M.B.Farooqi - (1.) THE dispute in this case relates to plot no. 159 (area 4 bighas) of village Razdevpur and plot No. 4 (area 3 bighas and 5 biswas) of village Slawalpur, district Ghazipur. According to the affidavits the admitted facts are that in the year 1972 these very plots were the subject matter of proceedings under Section 145 CrPC between opposite party No. 2, who was first party, and the applicants, who were the second party in the court of Sub- Divisional Magistrate, Ghazipur. THE proceedings ended in favour of the applicants. On 23rd September, 1974 the learned Magistrate declared that the applicants were entitled to the posses- sion of these plots until evicted in due course of law. On 4-2-1975 he even released these very plots in favour of the applicants. THEreafter two applications under Sections 145 CrPC were filed against Kunwar, applicant No. 2 and several other persons in respect of the aforesaid plots one by Kashi Nath, opposite party No. 1, and the other by Smt. Chanwa, opposite party No. 2 in the Court of the Sub-Divisional Magistrate, Ghazipur. Kashi Nath, opposite party No. 1 alleged that he had purchased Gobhi crop of these plots from Smt. Chanwa Kunwar and several other persons named in the application were obstructing him from removing the crop. THE learned Magistrate called for a report from the Police Station Kotwali and there after drew upon a preliminary order on 22-12-1975 and called upon the parties to file written statements of their claim as also documents and affidavits in support thereof. On 5-1-1976 Smt. Phulia, applicant No. 1 made an application for her impleadment as a party and also filed her objection to the applications of Kashi Nath but no orders were passed thereon by the Magistrate. Instead, by his order dated 12-2-1976 the learned Magistrate attached the land and directed the parties to get their rights settled through a Civil Court. Aggrieved by the order the applicants went up in revision to the Sessions Judge, Ghazipur, who by his order dated 25- 3-1976, rejected the same. By means of this application under Section 482 CrPC the applicants have challenged the orders dt. 12-2-1976 and 25th March, 1976 and prayed that the same may be quashed
(2.) LEARNED counsel for the applicants contended that since the property and the parties were substantially the same in the two sets of proceedings under Section 145 CrPC the present proceedings were barred. In support of his argument he relied on two decisions in the cases of Baburam Rajeshwari Prasad Ojha v. Deo. Narain, AIR 1958 Patna 222 and Elimuddin Sarkar v. Umed Ali Bepari, AIR 1936 Calcutta 659. In Baburam's case (supra) it was held that the possession of a successful party in a proceeding under Section 145 CrPC cannot be put an end to by the unsuccessful party by mere violence or surreptitious invasions. The object of the Legislature will be frustrated if the party who has, on the finding that he is not in possession, been forbidden to disturb the possession of the successful party until evicted by due course of law, is allowed to interfere with the possession of the successful party and pleads once more that whatever the orders might have been, he is still in possession or has been able to regain possession. Initiation of proceedings under Section 145 CrPC for the second time between the same parties and over the same subject matter is not sustainable in law. In Elimuddin's case (supra) it was held that as provided by Section 145 (6) CrPC the party declared to be entitled to possession in the former dispute is entitled to be protected against disturbance of such possession until evicted therefrom in due course of law otherwise it would be possible for the opposite party to continue to harass his opponents by instituting successive proceedings under Section 145 CrPC. The party alleging that it was aggrieved has its remedy in a civil court, where the questions to title and possession could be settled as between contending parties.
(3.) ON the basis of these decisions, the principle of law with which I agree, is that an unsuccessful party or a party deriving interest from an unsuccessful party cannot maintain an action under Section 145 CrPC against the successful party or parties deriving interest from such successful party over the same subject matter. On behalf of the opposite parties reliance was placed for a contrary view on the decisions in Kalapdin v. State, 1970 AWR 410, Mst. Hosnaki v. State, 1955 AWR 654 and R H. Bhutani v. Mani J. Desai, AIR 1968 SC 1444. These cases lay down the principle that if the Magistrate is satisfied that the dispute relating to immovable property giving rise to apprehension of breach of piece exists he can take action under Section 145 CrPC. But it is nowhere laid down that he can take such action for the second time even where the parties and the property are the same. Consequently the view taken in these cases cannot be said to be in conflict with the view taken in the cases cited on behalf of the applicants.;