- (1.) HEARD learned Counsels for the parties and perused the materials on record.
(2.) THIS writ petition has been filed by the petitioner with the prayer to quash the order dated 13-11- 2006 passed by respondent No. 2, Sub-Divisional Magistrate, Chhata, Mathura, the copy of which, is Annexure-1 to the write petition. It appears that there is a temple known as Shri Ladiliji Mahraj in Brsana District Mathura and there is dispute between the parties regarding the management and worship etc. Admittedly. The management scheme of the temple has been registered under the Societies Registration act and each of the partners exercise their rights of Pooja, Rajbhog etc. on their turn. The main dispute in the case is between the petitioner Smt. Gulab Devi and respondent No. 4 Smt. Maya Devi. Both alleged themselves to be the legally wedded wife of late Harbans Lal Goswami, who was also entitled for the Pooja, Rajbhog etc. of the temple for six months in rotation. Admittedly, Harbans Lal Goswami is dead. The petitioner has alleged that respondent No. 4 was the kept of Harbans Lal Goswami whereas in her counter-affidavit, the respondent No. 4 has alleged himself to be the legally wedded wife of the deceased. The matter is under litigation. During his lifetime Harbans Lal Goswami filed a suit for divorce against the petitioner which was decreed by the Trial Court. The first appeal No. 77 of 1991 preferred by the petitioner was allowed on 16-5- 2002 by the then VIII Additional District Judge, Mathura and decree for divorce passed by the Trial Court in Matrimonial Suit No. 111 of 1980 was set aside. Admittedly, the second appeal has been filed by the respondent No. 4, which is pending before this Court but no interim order has been passed. The Civil Suit No. 635 of 2000 filed by the present petitioner was dismissed in default on 14-8- 2001 by the Trial Court in which ad interim injunction was passed in her favour and which automatically ceased to have any effect after the dismissal of the suit. Another suit in the same matter has been filed by the petitioner which is numbered as 234 of 2004 pending before Civil Judge senior Division, Mathura, However, the order SA-11 filed with the counter-affidavit shows that no interim order has been passed in that case. This is admitted position of law that the right title, and interest of the parties in the property in question cannot be decided by any executive order. A will has also been set up by the respondent No. 4, which has been denied by the petitioner in her rejoinder affidavit. The genuineness and validity of the will is also to be decided by the competent Civil Court. Since the matter is pending before the Civil Court, therefore, the parties should await its decision. The impugned order Annexure-1 to the writ petition has been passed by the Sub-Divisional Magistrate, Barsana District Mathura in his executive capacity. The learned Counsel for the petitioner has argued that in the worse case this order can be presumed to have been passed under Section 145 Cr. P. C. But we do not agree with this contention. No where law provides for passing such order in the executive capacity. Even if a moment, it is presumed that this order has been passed under Section 145/146 Cr. P. C. even than it is illegal because the prescribed procedure was not followed and the petitioner was not given opportunity to be heard. Moreover, by the impugned order the petitioner has been dispossessed from the disputed property which cannot be legally done by the Sub-Divisional Magistrate concerned. During the argument also learned Counsels for the respondent No. 4 admitted the legal position and termed this order to be illegal.
(3.) SINCE the Civil Suit is pending before the competent Court, therefore, both the parties have right to get suitable interim orders for the management, preservation and protection of the property in dispute. The Civil Court is also empowered to decide the dispute in respect to the possession also for this purpose the parties can approach the said Court. The learned Counsel for the respondent No. 4 has contended that there was serious dispute between the parties regarding possession, Pooja and Rajbhog etc. of the temple and police had submitted such report that there was apprehension of breach of peace, therefore, the learned Sub-Divisional Magistrate, Chhata, Mathura has passed the impugned order. But this argument has no leg to stand. For the apprehension of breach of peace the Executive Magistrate/police is empowered to proceed under Section 107 Cr. P. C. or in the worse case under Section 145 Cr. P. C.;