AZIZ MALIK Vs. MOHD RUSTAM MALIK
HIGH COURT OF JAMMU AND KASHMIR
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(1.) By this petition under S.561-A of Cr.P.C. the petitioners have prayed for the quashing of the proceedings under S.145 of the Cr.P.C. initiated by Executive Magistrate, 1st Class (Assistant Commissioner), Kupwara who by his preliminary order dt.18-5-1985 taking cognizance and has further passed an order of attachment under Cls.(i) and (iv) of S.145 of the Cr.P.C. The dispute relates to a piece of land comprised in Survey No.865 measuring 17 marlas situated at Hayan, Kupwara. The Executive Magistrate, 1st Class (Assistant Commissioner), Kupwara in the case titled as Mohd. Rustam Malik v. Aziz Malik and others, on an application moved by respondent initiated proceedings under S. 145 of the Cr.P.C. after passing the preliminary order also passed an order for attachment of the land mentioned above under the order aforesaid and appointed one Rasool Malik S/o Aziz Malik, Lumberdar Hayan as Supurdar for the said land.
(2.) Briefly stated the claim of the petitioners is based with respect to the land in dispute of the devolution by inheritance to petitioners 1 to 5 duly supported by revenue entries indicating their ownership and possession. It is also alleged that on interference by respondents regarding actual physical possession in 1984, the petitioners filed a Civil suit in the Court of Munsiff Kupwara on 18-8-1984, the respondent was arrayed as defendant in the said Civil suit, which is pending disposal before the civil court. It is also stated that in the said suit on an application by the petitioners for temporary injunction, the civil court directed the parties to maintain status quo on spot with regard to the suit property. This order was also passed on 18-8-1984, which is still in force. Nothing has been brought on record by the respondent to demonstrate that the said interim order was appealed against or in any manner set aside or modified by the civil court. It is, therefore, prayed in this petition that in view of the pendency of the civil suit and continuance of interim order the parallel proceedings under S.145 of the Cr.P.C. are liable to be quashed being without jurisdiction, hence this petition.
(3.) On hearing the rival arguments, I am of the opinion that the Executive Magistrate, 1st Class (Assistant Commissioner), Kupwara during the pendency of the civil suit, which on the very face of narration of facts enumerated above was filed much earlier the order passed in the proceedings before the Magistrate and in which respondent had an opportunity of contesting regarding possession and to obtain an order such as injunction or appointment of Receiver cannot be allowed to pursue the proceedings under S.145 of the Cr.P.C. The only contest of the respondent in this regard is based on a misconception that there was an apprehension of the breach of peace and hence he is justified in recourse to the proceedings under S.145 of the Cr.P.C. Learned Counsel for the petitioners in support of his contention placed reliance on an authority of their Lordships of the Supreme Court reported in AIR 1985 SC 472: (1985 Cri LJ 752) (Ram Sumer Puri Mahant v. State of U.P.), which on the facts and circumstances of the present case is applicable with full force. Nothing could be brought by the learned counsel for the respondent to distinguish or to take contrary view in the instant case.;
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