Ram Subhag Pandey vs State of U.P. and Others

S.K. Agarwal, J.—Heard learned counsel for the applicant and learned AGA.

I have gone through the annexures appended to the affidavit filed in support of the present application u/s 482, Cr.P.C.

The brief facts of the case are that an application was moved by opposite party No. 3 Sada Nand against his own brother that there is a dispute with regard to the partition as well as possession of the holding between them. Even the police report also discloses clearly that there exists a dispute for partition as well as possession between these brothers. The police report, however, also indicate that the disputed property was in possession of applicant. The applicant was holding entire joint property for himself as well as on behalf of his brother since it was not partitioned. Even the order of learned S.D.M. u/s 145(1), Cr.P.C. and the order u/s 146(1), Cr.P.C. are also indicative of the same situation.

The proceedings u/s 145(1), Cr.P.C. can be initiated where possession of some immovable property is subject matter of dispute between the parties. It cannot be initiated where the dispute between the parties is regarding the possession of a joint holding or property jointly possessed or possessed by one person on his behalf and for others as well. In these proceedings the opposite party has to come with a clear allegation that he was in possession over the property in dispute and other party is trying to disturb his peaceful possession. Apprehension of breach of peace on that count is yet another circumstance under which such proceedings can be drawn. The law with regard to the joint holding is very clear. The opposite party No. 3 has already filed a suit for partition of the disputed property. In these circumstances the fact that this property is being held jointly by the applicant for himself as well as for his brother is not in dispute. In these circumstances, in my opinion the present proceeding u/s 45(1), Cr.P.C. is wholly misconceived. No proceedings u/s 145(1), Cr.P.C. can be allowed to continue if there remains no dispute regarding possession. Once it is found that the property is joint holding and parties are trying to settle the issue of partition between them use of provision of Section 145, Cr.P.C. is clearly an abuse of process of the Court. One party was in exclusive possession over the whole property to the complete exclusion of the other. He may have the right to share the fruits but it does not create any right in him to take recourse to this Section. The other party who is trying to have the possession of his share may take recourse to proper forum i.e. competent civil Court.

In the circumstances this application is allowed. The order dated 11-8-2000 passed by S.D.M. Campearganj, Gorakhpur u/s 145(1) Cr.P.C. and the order dated 11-8-2000 passed u/s 146(1), Cr.P.C. by the same Magistrate are hereby quashed. The proceeding is dropped. The Magistrate will release the property in favour of the applicant.