Sadhu Ram vs State of Punjab and ors.

G. S. Chahal J.—Sadhu Ram, petitioner, by means of this petition under Section 432 Cr. P. C. seeks quashing of the proceedings under Section 145 Cr. P. C. and order dated June 20, 1990 passed by the Executive Magistrate and the police report dated May, 22, 1990.

The dispute relates to the land measuring 33 kanals 4 marlas situate at village Gaunspur, Tehsil and District Ludhiana. The police had reported vide report Annexure P that parties No. 1 (representing Sadhu Ram and Surjit Singh) and No. 2 (representing Bawa Ram) were laying their claim on the land measuring 33 kanals 4 marlas, which belongs to the Provincial Government and the dispute relates to the rights of cultivating this land. That suits had been filed with respect to this land, but the land was being cultivated sometimes by Bawa Ram and sometimes by Sadhu Ram. This land has not been allotted to anyone. Bawa Ram had applied to the Tehsildar, Ludhiana for corrections of Girdawaries and none of the parties had any solid proof of the right to till the land and there was apprehension of breach of peace and as such action be taken. Acting on this report, the learned Executive Magistrate, Ludhiana, passed order dated 8690 Annexure P.S. calling upon the parties to appear before him and file the written statements.

According to the petitioner, in the year 1975, he had filed a civil writ petition seeking mandamus against the Punjab State directing them to transfer the land measuring 50 kanals 4 marlas to the petitioner in the terms of a press note issued by the government conferring the proprietary rights upon the occupants of the evacuee property. During the pendency of the writ petition, petitioner was dispossessed, but the possession was restored and the Deputy Advocate General gave an undertaking on 9.12.75 in the Court that the petitioner would not now be dispossessed. This writ was No. 5880 of 1975. The fackum of this writ and the proceedings taken have not been disputed though the respondent had felt satisfied by stating that he had no knowledge of that writ and the proceedings. The petitioner brought a civil suit No. 196 dated October 5, 1983 and sought a declaration that he was in cultivation possession of the land since 1972 and the stray entries in favour of Bawa Ram were liable to be ignored and also sought a permanent injunction restraining Bawa Ram from interfering with his possession and also from dispossessing him by force or in. any other manner. This suit was decreed on September 16, 1986 and copy of the judgment is Annexure P1. Bawa Ram filed an appeal but the same was also dismissed on 15.9.87. That subsequently Bawa Ram filed a suit for permanent injunction and obtained an ex parte interim injunction by concealing the material facts. Sadhu Ram, having applied to the Court for setting aside that order'' the ex parte. interim injunction was vacated vide order dated September, 1,1988. '' These facts have not been disputed in the return. The plea taken is that Bawa Ram had been proceeded against exparte and that the decree was obtained in collusion with one Sucha Singh. The fact of filing of the appeal was, however, admitted. He also admitted that the injunction had been refused to him in the suit filed by him. He also admitted the further plea of the petitioner that the respondent had filed another civil suit, but the same had been dismissed as withdrawn.

Annexure P1 is the decree passed in suit interpartes which had been decreed in favour of the plaintiff. Even though the respondent was proceeded ex parte, it will be deemed to be a binding decree against him. Admittedly the appeal preferred by him had been dismissed. The respondent had then brought a suit and obtained an adinterim injunction which was vacated vide order dated September 1, 1988 (Annexure P2). Another suit instituted by the respondent had been dismissed as withdrawn vide Annexure P3. The proved facts on record are thus to the effect that the Annexure P possession of the petitioner was restored to him by the State during the pendency of the civil writ petition and the government had given an. under. taking not to disturb him. Since Bawa Ram had threatened the possession of the petitioner, which necessitated the institution of a suit by the petitioner, which ultimately was decided in his favour and be was held to be in possession of the land and the defendant was restrained from interfering With his possession. In the subsequent suits by the respondent, one was dismissed as withdrawn and in the other the Injunction order was vacated. The plaintiff having been proved to have established his right to possession in a civil decree after this possession had been restored to him by the Provincial Government, the presumption has to be drawn that he continues to be in possession since, thereafter. This presumption has been further fortified with the two subsequent civil proceedings. The criminal court will be bound by these findings of the civil Court. If Bawa Ram is interfering with the possession of the land as noted by the police, the same amounts to an act of trespass. The police should have moved into action against Bawa Ram and the Magistrate could have taken proceedings under Section 107 Cr. P. C. if there was apprehension of breach of peace. His calling upon the petitioner to establish his title or possession again can hardly be justified. At last how many times the petitioner has to prove his lawful possession over the land in dispute. He is not obliged to satisfy each and every forum of his lawful possession ? In this situation, the proceedings initiated against the petitioner for taking action under Section 145 Cr. P. C. amounts to abuse of process of the Court.

I hereby accept the petition and quash the police report Annexure P4 and order of the Executive Magistrate Annexure P5. These proceedings thus stand terminated.