Mukhtiar Singh and ors. vs Sub Divisional Magistrate, Guhla and ors.

Ujagar Singh J.—This petition has been filed for quashing of the order dated September 28, 1987, passed by the Sub Divisional Magistrate, Guhla, on the complaint made by the Station House Officer,. Police Station Guhla, against the petitioners and respondent No. 4.

The police presented a Kalendra before the Sub Divisional Magistrate, Guhla, for proceeding under section 145 of the Code of Criminal Procedure. Both the parties the petitioners on one side as party No. 2 and respondent No. 4 on the other hand as party No. 1 and both the parties submitted their replies. After hearing the arguments, the learned Sub Divisional Magistrate come to the conclusion that the land in dispute belongs to Panchayat and party No. 2 (herein the petitioners) was in unauthorised occupation thereof. The Gram Panchayat after securing their ejectment from the competent Court had obtained actual possession of the disputed land and then gave the land on lease to respondent No. 4 and delivered him its possession at the spot. The petitioners submitted in their reply that the proceedings pertaining to delivery of possession and lease etc. were all bogus and Girdawri entries were all wrong as they have been in continuous possession of the said land for the last 20 years and are in possession even now. The learned Sub Divisional Magistrate ultimately was unable to decide as to which party was in possession of the land in dispute and since both the parties claimed to be in possession of the paddy crops standing thereon which was quite ripe and mature and ready for harvestering the learned Sub Divisional Magistrate formed an opinion that the existing position may give rise to a serious clash between the parties and therefore, he passed an order of attachment of the disputed land and appointed the Tehsildar as superdar thereof.

The petitioners have challenged the order under section 145 of the Cr.P.C. as also the order of ejectment under section 146 of the Code of Criminal Procedure on the ground that the petitioners had obtained a decree against respondent No. 3 the Gram Panchayat, copy of which is attached as Annexure P. 1. It is further averred the respondent No. 3 in clear disobidence thereof and in collusion with respondent No. 4 armed themselves with some bogus lease and threatened to disturb the peaceful possession of the petitioners. Thereupon the petitioners filed an execution application under JUDGMENT XXI Rule 32 of the Code of Civil Procedure against respondent No. 3 for disobedience and also filed another suit for permanent injunction impleading respondent No. 4 as well, copy of the plaint is attached as Annexure P. 2. The learned Sub Judge in that suit was pleased to issue a temporary injunction against respondent No. 3 and 4 directing them from dispossessing the petitioners. Copy of the order is attached as Annexure P. 3, which is said to be still inforce. It is stated further that Naib Tehsildar, Guhla, happened to inspect the spot in connection with correction of Khasra Girdawris and found the petitioners to be in possession and finally a report was made to the Collector as part of his comments in connection with transfer application. The remaining averments in the petition are affirmed.

In reply to the petition, respondent No. 1 has filed a reply stating that operation of the order dated September 28, 1987 under section 145 Cr.P.C. has already taken place on September 24, 1987, before the orders dated October 5, 1987, passed by this Court. It is, however, mentioned in reply that attachment had already been effected. The attachment has neither been set aside nor quashed. However, in view of the order of this Court, the proceedings were stayed by respondent on October 16, 1987. A reply has also been given by respondent No. 1 and the facts mentioned in the order have been repeated. Reply on behalf of Gram Panchayat (respondent No. 3) has been filed by way of an affidavit of Sub Singh, Panch. It is mentioned that the Assistant Collector First Grade found the petitioners to be in an unauthorised possession and ordered their ejectment and in addition the fine was imposed. It is asserted that in pursuance of the warrant of possession, respondent No. 3 was delivered possession on December 21, 1982.

I have heard the learned counsel for the parties and have also gone through the documents produce by them.

One of the petitioners has filed suit No. 247 of 1986 instituted on April 21, 1987 and copy of the plaint Ann. P. 2 has been produced and this shows that the petitioners filed a suit for declaration and permanent injunction as a consequential relief. Copy of the judgment in that suit has been filed which shows that the suit of Shera petitioner was decreed for permanent injunction restraining respondent No. 3 and one Phool Singh from interfering into the peaceful possession of the plaintiff over the suit land forcibly and illegally except in due course of law. Copy of the report dated November 18, 1987, made by the Assistant Collector 2nd Grade, Guhla, makes it clear that Shera petitioner had been in cultivating possession of the land in suit for a sufficiently long time. Annexure P. 1 is the decreesheet of the order of injunction referred to above. Another order Annexure P. 3 was obtained again by Shera one of the petitioners on April 13, 1987, wherein respondents No. 3 and 4 have been restrained from dispossessing Shera, one of the petitioners (plaintiff in the said suit) except in due course of law till further orders.

Reference to the aid documents makes it quite clear that the petitioners are in possession and they are supported by a decree of injunction and another order of injunction restraining respondents No. 3 and 1 from forcibly disposing the petitioners from the land in suit and this decree and the order are still inforce. In view of these two documents, the learned Sub Divisional Magistrate had no jurisdiction to pass an order under section 145 Cr.P.C. and thereafter an order under section 146 of the Code of Criminal Procedure. I, therefore, quash these orders and the proceedings started on a report (Kalendra) presented by the police. The parties are left to bear their own costs.