Mahipat vs Nathuram and Others

D.K. Paliwal, J.—This petition has been preferred u/s 482 of Cr.P.C. for quashing the order dated 20.09.2010, passed by IIIrd Additional Sessions Judge, Bhind in Criminal Revision No. 161/2010, whereby the order dated 19.08.2010 passed by the SDM, Bhind in Case No. 184/2009 X 145 has been affirmed. The brief facts of the petition are that petitioner has filed an application u/s 145 of Cr.P.C. stating that the petitioner is the sole owner of the land bearing survey Nos. 455, 458, 487, 488, 518, 519 & 1324 situated at village Khera Shyampura circle Umari, District Bhind and he is in its possession. Respondent No. 1 has illegally handed over the possession of the land bearing survey No. 1364 area 0.250 hectare to respondents No. 2 & 3 by executing the agreement dated 19.11.2009. It is alleged that in the backdrop of the agreement respondents No. 2 & 3 have started keeping their cattle and bricks while crop of the petitioner is standing on the filed. It was prayed that respondents be directed not to raise any construction and to maintain status-quo. Learned SDM after hearing the parties directed the parties to maintain status-quo vide order dated 30.12.2009. It is further submitted that the learned SDM has disposed of the application of the petitioner vide order dated 19.08.2010 holding that the petitioner got partitioned the land from Tahsil Court, against which the appeal is pending before the Additional Commissioner, Gwalior, in which stay has been granted. In such situation the partition has not attained finality and the land belongs to the joint khata. Therefore, it is not proper to proceed u/s 145 of Cr.P.C. and thus, application has been dismissed holding the same being not maintainable and the stay order was also vacated. The petitioner preferred a revision petition before the learned IIIrd ASJ, Bhind, which has been dismissed holding that there is a stay from the Additional Commissioner Court, the proceeding u/s 145 of Cr.P.C. are not maintainable.

It is submitted that the learned Court below has committed grave error in holding that the application u/s 145 of Cr.P.C., is not maintainable. The provision of Section 145 of Cr.P.C. expressly provides that if there is likelihood of breach of peace due to land or water dispute proceeding can be started under this provision.

Learned counsel for the respondents submits that the partition has not attained finality, and the appeal is pending against the order of Tahsil Court, therefore, there is no scope for any interference in the impugned order.

In view of the submission of the learned counsel for the parties, I have perused the record.

Section 145 of Cr.P.C. provides as under:-

Procedure where dispute concerning land or water is likely to cause breach of peace:-

(1) Whenever an Executive Magistrate is satisfied from a report a police officer or upon other information that a dispute like to cause a breach of the peace exists concerning and land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attain his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

(2) For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.

(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to posses the subject of dispute, pursue the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-s (1), in possession of the subject of dispute:

Provided that, if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed, within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-s (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-s(1).

(5) 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 sub-section (1) shall be final.

(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-s (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-s(4), may restore to possession the party forcibly and wrongfully dispossessed.

(b) The order made under this sub-section shall be served and published in the manner laid down in sub-s(3).

(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding, and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representative of the deceased party shall be made parties thereto.

(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may made an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceedings thereof, as he thinks fit.

(9) The magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under S. 107.

It is not disputed that the petitioner and deceased Nathuram were real brothers. From the order passed by the Additional Tahsildar, against which appeal was preferred before the SDO, Bhind and vide order dated 31.07.2000, passed in Case No. 30/99-2000/, appeal was dismissed. From perusal of Annexure R/3, it is appears that the petitioner preferred an appeal before the Additional Commissioner, Chambal Division, Morena, against the order passed by the SDO, Bhind in Case No. 30/99-2000 and the same has been dismissed vide order dated 22.03.2002 passed in Appeal No. 2971/2000-2001.

From the perusal of Annexure R/4, it appears that the petitioner has filed the Civil Suit in the Court of IIIrd Civil Judge, Bhind, which was registered as Civil Suit No. 127-A/06, in which the petitioner sought partition as well as declaring the order as null and void, passed by the Additional Commissioner, Chambal Division, Morena in Case No. 297/2000-01. The suit was dismissed against which the petitioner has preferred an appeal bearing C.A. No. 04/2007 before the VIIth Additional District Judge, Bhind and the same was dismissed holding therein that the order dated 21.07.1997 passed in Case No. 4/96-97 has been set aside and the order has been upheld also in appeal, therefore, the learned trial Court has not committed any error in dismissing the suit.

Annexure R/4, shows that the petitioner has preferred Second Appeal No. 572/2007 before this Court, which has been dismissed summarily vide order dated 15.01.2010.

Thus, in view of the aforesaid order it becomes clear that the order passed by the Tahsil Court on 21.07.1997 on the strength of which the petitioner claims title and possession over the suit land has been set aside right from the SDO upto to Additional Commissioner, Chambal Division, Morena. Not only this stand of the petitioner does not find favour in civil litigation, right from the Court of Civil Judge, IInd then the Court of ADJ, Bhind and finally from this Court.

The primary object of Section 145 of Cr.P.C. is to prevent the breach of public peace arise in respect of the dispute relating to the immovable property. In order to achieve the object, the provision empowers the Magistrate to settle the matter summarily so far as the Criminal Courts are concerned and to maintain status-quo until the rights of the parties are decided by the competent Court.

Learned counsel for the petitioner placed reliance on the decision rendered in the matter of Prakash Chandra Prasad Vs. State of M. P. and Others, wherein while dealing with the objective of Section 145 of Cr.P.C., it has been held as under:-

The primary objective of section 145, Criminal Procedure Code is the prevention of the breach of the public peace arising in respect of a dispute relating to immovable property. In order to achieve the object, the section enables the magistrate to settle the matter temporarily so far as the criminal Courts are concerned and to maintain the status quo until the rights of the parties are decided by a competent Court. An order made u/s 145, Criminal Procedure Code deal only with factum of possession of party as on a particular day. The order is subject to decision of Civil Court. The Civil Court has jurisdiction to give finding different from that which the Magistrate has reached. In the case of Mahant Ram Saran Dass v. Harish Mohan and another, (2001) 10 SCC 758 the Apex Court held that where civil suit for declaration of title was already pending and Court had passed order of injunction, the Magistrate cannot entertain application u/s 145, Criminal Procedure Code. fact that applicant before Magistrate was not arrayed as party before Magistrate would be immaterial..

In the instant case the Civil Court has given its finding. Therefore the learned Sub Divisional Magistrate is absolutely correct in holding that the application is not maintainable. The petition is devoid of any merits. Hence dismissed.