- (1.) P. K. Jain, J. This revision is di rected against the judgment and order dated 20-11-1995 passed by Sri Ram Sagar Verma, the then 4th Addl, Sessions Judge, Azamgarh whereby he set aside the order dated 24-4-1995 passed by the S. D. M. Sagri, district Azamgarh in pro ceedings under Section 145, Cr. P. C. .
(2.) HEARD Sri R. M. Singh, learned Counsel for the revisionist and learned Counsel for the opposite parties. The dispute related to plot Nos. 19, 323, 716, 928 and 930 of khata No. 133 which belonged to one Smt. Dulari Kunwar. According to the case of the revision ist he had purchased the said plots from Smt. Dulari Kunwar who was bhumidhar of the said plots vide registered sale-deed dated 5th February, 1992 and his name was mutated in the revenue records by order dated 14-5-1992. After purchase of the plots in question he was in exclusive possession of the said plots. Opposite party No. 2 Ram Sant Rai claimed that he was in possession of the disputed land on the basis of the sale-deed and Ranjit Bahadur Rai was not at all concerned with the plots of land and that there was incident of assualt between the parties on account of which grave apprehension of breach of peace existed. Prior to that his brother Umesh Narain moved an application dated 25-2-1993 in which he stated that he had purchased entire land of plot No. 129 be longing to Smt. Dulari Kunwar. Thereaf ter, his name was mutated in the revenue records. The dispute with regard to the sale-deed was finally disposed of by Con solidation authorities in Appeal Nos. 1267 and 1268 by judgment and order dated 9-6-1992. Rained Bahadur Rai intended to forcibly reap the standing crops on the land of the said chak and there was grave apprehension of breach of peace. On the application dated 25-2-1993 moved by Ram Sant Rai on behalf of Umesh Narain the learned Magistrate called for police report and after he was satisfied with the police report he passed the preliminary order dated 23-4-1993 in respect of plot Nos. 19, 323, 716, 928 and 930. It appears that the parties filed their written statements and photo copies of some documents. The learned Magistrate by order dated 24-4-1995 dropped the pro ceedings in view of the fact that Ranjeet Bahadur Rai had produced copy of the plaint in a civil Suit in which the dipsute between the parties in respect of the said plots of land was under consideration. The learned Magistrate, however, on the basis of the entries in the Khatauni for the year 1395 to 1400 directed the land to be re leased in favour of Ranjeet Bahadur Rai, This order of the learned Magistrate was challenged in Criminal Revision No. 169 of 1995 which had been allowed by the learned Addl. Sessions Judge by the im pugned judgment and order dated 20-11- 1995. The revisional Court heid that the learned Magistrate did not afford parties opportunity to lead the evidence. It is this order of the learned Addl. Sessions Judge which is being challenged in this revision.
(3.) PERUSAL of the trial Court's record shows that parties had simply filed photo copies of some documents and were not given an opportunity to adduce any oral evidence. The learned Magistrate has ob served in his order that in respect of the plots in question the present revisionist has filed a Civil Suit which is pending in the Court of Munsif and has filed certified copy of plaint in Suit No. 459 of 1993 (Misc. Case No. 27 of 1993) and the suit was in respect of plot Nos. 19, 323r 716, 928 and 930 which are disputed plots in the present proceedings. The suil appeals to have been filed on 31-5-1993 and the preliminary order in the present case was passed on 23-4-1993. In the said suit prayer for cancellation of decree in suit no. 578 of 1980 dated 21-5-1992 and in the alternative for decree of declaration that the decree dated 21-5-1992 was not bind ing upon the plaintiff, was made. There is thus, no dispute that the suit in respect of the disputed plots of land was pending between the parties although the suit was filed after passing of the preliminary or der. None of the parties has challenged that the dropping of the proceedings on the said ground was beyond jurisdiction. The learned Addl. Sessions Judge allowed the revision against the order dated 24-4-1995 mainly on the ground that parties were not given opportunity to ad duce oral evidence in support of their claims. The learned Addl. Sessions Judge, however, observed in his judgment that so long as no decision with regard to posses sion of any of the parties was given by the Civil Court, the proceedings under Section 145, Cr. P. C. , could be continued. The record does not show that any order in the nature of injunction was passed by the Civil Court in the suit filed by Ranjeet Bahadur Rai. The Hon'ble Supreme Court in the case of Ram Sumer Pun Mahant v, State of U. P. , 1985 (22) ACC 45, held that when a civil litigation is pending for the property wherein the question of posses sion is involved and has been adjudicated, we see hardly any justification for initiat ing a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the Criminal Court in a matter like the one before us. Counsel for respondents Nos. 2 to 5 was not in a positoin to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the Civil Court and parties are in a position to ap proach the Civil Court for interim orders such as injunction or appointment of re ceiver for adequate protection of the prop erty during pendency of the dispute. " Thus, without entering into the question as to what would be the effect of subsequent filing of the suit it may be observed here that in view of the judgment in Ram Sumer Puri Mahant's case which has also been referred to by the learned trial Court in its judgment and order dated 24-11-1995, the criminal proceedings under Section 145, Cr P. C could not be continued only when in the civil suit question of possession is being investigated by the Civil Court. Al though in para 2 of his plaint the present revisionist claimed that he was in posses sion of the disputed plots of land on the basis of the sale-deed in his favour but the relief claimed was only with regard to the cancellation of the decree in suit No. 578 of 1980 or in the alternative the decree of declaration that is, the said decree was not binding upon the plaintiff viz. , the present revisionist. It is not known as to what plea has been taken by the defendant in that suit and what issues have been framed. Therefore, at this stage, it would be diffi cult to state that the question of possession was being investigated by the Civil Court in the suit filed by the present revisionist. In view of the decision of the Supreme Court; in Ram Sumer Puri Mahant's case pendency of every civil suit in which question of possession between the parties is being investigated by the Civil Court will only bar the jurisdiction of the crimi nal Court under Section 145, Cr. P. C. . In my view, the suit in the matter of declaration or cancellation of the sale-deed or cancel lation of the decree or declaration that the decree was not binding upon the plaintiff cannot amount to a suit in which question of possession is being investigated by the Civil Court unless an issue on the question of possession is also framed. Therefore, without further evidence only on the basis of the copy of the plaint the learned Magis trate could not have dropped the proceed ings.;