Kalu Ram and ors. vs Harish Kumar and ors.

Ujagar Singh, J.

Executive Magistrate/City Magistrate, Sirsa, took cognizance on a Kalandara presented by the police under Section 145, Cr.P.C., on Ist June, 1987. Both the parties were summoned and directed to file their reply. While proceedings under Section 145, Cr.P.C., were pending, the Magistrate passed an order dated 12th August, 1987, attaching the agricultural land in dispute and appointing Tehsildar, Sirsa as Receiver to manage the same and maintain its accounts under the rules. The case was adjourned for recording of evidence for 7th September, 1987. It is mentioned in the order that the first party (the petitioners herein) were adamant to occupy their previous land once again and did not want to accept the exchanged land; that the second party (the respondents in this petition) was preventing the first party from taking possession; that the second party relied on an agreement with regard to exchange of land executed by the parties on 8th October, 1986 in pursuance of which possession of agricultural land in dispute was taken by the second party and the first party had taken possession of the land given by the second party in exchange.

This order has been challenged by the petitioners, i.e., the first party in the proceedings, on the ground that they had filed a suit for permanent injunction restraining the second party, i.e. the respondents, from interfering in any manner with their cultivating possession and ownership rights. In that suit, an application under O. 39, R. 1 and 2, read with section 151, Code of Civil Procedure (for short, C.P.C.) was filed and the learned SubJudge Ist Class, Sirsa, passed an order directing the parties to maintain status quo with respect to the possession of the land in dispute on 29th/30th April, 1987. The argument is that since the Civil Court was seized of the matter and had passed an order of status quo no proceedings can be initiated under Section 145, Code of Criminal Procedure (for short, Cr.P.C.).

After notice, respondents No. 1 and 2 filed a reply and asserted as under :

"The true facts are that the petitioners Kalu Singh and others exchanged their rural agricultural land, including the land in dispute measuring 74 Acres 4 Kanals 11 Marlas alongwith tubewell, etc., and the built up houses situated in village Mangala, Tehsil and District Sirsa, with the rural agricultural land measuring 87 acres alongwith tubewell engine as also a pacca house and one three marla vacant plot situate in village Arniwala Sheikh Subhan, Tehsil Fazilka, District Ferozpur. On the basis of this exchange, the petitioners took possession of the land of the answeringrespondents and others namely Mehnga Ram son of Rulia Ram ; Har Kishan Lal, Harish Kumar sons of Mehnga Ram as also the house and the tubewell engine as well as vacant plot. Similarly the answeringrespondents alongwith other transferees took actual physical possession of the property of the petitioners in village Mangala. The answering respondents and other transferees named in the deed of exchange are in actual physical possession of the land in village Mangala and the petitioners are in actual physical possession of the property of the answeringrespondents in village Arni Wala Seikh Subhan Tehsil Fazilka, District Ferozepur ......... A perusal of the agreement of exchange would show that the parties exchanged possession of the respectiveproperties.

That the petitioners even though had entered into exchange with the answeringrespondents alongwith others regarding their property and had exchanged possession also but at a later stage changed their mind and tried to wriggle out of the agreement which led to a dispute between the parties. Consequently, they appointed Shri Krishan Baldev son of Buta Ram of Sirsa, Shri Phuman Singh Sarpanch of village Khawaja Khera, Shri Bachan Lal Chairman and Sarpanch Gram Panchayat village Chamel, Chaudhry Ram Chand son of Wasawa Ram, resident of village Nanak Pur Tehsil and District Sirsa as arbitrators through mutual consent for settlement of the dispute. The arbitration agreement ......... is attached as ........... A perusal of this document would also show that the parties had exchanged possession of the respective properties.

That the arbitrators on appointed by the parties went into the matter and two of the arbitrators vide their decision dated 27.5.1987 came to the conclusion that the parties after exchange have taken possession of the respective properties on the basis of agreement of exchange and they have been in possession for the last about one year and are cultivating the same and both the parties have harvested two crops each. The arbitrators named Krishan Baldev Lambardar, Ahmedpur and shri Ram Chand former Panch, Nanakpur have held that exchange is genuine and there is no element of fraud in the exchange. They further held that their feeling is that the first party Kalu Singh and Sardul singh, etc. (petitioners) have become greedy on account of which they did not wish to complete the transaction of exchange. Therefore, we all four arbitrators cannot give a unanimous decision and that the two of them express the opinion that Shri Kalu Singh etc. first party want to back out of the agreement of exchange. A copy of the award dated 27.5.1987 is attached as ........ The fact that the petitioners took possession of the property of the answeringrespondents in village Arni Wala Sheikh Subhan and the answeringrespondents took possession of the property of Kalu Singh etc. in village Mangla is fully evident from the fact that after taking possession of the property of the answeringrespondents, the petitioner have further sold off for a consideration of Rs. 57,000/, the original house of the answering respondents consisting of seven pucca room, kitchen, verandah, etc., in favour of Shri Kuldip Singh, Hardeep singh, Jagdish Singh etc and had handed over the possession of the house to the vendees. ..........

