M.M.PUNCHHI, J. - (1.) THIS is a petition under section 482 of the Code of Criminal Procedure for quashing the order of Shri Dyal Singh, Sub Divisional Magistrate, Rajpura, dated 29.11.1982. whereby proceedings under section 145 of the Code of Criminal Procedure were initiated qua the land in dispute and it was ordered to be attached and put in possession of the receiver
(2.) IS the course adopted by the learned Sub-Divisional Magistrate, Rajpura, an abuse of the process of the Court ? Should this Court interfere at this stage in the interest of justice ? These are the questions which, are in the forefront. The dispute is between the members of a family. The petitioner owns share of the disputed agricultural land. The other half is concededly owned by Kiran Dev the contesting defendant. Similarly, in these shares the parties own a village house. Both these properties are situated on village Gajipur, tehsil Rajpura, District Patiala. Concededly, Kiran Dev, contesting respondent was born and is residing in U.K. per force he acts through his attorneys appointed from time to time. Admittedly on December 15, 1980 Kiran Dev entered into an agreement to sell his share of the joint land to Dhanvir Singh Petitioner. He even accepted a bank draft of Rs. 77,000/- as earnest money. It seems, thereafter misunderstandings arose and Kiran Dev took some steps towards backing out of the agreement. Kiran Dev respondent also filed a suit in the Revenue Court for recovery of his share of the produce in the said land (copy Annexure P. 7), Kiran Dev specifically averred therein that the suit land was in cultivation of Dhanvir Singh petitioner as co-sharer and since he had cultivated the same and appropriated the usufruct, he was accountable thereof. This plaint is dated January 18, 1982. As a counterblast the petitioner filed a suit for injunction vide plaint (copy Annexure P. 6) on 3.4.1982 and smultaneously asked for a temporary injunction. The injunction was declined by the learned Sub Judge vide order Annexure P1 dated April 19, 1982, being of the view that Kiran Dev could not be injuncted from receiving the share of the produced under order of a Revenue Officer. These were the instances of summoning discontent between the parties when the blow was struck by the Sub divisional Magistrate vening on an application filed by Kiran Dev requesting for iniating under section 145 of the Code of Criminal Procedure. The application was made on August 31, 1982. It is then that a preliminary order under section 145 of the Cr.P.C. was passed by the Sub-Divisional Magistrate on September 8, 1982 (Annexure P. 2). Now in that order the learned Sub Divisional, Magistrate observed that applicant Kiran Dev had stated in his application that he and Dhanvir Singh were joint owners of agricultural land in dispute and that the present petitioner Dhanvir Singh had tried to take law in his own hands and oust him from the land and, therefore, claim regarding actual possession of the land be decided. Thereon, learned Magistrate took the view that Dhanvir Singh (Petitioner) appeared to be in joint possession of the suit land, even the applicant claimed to be in joint possession but the pending litigation between the parties revealed that there was apprehension of breach of peace. On this reasoning proceedings under section 145 of the Cr.P.C. were initiated. The petitioner approached the learned Sub Divisional Magistrate and pleaded before him that he alone was in exclusive possession of the land, for, he was the only party present in India, and further in the alternative, even if the opposite side was claiming the land to be in joint possession even then proceedings under section 145 of the Cr.P.C. could not be initiating proceeding. Learned Sub Divisional Magittrate then vide his order dated November 29, 1982 (Annexure P4) took the view that the two pleas raised by the petitioner were exclusive and thus he was blowing hot and cold. He took into account photostate copies of the agreements with regard to the sale of the land in which Kiran Dev had avowed himself to be the owner in possession of the suit land as a co-sharer. In this view of the matter he took the view that there was a dispute regarding the actual possession of the land between the parties and they were bent upon to taking law into their own hands. It is at that stage that he passed order considering it to be a case of emergency appointing the Naib Tehsildar Dera Bassi as receiver and required of him to take possession of the land in dispute. It is then that the petitioner approached this Court by way of this petition, and I had stayed the implementation of the impugned order of December 7, 1982, if not already implemented.
(3.) DISPUTES as to immovable property which are covered under Sections 145 and 146 of the Code of Criminal Procedure are not all sorts of disputes. Essentially the dispute must be likely to cause breach of peace concerning any land, water or boundary thereof. The Executive Magistrate invites the respective claims of the parties concerning such disputes as respects the fact of actual possession of the subject of dispute. And further while settling the dispute the Magistrate makes no reference to merits or rights of the parties, of possess the subject of dispute. And then he has only to head himself towards deciding whether any or which of the parties, at the date of preliminary order was in actual possession of the subject of dispute. If he is unable to satisfy himself as to which of them was then in possession of the subject of dispute, he may even attach the subject of dispute. As is plain it conceives of case of a dispute which would solve by a party being declared in possession to the exclusion of another. It is difficult to conceive that a dispute with regard to people in joint possession of property would be a dispute coverable under section 145 of the Cr.P.C. but yet it may be a dispute leading to breach of peace. The remedy in that regard would be proceedings under section 107 of the Code of Criminal Procedure. I may notice a decision of this Court in Makhan Singh v. the State of Punjab, 1974 C.L.R. 409, in which it has been observed that even qua jointly possessed properties can disputes be raised with regard to exclusiv possession. It is not the case of respondent No. 2 that he is in exclusive possession of the property as such or even in any part of it. The dispute on the other hand is purely that he is in joint possession of the property. That would not squarely fall under section 145 of the Cr.P.C.;