Saroj Gupta vs Nand Lal

M.L. Singhal, J.

This is Criminal Revision Petition No. 448 of 1997 filed by Smt. Saroj Gupta wife of Sudesh Kumar Gupta resident of near Rani Talab, Jind under section 379/401 of Code of Criminal Procedure against Nand Lal and others whereby she has prayed for the setting aside of the order dated 5.5.1997 passed by respondent Smt. Anita Yadav, the then Executive Magistrate, Jind as the same was passed by her in the absence of the petitioner, as the date announced to the parties was 12.5.97 for reply to the notice. She has also prayed that possession of the disputed kothi be restored to the receiver or to her.

Now the facts of the case as set out by revisionpetitioner Smt. Saroj Gupta :

On 16.1.1997, she entered into an agreement Annexure P2 wherethrough Nand Lalrespondent agreed to sell Kothi No. 246/5 for a sum of Rs. 10 lacs including the electric fittings etc. to her. A sum of 7,50,000/ was paid to Nand Lalrespondent by her and she took the possession of the Kothi on the same day. 31.1.1997 was stipulated as the date for the registration of the sale deed. Thereafter, in back date i.e. 17.2.1997, Nand Lalrespondent executed a sale deed in favour of his brother cousin respondentRoop Chand qua that Kothi for a sum of Rs. 3,20,000/. Respondent No. 2 alongwith some gundas in drunken condition came to the spot and attacked the petitioner and members of her family with a view to dispossess her from that Kothi. Petitioner reported the matter to the Police. Kothi was attached by City Magistrate, Jindrespondents No. 4. Case was pending before City Magistrate, Jind and the next date fixed was 12.5.97 for putting the reply to the notice. Smt. Anita Yadav respondent who was City Magistrate, Jind passed order annexure P/1 on 5.5.1997 without hearing her and gave possession of the Kothi to respondent No. 2 in her absence and now respondent No. 2 is about to sell the property to someone else. Smt. Anita Yadav, City Magistrate, Jinder respondent while passing the order annexure P/1 took shelter of order annexure P/3 passed by this court on 21.4.1997. On 31.1.1997, i.e. the date stipulated for the execution of the sale deed in her favour, the petitioner got her presence marked in the office of SubRegistrar. Annexure P/4 is her application on which Sub Registrar marked her presence. On 19.2.1997 Nand Lal got this sale deed registered with respect to that Kothi in back date i.e. 17.2.1997 in favour of Roop Chandrespondent, who is cousin in his relationship. Loss of stamp fee to the State was caused by understating the value of the Kothi in the sale deed. After the petitioner was dispossessed by respondent No. 2, she filed an application in the police station. On that application Kothi was attached vide order annexure P/5 by Executive Magistrate, Jind and it was ordered that Kothi will remain attached till the decision of the competent court in regard to the possession. Tehsildar/Receiver and others visited the Kothi with a view to attach it. A list of the belongings was prepared but did not enter in the attachment report as to from whom they had taken possession. They did not take the signatures of the petitioner on the list of the household goods prepared by them.

This was done by them with a view to favour respondents No. 1 and 2. Respondent No. 2 filed Criminal Misc. No. 8148 of 1997 in the High Court and before the High Court it was misrepresented that under a civil court order it was established that prima facie respondent No. 2 was in possession. The order of this court is annexure P/3 dated 21.4.1997 in which is noted the statement made by the counsel for Roop Chand that under a civil Court order it was established that possession was with Roop Chand and still the Executive Magistrate had attached the property without complying with the provisions of section 145/146 of the Code of Criminal Procedure. In fact no such finding had been recorded by any civil court. Smt. Anita Yadav passed the impugned order without hearing the petitioner and others. While passing the impugned order she took the shelter of order annexure P/3. On 21.3.1997, the case had been posted to 12.5.1997 for filing reply to the notice. For 5.5.1997, the case had not been fixed at all. Smt. Anita Yadav was under orders of transfer on 5.5.1997. Although she knew that she was under orders of transfer, she passed the impugned order on 5.5.1997 in favour of Roop Chandrespondent No. 2. The impugned order is bad as Smt. Anita Yadav took a false report from the police and also stated that she herself visited the spot and the persons present supported the possession of Roop Chand respondent No. 2. Fact is neither she nor any police official visited the spot. There was no question of any one visiting the spot as possession was with the receiver. Petitioner was never informed of any such spot inspection. Neither party had applied for spot inspection to Smt. Anita Yadav, Executive Magistrate, Jind.

