Rekha Mittal, J. - (1.) THE present petition under Section 482 of the Code of Criminal Procedure (in short "Cr.P.C") has been filed for quashing of proceedings under Section 145 Cr.P.C. recommended by respondent No. 3 vide Report dated 29.9.2012 (Annexure P -3), order dated 15.11.2013 passed by respondent No. 2 (Annexure P -2) and all consequent proceedings arising therefrom.
(2.) COUNSEL for the petitioner contends that Ravinder Kumar, respondent No. 4 at whose behest the proceedings under Section 145 Cr.P.C. have been initiated, is the real brother of the petitioner. Ravinder Kumar submitted an application to the Sub Divisional Magistrate, Hisar (in short "SDM") alleging that he and Rakesh Kumar respondent No. 4 have agriculture land measuring 73 Kanals -10 Marlas and both of them have equal share i.e. 36 Kanals 15 Marlas but the respondent wants to grab the share of the petitioner (respondent herein). It is further averred that the respondent stopped the complainant from using the house constructed in the common land, damaging the crops of the complainant and creates problem whenever he goes to the fields for watering etc. It is argued that as the complainant has alleged himself to be joint owner of the land in question and has not claimed his exclusive possession over the land in dispute, the proceedings under Section 145 Cr.P.C. against the petitioner who is one of the co. owners, are not maintainable. For this purpose, he has relied upon the judgments passed by this Court in Kali Ram vs. State of Haryana, 2003 (2) R.C.R. (Criminal) 595, Nahar Singh vs. State of Punjab, 2000(3) R.C.R. (Criminal) 425 and Ram Karan vs. State of Haryana, 1997(2) R.C.R. (Criminal) 591. Counsel representing respondent No. 4, on the other hand, contends that the petitioner cannot lend any assistance to his contentions from the cited judgments in the face of averments raised in the reply filed by him before the SDM. Counsel has pointed out that in the reply, the petitioner (respondent therein) has denied the allegations contained in para 02 of the application with the plea that the answering respondent is owner and in possession of the land mentioned in this para. It is argued with vehemence that since the petitioner has claimed himself to be exclusive owner in possession of the land in question, no fault can be found in the action of the SDM in taking cognizance of the proceedings under Section 145 Cr.P.C. and appointment of Receiver apprehending breach of peace. In support of his contention, he has referred to the judgment of the Himachal Pradesh High Court in Daulat Ram and others vs. Smt. Shanti Devi, : 1975 (2) The Criminal Law Times 272. Counsel has further submitted that in Parkash Chand Sachdeva vs. State and another, 1994(3) Recent CR 217, the Hon'ble Supreme Court of India has held that ratio in the judgment of Ram Sumer Puri Mahant vs. State of U.P., : AIR 1985 SC 472 cannot apply where there is no dispute about the title. It is further held that when claim and title are not in dispute and the parties on their own showing are co -owners and there is no partition, one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. Where the dispute is not on the right to possession but on the question of possession, the Magistrate is empowered to take cognizance under Section 145 Cr.P.C.
(3.) COUNSEL for the petitioner, in reply, contends that even if the petitioner has inadvertently raised a plea claiming himself to be owner in possession of the land in question, as a matter fact, the petitioner and respondent are the joint owners in possession of the land in question which is yet to be partitioned amongst co -sharers. He has further reiterated that keeping in view the plea of the respondent himself in the application claiming himself to be joint owner without any plea of exclusive possession, the Magistrate was not competent to initiate the proceedings under Section 145 Cr.P.C. in view of position of law laid down in the judgments cited by him.;