- (1.) POONAM Srivastava, J. Heard R. C. Singh, learned Counsel for the petitioners, Sri B. K. Tripathi Advocate for the caveator and learned A. G. A. for the State.
(2.) COUNSEL for the petitioners does not propose to file any rejoinder affidavit. In the circumstances, the writ petition is being heard finally. The proceedings under Section 145/146 Cr. P. C. are impugned in the instant writ petition. The submission on behalf of the petitioners is that they are in possession of the disputed property since time immemorial. The name of one Neur was recorded in the revenue record. The petitioners contend that the revenue entry was incorrect which prompted them to file suit under Section 229-B U. P. Z. A. and L. R. Act. In the suit an interim order to maintain status quo was also passed on 11-7-2003. The submission is that Neur aforesaid filed his written statement in the said suit and the interim order of status quo continues to be in existence even today. The respondent No. 2 moved an application before the Sub-Divisional Magistrate, Nichlaul, Mahrajganj for initiating proceedings under Section 145 Cr. P. C. A police report was called for which was submitted on 26-6-2005 in respect of plot No. 361 area 470 hectare. The police report is annexed as Annexure-3 to the writ petition. A preliminary order was passed requiring the parties to appear before him on 5-7-2005 but simultaneously an order under Section 146 (1) Cr. P. C. was also passed. The grievance of the petitioners is that the contesting respondent has got a sale-deed executed in his favour by an imposter of Neur who filed Civil Suit No. 70 of 2004 for cancellation of sale-deed. However, the said suit was dismissed as withdrawn after an application under Order 23 Rule 1 C. P. C. was moved. The said application was allowed and the suit for cancellation of sale- deed stands withdrawn w. e. f. 30-8-2006. The order of attachment under Section 146 (1) Cr. P. C. was challenged in a criminal revision which was dismissed on 7-12-2006.
(3.) THE contention of the learned Counsel for the petitioners is that since the suit under Section 229b of U. P. Z. A. and L. R. Act is pending, therefore, the learned Magistrate should have stayed his hands and could not proceed under the provisions of Section 145 146 Cr. P. C. in view of the decision of the Apex Court in the case of Ram Sumer Puri Maluint v. State of U. P. & Ors. , 1985 (22) A. C. C. 45 (SC), following in a number of other decisions. Counsel for the contesting respondent has stated in the counter-affidavit that civil disputes in respect of the land in question has already been decided up till the stage of Hon'ble Supreme Court between the petitioners and Neur, erstwhile owner of the property in dispute, before the sale-deed was executed in favour of the contesting respondent. The decisions of the various Courts have already been brought on record alongwith counter- affidavit. The question of possession, right, title and claim have already been decided by the competent Courts and no benefit can be accrued to the petitioners on the basis of an order of status quo in the declaration suit. Reliance has been placed on a number of decisions by the Counsel for the contesting respondent. The first decision is in the case of Janjir Singh & Ors. v. State of U. P. & Ors. , 1997 A. C. C. 150 (Alld ). This Court was of the view that unless the question of possession was decided one way or the other in a civil suit or injunction was refused to plaintiff or granted to defendant, bar to initiate proceedings under Section 145 Cr. P. C. was not attracted. This view was reiterated in a number of other decisions; Ear Pal v. State of U. P. & Ors. , 1995 (32) A. C. C. 316, Shyam Sundari v. District and Sessions Judge, Ballia & Ors. , 2003 (1) JIC 1029 (All) and Raj Bahadur & Ors. v. State of U. P. & Anr. , 1995 (1) JIC 36 (All) : 1994 (31) A. C. C. 654. On perusal of the aforesaid decisions, it is absolutely clear that merely because a civil suit is pending relating to the property in dispute, the jurisdiction of the Magistrate to proceed under Section 145 Cr. P. C. is not taken away. There could arise three different situations before the Court when this fact of pendency of the civil suit is brought to its notice; (I) where the civil Court has already adjudicated upon the question of possession even though it may have been done by way of interlucotry order or where such an adjudication is made by the civil Court after the commencement of the proceedings under Section 145 Cr. P. C. (ii) in case the Magistrate passes an order under Section 146 (1) Cr. P. C. and adjudication is made during continuation of the said attachment, no doubt the order passed by the Magistrate will come to an end or (iii) lastly if the civil Court's order already existed deciding the question of title and possession, the Magistrate will have no jurisdiction to commence proceedings under Section 145 or 146 (1) Cr. P. C. There is yet another circumstance as in the case of Ram Sumer Puri (supra) when the question of possession is being examined by a civil Court and parties are in a position to approach the civil Court for interim order, such an injunction for appointment of receiver or for any contingency to protect the property, then the concerned Magistrate should stay its hands and not initiate proceedings under Section 145 Cr. P. c;