Respondent No. 2 opposed this revision urging that petitioner had filed suit for permanent injunction against Nand Lal on 15.2.1997 restraining him from interfering with her possession of Kothi No. 246/5, Gandhi Nagar, Jind or alienating the same. Along with the plaint, she had made an application for the grant of temporary injunction. No order was passed by the court on that application. After she had failed to obtain an order of temporary injunction from the civil court, she approached the criminal court under Section 145 Cr.P.C. and on 27.2.1997, the order of attachment was passed and Tehsildar was appointed as Receiver. Proceedings under section 145 Cr.P.C. were not competent when question as to possession was pending before the civil court. Copy of plaint alongwith application under order 39 rules 1 and 2 read with section 151 CPC are attached as annexures R/2/1 and R/2/1/A. The agreement set up by Smt. Saroj Gupta is forged and fabricated. Nand Lal respondent never signed that agreement. His alleged signatures were got compared with his genuine signatures from handwriting expert in pursuance of the order of Civil Judge (Sr. Division), Jind and the handwriting expert gave opinion that the disputed signature was the result of traced forgery. The opinion of the handwriting expert is annexure R/2/2. Smt. Saroj Gupta could file revision against this order annexure P/1 in the court of Sessions Judge, Jind. The sale deed in favour of Roop Chand is valid and genuine. Roop Chand is a bona fide purchaser. It was denied that respondent tried to dispossess Smt. Saroj Gupta from the house in question. In fact, she was never in possession. Previous owner of the house was Sh. Nand Lal he sold the house to him (Roop Chand) and delivered its possession to him on 17.2.1997 i.e. when the sale deed was executed. He is not related to Nand Lal in any manner. Petitioner got proceedings under section 145 Cr.P.C. initiated by exerting pressure and influence on the police. An order of attachment was passed by the Executive Magistrate, Jind arbitrarily. Attachment proceedings were challenged by him in Criminal Misc. No. 8148M of 1997 and the High Court vide its order dated 21.4.1997 disposed of said petition and directed Roop Chand to approach the Executive Magistrate and raise various points before him for recalling the order passed under section 145/146 Cr.P.C. The High Court directed the Magistrate to dispose of the matter in accordance with law within a month of the date of making an application by Roop Chand. Roop Chand accordingly approached the Executive Magistrate and filed an application for recalling the order. Executive Magistrate after obtaining the report from the police and visiting the spot came to the conclusion that there was no apprehension of breach of peace and handed over the possession of house to Roop Chand who was in possession of the house before initiation of the proceedings under section 145 Cr.P.C. Proceedings under section 145 Cr.P.C. could be dropped any time when the Executive Magistrate became of the opinion that there was no apprehension of breach of peace. It was denied that order annexure P/1 was passed illegally. On 1.3.1997, petitioner had submitted written application to SHO, Police Station City, Jind that every complaint filed against Roop Chand with regard to Kothi No. 246/5 be filed as she was not interested in pursuing those complaints in view of compromise got affected by brotherhood. Annexure R/2/3 is application/compromise. Proceedings under section 145 Cr.P.C. were not competent and the impugned order annexure P/1 was justifiably passed dropping the proceedings under section 145 of Code of Criminal Procedure.