The said respondents have attached agreement of exchange (Annexure R1/1), arbitration agreement (Annexure R1/2), awared of the arbitrators (Annexure R1/3) and an affidavit on behalf of Kalu Singh and others (Annexure R1/4), in support of their pleadings. From these documents it is clear that both the parties exchanged their lands and other property with each other. Dispute was referred to the arbitrations and vide award Annexure R1/3, the factum of the agreement of exchange, and acting thereupon by entering into possession by the parties have been held to be correct. Further fact has been brought to light that a house comprising an area of 15 marlas and consisting of seven pucca rooms, verandah, kitchen one bath room, one big iron gate, one handpump fitted with electric motor, which were earlier owned by the respondents have been agreed to be sold by the petitioners/first party for a consideration of Rs. 67,000/. The affidavit further shows that the whole of the amount was received by the petitioners (the fist party) on 16th January, 1987. This affidavit clearly shows that the petitioners took possession of the property earlier owned by respondents No. 1 and 2 and others.

On 2nd November, 1987, arguments were heard and the counsel for the said respondents laid much stress on the said documents produced by him. When confronted with the factum of taking of the possession of respective lands in exchange, as also an affidavit showing sale by the petitioners of the house property for a consideration of Rs. 67,000/, the counsel for the petitioners wanted an adjournment to seek instructions from the petitioners, and the case was accordingly adjourned to 11th November, 1987. Again on the lastmentioned date, he got another adjournment for the purpose and the case was adjourned to 23rd November, 1987. On that date also, the learned counsel wanted more time and the case was then adjourned to Ist December, 1987. The case was thereafter laid before S.S. Sodhi, J., who vide order dated Ist December, 1987, desired this matter to be placed before me as the matter had been considered by me. Ultimately, on 8th December, 1987, the case was adjourned to this date. On all these dates the counsel was not able to deny the factum established by the said documents and he only laid emphasis on the point that when the Civil Court had passed an order of status quo, proceedings under Section 145, Cr.P.C., cannot be initiated and that the magistrate had no jurisdiction to attach the property under section 146, Cr.P.C.

Counsel for respondents No. 1 and 2, on the other hand, argued that the provisions of Section 482, Cr.P.C., were not attracted to this case for quashing the impugned order. Much emphasis was laid that these provisions are, as a matter of fact, meant for securing the ends of justice. On merits, he submitted that the order of status quo does not decide as to which party was in possession and when the documents placed on the file by the said respondents clearly show that the petitioners are not in possession of the land in dispute after the agreement of exchange, their claim for possession can not be upheld. It is further submitted that vide Annexure P2, the petitioners have also admitted that Khasara Girdawari with regard to Rabi crop of 1987 was clearly in favour of the said respondents and others, and that the petitioners have sought a declaration that Girdwari of that crop was wrong and illegal.

The documents placed on record by the said respondents, read with the claim in the suit P 2, leave no room for doubt that after exchanging the possession of the properties, girdawari thereto was entered admittedly in the names of the said respondents. There is no doubt, therefore, that injustice has been caused to the petitioners by the impugned orders. Apart from this the provisions of Section 482 Cr.P.C., which can be invoked for securing justice, the same are also meant for preventing abuse of the process of law, and it has not be seen in the present case whether there has been any abuse of the process of law or not. Counsel for the said respondents has relied upon Jagdish alias jagdish Kumar v. Sub Divisional Magistrate, 1987(1) Recent Criminal Reports 433 : 1987(1) PLR 206 , Mohinder Singh v. Dilbagh Rai, (1976) 78 PLR 803 and Rampal v. Harish Chander, 1987(2) Recent Criminal Reports 65.

In Jagdish alias Jagdish Kumar''s case (supra), Pritpal Singh, J., relying on Mohinder Singh''s case (supra) distinguished the case of Ram Sumer Puri Mahant v. State of U.P., 1985(2) Recent Criminal Reports 43 (SC) : AIR 1985 SC 472 , holding that therein finding about possession had already been given by Civil Court and matter was pending in appeal. The following observations were then made :

"That present case falls under the third type of cases. Here maintenance of status quo during the pendency of the civil suit has been ordered because the Court is not prima facie satisfied about any party being in possession of the land in dispute. In this situation if the Magistrate, from the police report, is satisfied that there is likelihood of breach of the peace, he is competent to proceed under Sections 145 and 146 of the Code. Thus, according to the law laid down by the Division Bench in Mohinder Singh''s case (supra), the impugned proceedings under Sections 145 and 146 taken by the SubDivisional Magistrate, Panipat, cannot be quashed simply because of the pendency of civil suit filed by respondents Nos. 2 to 4 regarding the same land."

In that case also, inspite of the order of status quo passed by the Civil Court, the learned judge made the following observations :

"In the instant case, none of the parties is found to be in prima facie possession of the land in dispute by the Civil Court. In such circumstances, the proceedings taken by the Sub Divisional Magistrate under Sections 145 and 146 of the Code, cannot be deemed to be parallel proceedings envisaged by the Supreme Court."

The judgment in Jagdish alias Jagdish Kumar''s case (supra) was relied upon by I.S. Tiwana, J., in Rampal''s case (supra) where the principle laid down in Jagdish Kumar''s case (supra) has been reiterated.

In view of the foregoing discussion, this petition has no force and is dismissed. The Executive Magistrate/City magistrate Sirsa, is, however, directed to decide the question expeditiously, and at any rate, before the harvesting of Rabi. The order passed under section 146, Cr.P.C., for attachment of the property, is, thus, maintained.