Major Singh vs Sukhdev Singh

G.R. Majithia, J.

The petitioners have moved this petition for quashing the order dated May 20, 1991 passed by SubDivisional Magistrate, Malerkotla. The learned Magistrate ordered the attachment of the property under Section 146 of the Code of Criminal Procedure and appointed the Circle Revenue Officer (N.T. Ahmedgarh) as official Receiver to take possession of the property in dispute.

The petitioners filed a suit for permanent injunction restraining respondent No. 1 from interfering with the possession over the disputed land and also the electric motor installed thereon. The suit was filed during summer vacation and the learned District Judge passed the following order :

"Arguments heard on the application filed by the plaintiff/applicant, under JUDGMENT 39 Rules 1 and 2 C.P.C. The report of the Local Commissioner has been filed. A perusal of the same shows that no''Khal'' from Khasra No. 91 to Khasra No. 97 at the spot. Furthermore, the copies of the "Jamabandi" and "Khasra Girdawari" upto date show that the plaintiff is in exclusive possession of the suit land. Prima facia, therefore, a case is made out to issue an ad interim injunction against the defendant respondent. The defendantrespondent is, therefore, restrained till further orders, from interfering in the possession of the plaintiffapplicant over the suit land and further he is restrained from digging any "Khal" from Khasra No. 91 to 97. The compliance of JUDGMENT 39 Rule 3 C.P.C be made by 22.6.90. Notice of this application be issued to the respondent on deposit of P.F. for 17.7.90 on which date, the parties shall appear before the learned SubJudge Ist Class, Malerkotla."

The order has not been vacated while the learned Subordinate Judge is seized of the suit. Respondent No. 1 also filed civil suit No. 960 of 14.3.90 in the Court of Senior Subordinate Judge, Malerkotla. Along with the suit, an application for temporary injunction was moved for restraining the petitioner from interfering in his possession over the suit land and also the electric motor installed thereon. The trial Judge appointed the Local Commissioner to visit the spot and report with regard to the factual position as to which of the parties was in actual physical possession. The Local Commissioner submitted his report. The same reads as under :

"Sir, I inspected the spot today on 14.6.90 according to the orders of the Court and saw the disputed motor and bore at the spot. I called the Halqa Patwari who prepared the copy of Akas Latha, which is attached with the report. Patwari gave the identity of Khasra No. 91 and 97 at the spot. An electric motor is existing in Khasra No. 91 which has been shown as marked "A" in the Akas Latha. The kotha of that motor was with Major Singh. Major Singh and Surjit Singh are in possession of the said motor. They irrigate from here Khasra Nos. 93, 94, 95, 96 and some part of Khasra No. 929. From this motor, no Khal leads for watering Khasra No. 97. There is a bore in Khasra No. 97 which has been shown and marked "B" on the Akas Latha, which is existing and in a working condition. The well of it has been deepened and constructed new. The construction seems to be made prior to twothree days. The present people at the spot told that Sukhdev Singh does not irrigate Khasra No. 924 which is in possession from this motor. The list of the respected persons present is attached here with the report. Report of the presence of the Patwari is also attached with the report. Hence report is presentrd."

Respondent No. 1 was not satisfied with the orders passed by the Civil Court. He moved a application before the SubDivisional Magistrate for initiating the proceedings under Section 145 of the Code of Criminal Procedure. The impugned proceedings under order has been passed in those proceedings. The order cannot be sustained for the reasons that the Civil Court is already seized of the matter. The subject matter in dispute before the Civil Court is identical with the one pending before the SubDivisional Magistrate. The proceedings under Section 145 of the Code of Criminal Procedure were initiated after the filing of the suit referred to above. The proceedings under Section 145 of the Code of Criminal Procedure cannot continue in view of the fact that the Civil Court is already seized of the matter. The initiation of the proceedings under Section 145 Cr.P.C. is gross abuse of the process of Court. The order under challenge is quashed. However, I leave it open to the respondents to move the Civil Court who is already seized of the matter for redressal of his grievance if any.

JUDGMENT accordingly.