Smt. Anita Yadavrespondent (Executive Magistrate, Jind) in her written statement submitted that in kalendra, the police mentioned that Nand Lal had sold his house No. 246/5 to Rup Chand vide registered sale deed and he is in possession thereof. Nand Lal had also entered into agreement to sell the same house with Saroj Guptapetitioner and had extorted money from her. Nand Lal had also taken loan from Punjab National Bank, Jind. Three parties were thus claiming possession to the disputed house and as such the police requested that the property be attached and receiver be appointed to take charge of the property. Property was accordingly attached and Tehsildar, Jind was appointed receiver to take charge of the property. It was the petitioner who took adjournment after adjournment for putting in reply. Eventually, the case was adjourned to 12.5.97. On 1.5.97, SHO, PS City Jind put in supplementary kalendra Annexure R5/2 (copy) in continuation of the previous kalendra dated 27.2.97 Annexure R5/1 wherethrough it was submitted that Nand Lal had given affidavit that he had sold his House No. 246/5 to Rup Chand vide registered sale deed dated 17.2.1997 and possession had also been delivered to him and that he had never entered into any agreement with Saroj Gupta. It was also submitted that Roop Chand had given one application in which he had stated that he will be bound to pay the loan due to the Punjab National Bank from Nand Lal as soon as proceedings under Section 145 Cr.P.C. were dropped. It was submitted that possession be given to Nand Lal after taking it from the receiver. It was with a view to dispose of the question of possession in the wake of the statement made by SHO, PS City Jind in the supplementary kalendra that she preponed the date and disposed of the question of possession of 5.5.97 after she had visited the spot. It was denied that she was under orders of transfer on 5.5.97. In fact, she was transferred on 7.5.97 and she was relieved on 14.5.97. On 5.5.97, she was not aware of her impending transfer.

In this case, Smt. Saroj Guptapetitioner set up an agreement to sell dated 16.1.97 executed by Nand Lalrespondent with regard to this house for a sum of Rs. 10 lacs. According to her, she had paid Rs. 7.50 lacs as advance to Nand Lal and Nand Lal had delivered her possession. According to her, 31.1.97 was the date stipulated for her execution of the sale deed in pursuance of that agreement to sell. Roop Chand respondent, on the other hand, set up sale deed in his favour executed by Nand Lal on 17.2.97 for a sum of Rs. 3.20 lacs. As regards the agreement dated 16.1.197, the submission of Nand Lal/Roop Chand was that agreement was forged. Nand Lal never signed that agreement. His signatures on agreement to sell are the result of traced forgery. On 15.2.97, Saroj Gupta filed suit for permanent injunction against Nand Lal restraining the latter from interfering with her possession of the house and also restraining him from dispossessing her from that house and from alienating the same or any part thereof to any person. Annexure R2/1 is copy of the plaint. Smt. Saroj Gupta relied upon that agreement in support of her claim for injunction and the recalcitrant attitude of Nand Lal in executing sale deed in her favour on or before 31.1.97 which was stipulated as the date for the execution of the sale deed on receipt of the balance sale consideration. Along with the plaint she moved an application for the grant of temporary injunction. Her prayer for the grant of temporary injunction remained undisposed of when on 27.2.97, SHO, PS City Jind initiated proceedings under section 145 Cr.P.C. with regard to this house. On 28.2.97, Executive Magistrate, Jind attached the house and ordered the appointment of receiver. Now the question that arises is whether during the pendency of civil suit for injunction where the question of possession was in issue, proceedings under section 145 Cr.P.C. could be initiated. In Sarwan Singh v. S.D.M. Samana, Distt. Patiala, 1996(1) RCR 576 , on these facts that where dispute arose with regard to possession of land which was in possession of Sakatar Singh, between Sarwan Singh, Subegh Singh brother of Sakatar Singh, Paramjit Kaur, Parminder Kaur and Lakhwinder Kaur daughters of Iqbal Singh and Jagir Singh and Satpal Singh and the kalendra was submitted to the SDM that there is apprehension of breach of peace and loss of life and property and proceedings under Section 145 Cr.P.C. be initiated and on receipt of the kalendra proceedings under section 145 Cr.P.C. were initiated and Tehsildar, Samana was appointed as receiver under section 146 Cr.P.C. It was held that proceedings under section 145 Cr.P.C. cannot be dropped merely on the ground of pendency of civil suit when ownership is not disputed and there is no partition, one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. Where the dispute is not on the right to possession but on the question of possession, the Magistrate is empowered to take cognizance under section 145 Cr.P.C." However, in the present case the question raised in the suit is right to possession by the brothers of Sakatar Singh. Admittedly, Paramjit Kaur, Parminder Kaur and Lakhwinder Kaur having not born from the loins of Sakatar Singh, are claiming the property of Sakatar Singh being the `pichhlag'' daughters as their mother had married Sakatar Singh whereas brothers of Sakatar Singh, Sarwan Singh and Subegh Singh have staked their claim over the property of Sakatar Singh on the basis of natural inheritance being the brothers. The question thus raised in the suit is not merely with regard to the question of possession but with regard to the question of possession of the property. Proceedings under section 145/146 Cr.P.C. are not warranted after the order of the civil court.

