Teg Singh vs Krishan Lal and ors.

G.S. Chahal, J.

By means of this criminal miscellaneous under sec. 482, Cr.P.C., Teg Singh petitioner seeks the quashing of the order dated 26111987 passed by the Sub Divisional Magistrate, Kaithal. Annexure P3 on the objection petition filed by the petitioner against the order of proceeding under section 145, Cr.P.C., pending between the respondents.

The factual position is not much in dispute. Proceedings were initiated on the Police report dated 2771982 to which the respondents were parties. The same day, the learned Magistrate passed an order under section 146, Cr.P.C. and appointed the Tehsildar as the Receiver. Vide order dated 321987, the learned Magistrate passed an order under Section 145, Cr.P.C. in favour of Krishan Lal and Sukhdev respondents. A revision preferred before the Court of Session was decided on 1451987 and a further revision was decided by this Court on 28787. In the ultimate result, the possession was held to be that of Krishan Lal and his son Sukhdev. After the decision of this court a direction was issued to this tehsildar to deliver possession of the land of Krishan Lal and others. The petitioner moved an objection petition under Section 145 (5) Cr.P.C. for cancellation of the order, on the ground that he was in fact in possession of the land he was not made a party and the proceedings were taken by playing a fraud on the Court. This application was decided and vide the impugned order, dated 26111987 the objection petition was dismissed.

Undisputedly an order under section 146, Cr.P.C. was passed and the Tehsildar was appointed as a Receiver. After contest of the proceedings up to the stage of this Court a direction was issued to the Tehsildar to deliver possession to Krishan Lal and others. If in fact the petitioner was in possession of the land he would have known that fact when the Tehsildar entered into possession as a Receiver. He would not have slept over the matter for a period of 5 years. There is no averment in the application that the Tehsildar never took over the possession and as such, there was no element of fraud regarding which the petitioner can complain of. If the petitioner was, in fact in possession at the moment the possession was taken over by the Receiver, he was bound to know about the proceedings under which his possession was being disturbed. The pleas in paragraph 3 of the application are rather to the effect that warrant had been issued directing the Tehsildaar to deliver possession of the land to Krishan Lal etc. The position was thus very clear even to the petitioner that the Tehsildaar was in possession as a Receiver. Section 145(5), Cr.P.C. reads as under :

"146 Procedure where dispute concerning land or water is likely to cause breach of peace."

(1) to (4)

(5) Nothing in his section shall preclude any party so required to attend or any other person interested, from showing that no such dispute as aforesaid exists or has existed and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but subject to such cancellation, the order of the Magistrate under sub section (1) shall be final."

This provision can be invoked only when the preliminary order under section 145(1) is passed. This section has however, no application to a case where the proceedings have been finalised. There is thus no merit in the criminal miscellaneous and the same is hereby dismissed.