Krishan Chand and others vs Sadhu and others

J.M. Tandon, J.—Risala (now deceased) owned about 511/2 Killas of land in villages Kaimla and Harsinghpura, tehsil and district Karnal. He died in November, 1979. On 24th January 1970 Risala suffered a decree in favour of his wife Jiwani (now petitioner) to the extent of half of his land. Krishan Chand and Prem Chand, petitioners, are sons of Prithi Singh brother of Jiwani. In April, 1976, Risala and Jiwani suffered decrees with respect to their land in favour of Krishan Chand and Prem Chand. After the passing of the decrees in favour of Krishan Chand and Prem Chand and during the life time of Risala, Chhaju father of Sadhu, Om Parkash and Indra, respondents, filed a declaratory suit assailing the decrees passed in favour of the petitioners in 1970 and 1975. The suit was withdrawn by Chhaju as he did not happen to be the 5th degree collateral of Risala. After the death of Risala, Lachhmi respondent filed a suit alleging that she was cowidow of Risal and that she was entitled to half of his property. Lachhmi also assailed that the decrees passed in favour of Jiwani and her nephews. Her suit was dismissed. She has filed an appeal which is stated to be pending.

Sadhu, Om Parkash and Indra respondents filed a suit for declaration in 1984, that they are in possession of the land of Risala as his heirs. In that suit they prayed for interim order and the trial Court directed that status quo about possession be maintained. This suit has been filed against the petitioner and it is still pending.

In April, 1984, Sadhu, Om Parkash and Indra respondents filed an application against the petitioners and Lachhmi respondent praying that proceedings under section 145 of the Code of Criminal Procedure be initiated and they be declared to be in possession of the land in dispute. They alleged that they are in possession of the land and Krishan Chand and Prem Chand petitioners have wrongly managed to get entries made in their names in the Girdawaries on the basis of the mutation sanctioned in their favour on the basis of civil Court decrees. They also stated that they have approached the competent authorities for the correction of the Khasra Girdawaris. The Sub Divisional Magistrate sent for the report of the Police who reported on 1st July, 1984 that Om Parkash and Sadhu respondents are desirous of taking possession of the land in dispute. The SubDivisional Magistrate passed the two impugned orders P3 and P4 under Sections 145 and 146 of the Code respectively. The petitioners have filed the present petition under section 482 of the Code, praying that the impugned orders, Annexures P.3 and P.4 be quashed.

In the Jamabandi for the year 197879, Krishan Chand and Prem Chand petitioners are shown owners in possession of the land in dispute. They are again shown in possession of this land in the Khasra Girdawaris. The SubDivisional Magistrate obtained the report of the Police after Sadhu Ram etc. respondents filed and application for initiating proceedings under section 145 of Code. The Police reported that Sadhu Ram etc. respondents, were desires to take possession of the land on getting some opportunity. It means that the Police reported that the land in dispute was not in possession of Sadhu Ram etc, respondents and that they wanted to take its possession obviously from Krishan Chand and Prem Chand petitioners. Sadhu Ram etc., filed a suit for a declaration in 1984 and the Civil Court directed that status quo about possession be maintained. In view of the entries in the revenue record, as also the report, of the Police, there was no justification whatsoever to infer that there was any danger of breach of peace over the possession of the land in dispute from the side of the petitioners. The Sub Divisional Magistrate has stated in the impugned order Annexure P4 that the report of the local Police clearly shows that there is an imminent danger of breach of peace between the parties over the possession of the land in dispute. This inference, to say the least is not warranted from the Police Report. The contention of the learned counsel for the petitioners that the impugned orders have been passed by the learned SubDivisional Magistrate without application of mind and further the proceedings initiated by Sadhu Ram etc., respondents, is an abuse of the process of the Court, must be upheld.

In the result, the petition is allowed and the impugned orders, Annexure P3 and P4, are quashed.