ISHAR DASS Vs. GAURI LAL
LAWS(J&K)-1982-4-6
HIGH COURT OF JAMMU AND KASHMIR
Decided on April 08,1982

ISHAR DASS Appellant
VERSUS
GAURI LAL Respondents

JUDGEMENT

- (1.) THE sole question upon which the decision of this reference turns is: is an application u/s 145 Cr. Pr. Code maintainable when the dispute in regard to possession of the land is already pending disposal before a civil court in which it has also issued a temporary injunction restraining one party from interfering with the possession of the other party over it.
(2.) THE petitioner filed an application u/s 145 Cr. Pr. Code against the respondent before Tehsildar Executive Magistrate, Bhadarwah, on 14 -7 -1979, alleging that the latter was trying to forcibly interfere with his possession over the proprietary land. On this, preliminary order was also passed on the same day. The parties filed their claim and counter claims and also supported the same by affidavits and other documentary evidence. The case was later on transferred to S. D. M. Bhadarwah. At the time of final arguments before him it was urged on behalf of the respondents that a civil court being already seized of a suit relating to the same subject matter, and the said court having also issued a temporary injunction that was still in force, proceedings u/s 145 were not maintainable. This contention having prevailed with him, the learned S.D.M. finally disposed of the application by his order dated 2 -5 -1981 in these words : "For the reasons stated above, I have reached to the conclusion that as a temporary injunction has been granted by a civil court, this court has no jurisdiction to make any order u/s 145 Cr. Pr. Code till the temporary injunction is in force. These proceedings u/s 145 Cr. Pr. Code are therefore, dropped.
(3.) THE petitioner challenged the aforesaid order in revision before Sessions Judge, Bhadarwah, who being of the opinion that the learned S. D. m could not have dropped the proceedings except on the ground that breach of peace had ceased to exist, has made a reference to this court that the order of the S, D. M. may be set aside and he be directed to conclude the proceedings in accordance with the provisions of Section 145 giving due consideration to the evidence produced by the parties. According to the learned Sessions Judge, once proceedings u/s 145 have been commenced, the Magistrate is bound to conclude them in accordance with the procedure laid down in the section and cannot drop them midway except on the ground that the breach of peace which originally existed has ceased to exist. He cannot drop the proceedings merely because the same dispute is subjudice before a civil court in a civil suit that has been instituted prior to the commencement of those proceedings. The raison dletre of Section 145 is to prevent breach of peace that owes its genesis to a "land or water or boundary thereof". It is the existence of breach of peace that confers jurisdiction upon the Magistrate to deal with the rival claims of the parties concerned regarding possession of such land, which in its absence would be the exclusive domain of a civil court. The final order that may be passed in a proceeding u/s 145 is, therefore, always subject to the decision of a competent civil court, which alone is the final arbiter in the matter. It necessarily follows that the civil courts decision, whether it determines the conflicting rights of the parties in regard to possession of the land before or after the commencement of proceedings u/s 145, has to be respected by the Magistrate and the apprehension of breach of peace prevented by him by upholding its decision as a civil court alone can determine the rights of the litigating parties. Mere pendency of a civil suit will of course not be enough to disentitle the Magistrate from arriving at his own independent finding as to who out of the contesting parties was in actual possession of the land on the date of preliminary order, as by not doing so he would be indeed failing in his duty to prevent the breach of peace for which alone Sec. 145 has been enacted. But, where the civil court has already decided the question of possession the Magistrate must uphold such finding unless there has been a sufficient time gap between that finding and the commencement of proceedings u/s 145 and new rights appear to have come into existence during the intervening period.;


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