In Sarmukh Singh v. State of Punjab, 1996(2) RCR 13 , it was held that when a civil litigation is pending wherein the question of possession is involved and has been adjudicated, institution of parallel criminal proceedings under Section 145 Cr.P.C. would not be justified. The parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, the criminal court should not be allowed to invoke its jurisdiction particularly when the question of possession is being examined by the civil court and the parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during the pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation." This is what the Hon''ble Supreme Court has observed in Ram Sumer Puri Mahant v. State of U.P., 1985(1) RCR 278.

In Parkash Chand Sachdeva v. State and another, 1994(3) RCR 217 , the Hon''ble Supreme Court observed as follows :

"True, a suit or remedy in Civil Court for possession or injunction normally prevents a person from invoking jurisdiction of the criminal court as observed by this court in Ram Sumer Puri Mahant v. State of U.P., AIR 1985 SC 472 : 1985(1) RCR 278 , particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction, or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. The normal rule is as stated by the court in Puri''s case. But that was a suit based on title and that could be decided by civil court only. That ratio cannot apply where there is no dispute about title. When claim or title are not in dispute and the parties on their own showing are coowners and there is no partition one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. Where the dispute is not on the right to possession but on the question of possession the Magistrate is empowered to take cognizance under Section 145 Cr.P.C. Neither the High Court nor the Sub Divisional Magistrate cared to ascertain if the respondent had any claim to lawfully prevent the appellant from entering into his own house. The proceedings under section 107 are for public peace and tranquility whereas Section 145 relates to disputes regarding possession between parties concerning any land or water or boundaries thereof. Therefore, dropping of proceedings under Section 107 could not furnish foundation for dropping the proceedings under Section 145. Nor the law laid down in Puri''s case could result in rejecting the application filed under Section 145 Cr.P.C. There being no dispute of title between the appellant and the respondent the only claim to be decided was if the appellant had been forcibly or wrongly dispossessed within two months next before the date on which the information was received by the Magistrate and the High Court instead of deciding this crucial aspect, failed to exercise its jurisdiction as the appellant had sought the remedy in civil suit without applying the mind if that decision was in any way helpful for dropping the proceedings. In law, therefore, the order passed by two courts below cannot be maintained."

In Mange and others v. State of Haryana, 1997(1) RCR 598 it was held that appointment of receiver by the Executive Magistrate shall be always subject to the decision of the civil court in terms of clause 2 of Section 146 Cr.P.C. Finding as to possession by the Civil Court will be binding on the criminal court. If one party has the right to possession as per the finding of the civil court, no proceedings under section 145/146 Cr.P.C. can be taken in that case. Only proceedings under section 107 Cr.P.C. are liable to be initiated against the party on whose hands there is apprehension of breach of peace.

Where the civil court has given a finding that one party was in established possession of land, proceedings under section 145/146 Cr.P.C. would not be competent at the instance of the other party. Other party cannot approach the Executive Magistrate or the police to undo which has been done already by the civil court but where the rights of the parties are in a fluid state and there is no specific finding regarding the possession one way or the other and there is likely breach of place in such a situation the proceedings under section 145 Cr.P.C. can be initiated so that there is no commission of breach of peace on the dispute of possession.

