Code, for quashing the orders Annexure P. 1 and P. 2 of the Executive Magistrate in proceedings under section 145 of Code whereby the land in dispute was ordered to be attached on the complaint of Jagir Singh, Respondent No. 2 in the present petition. The learned counsel for Jagir Singh, Respondent No. 2 has raised a preliminary objection that these two petitioners are not party to the proceedings under section 145 of the Code and thus have no locus standi to file this petition, especially when if they are interested party, can approach the Executive Magistrate for becoming party under the provision of section 145(5) of the Code.

It is not disputed that the land in dispute belonged to Nanak Chand (since dead). Deepak Kumar petitioner is the daughter''s son of aforesaid Nanak Chand while Sanjeev Kumar is the grandson of aforesaid Nanak Chand. Sanjeev Kumar during the lifetime of his grandfather Nanak Chand obtained a decree in his favour regarding the ownership of the land. Nanak Chand challenged that decree during his life time and after his death Deepak Kumar filed a separate suit challenging that decree contending that he had become owner of the land on the basis of the will executed by Nanak Chand. That suit is still pending. Deepak Kumar petitioner in this petition also filed a suit for a permanent injunction against Sanjeev Kumar and others and the Civil Court vide its order dated 24 882 (Annexure P. 5) restrained Sanjiv Kumar and others from interfering with the possession of Deepak Kumar over land in dispute. As per the case of the respondent, aforesaid Sanjiv Kumar mortgaged this land with possession to Respondent No. 2 on 4.5.1987. Jagir Singh, Respondent No. 2 claims to be in actual possession of this land since then.

In view of the facts reproduced above, there is no dispute that Deepak Kumar petitioner is certainly an interested party in the controversy. Dharminder Petitioner No. 2 had entered into agreement with Nanak Chand to purchase this land. Thus, it can be well said that he is also an interested party. These two persons should have approached the trial Court for getting the modification of the impugned order under sec. 145(5) of the Code, but instead of doing so, they have approached this Court for quashment of the proceedings under section 482 of the Code. In other words, it can be well said that these petitioners have tried to convert the High Court into a trial Court.

Subsection (5) of section 145 of the Code provides as under :

"Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but subject to such cancellation, the order of the Magistrate under subsection (1) shall be final."

A bare glance through the same leaves no doubt that any interested party can approach the Executive Magistrate in order to show that no dispute existed regarding the possession of the land etc. and that the initiation of proceedings under section 145 of the Code is not called for. Thus, these petitioners are directed to approach the trial Court to get the impugned order modified and the trial Court is directed to dispose of such petition within one month from the date of its institution by taking into consideration the factum of pendency of civil litigation between the parties and that Deepak Kumar petitioner had already procured the stay order in his favour for restraining Sanjeev Kumar and others from disturbing his possession over the disputed land.

Consequently, for the reasons recorded above, no interference is called for at this stage in the impugned order of the trial Court by invoking the provisions of section 482 of the Code.

This petition stands disposed of accordingly.