In Tek Ram and another v. S.D.M. and others, 1997(2) Chandigarh Law Reporter 165, a Division Bench of this Court held that a Magistrate has no role to play in a matter about the disputed possession of some property between the parties where a civil court has already granted an injunction and is debarred to invoke proceedings under section 145 Cr.P.C. By initiation of parallel proceedings by the same party one before a civil court of law (which is earlier in time) and gets a temporary injunction on adjudication and the other before a criminal court of law who attaches the property by invoking powers under section 145 Cr.P.C., both the parties are put to a legal jeopardy for there is every likelihood that two courts may adjudicate differently and that is why the parties may get deranged under the process of law.

Law laid down by the Hon''ble Supreme Court in Ram Sumer Puri Mahant''s case (supra) in quite unambiguous terms states that when a civil litigation is pending for the property where question of possession is involved and has been adjudicated, institution of parallel criminal proceedings under section 145 Cr.P.C. would not be justified. Parallel proceedings should not be permitted to continue and in the event of the decree of a civil court, the criminal court should to be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and the parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute.

In this case Saroj Gupta filed suit for permanent injunction on 15.2.1997 in the civil court at Jind against Nand Lal restraining the latter from interfering in her possession of the house No. 246/5, Gandhi Nagar, Jind and restraining him from dispossessing her from the said house and also restraining him from alienating that house. For the relief claimed, she set up that agreement to sell dated 16.1.97 executed by Nand Lal in her favour stipulating 31.1.97 as the date for the execution/registration of the sale deed on receipt of the sale consideration of Rs. 2.50 lacs, Rs.7.50 lacs having already been paid to Nand Lal by way of advance. Along with plaint, she had filed application for the grant of temporary injunction. If she had filed suit for permanent injunction together with prayer for temporary injunction, she should have pressed her prayer for temporary injunction before the civil court and in support of her prayer for temporary injunction, she should have brought to the notice of the civil court that agreement dated 16.1.97 executed by Nand Lal stipulating 31.1.97 as the date for executing/registering the sale deed, she should also have brought to the notice of the civil court the recital in the agreement to sell that possession had been delivered to her at the time of the execution of the agreement. After she had instituted that suit, there was no occasion for her to have prayed for the initiation of proceedings under Section 145/146 Cr.P.C. with regard to that house. Where was the occasion for the police to initiate proceedings under section 145 Cr.P.C. Where was the occasion for the Executive Magistrate to order attachment of the house and put the house in the charge of the receiver. Roop Chand set up sale deed of the house in his favour by Nand Lal effected vide registered sale deed dated 17.2.97 for a sum of Rs. 3.20 lacs. Before the civil court Roop Chand could prove the genuineness of the sale deed. Saroj Gupta could prove the genuineness of agreement to sell. If the agreement to sell was proved to be genuine, the sale deed executed by Nand Lal in favour of Roop Chand would have been hit by that agreement to sell and that agreement to sell would have had precedence. Smt. Anita Yadav, Executive Magistrate should not have dealt with matter on 5.5.97 when the question of possession was pending before the civil court since 15.2.1997. She should have left the question of possession to be determined by the civil court and subordinated the order passed by her attaching the house and putting it in the charge of the receiver to the order of the civil court.

In this view of the matter, the impugned order passed by Executive Magistrate, Jind dated 5.5.1997 is set aside and the parties are relegated to the position enuring on 28.2.1997 when order Annexure P5 was passed by Executive Magistrate, Jind attaching the said house and appointing Tehsildar, Jind as receiver for the said house. Roop Chand shall hand over the possession of the house to the receiver. Receiver shall hand over the possession to the party who is found to have been in possession by the civil court on the date when that suit for permanent injunction was filed by Saroj Gupta. Civil Court will decide the question of possession within a month of the receipt of the copy of this order. If the civil court has already decided the question of possession, the receiver will hand over possession to the party in whose favour the civil court has found the possession. Receiver will hold possession subject to the decision of the civil court on the question of possession to be rendered on application for the grant of temporary injunction filed by Saroj Gupta, if the civil court has not decided the question of possession so far.

This Criminal Revision is allowed in terms of the above observations. Copy `Dasti'' to each party as per rules.

Revision allowed.