N.K.KAPOOR, J. - (1.) PETITIONERS seek quashing of order dated 8.4.1992 passed by the Sub Divisional Magistrate under Section 145 of the Code of Criminal Procedure (for short 'the Code') and initiation of proceedings under Section 146 of the Code.
(2.) ACCORDING to the petitioners, they purchased the land in dispute vide sale deed dated 13.6.1990 and were put in possession of the same by the vendor, namely, Chhinder Kaur, one of the co-sharers. The respondents who had no right to interfere with the possession filed civil suit seeking interim injunction and on being unsuccessful resorted to proceedings under section 145 of the Code in collusion with the authorities. According to the petitioners, once the matter is pending before a civil Court, parallel proceedings under the Code are, in fact, not competent and in anyway liable to be stayed till determination of disputed question of possession by the civil Court. Reliance was placed upon the decision of this Court in case reported as Kartar Singh v. Balbir Singh Malik, SDM and others, 1990(1) RCR 89. The respondents in their written reply controverted the various material averments made in the petition. It has been averred that the respondents filed a suit for permanent injunction against the petitioners restraining them from interfering in the possession of the answering respondents. It was specifically denied that the petitioners are in possession of the land at the spot on the basis of the sale deed dated 13.6.1990. In fact, the alleged sale deed is a bogus document having been executed by producing a fake person as Chhinder Kaur. To prove their possession, reference was made to the entries in the copies of Khasra Girdawari for the year 1990-91 and 1991-92 and to the jamabandi for the year 1989-90. Where respondents were shown to be in possession. Justifying the initiation of proceedings under Section 145 of the Code, it was stated that, in fact the petitioners assaulted the answering respondents with deadly weapons. Proceedings under Section 107/151. of the Code had also been initiated against both the parties and both the parties were bound down. With this background, recourse to section 145 of the Code was not only legal but just and proper in the circumstances of a case. The present proceedings for quashing has been filed solely to delay the adjudication of rival claim by the authorities and so deserves to be dismissed.
(3.) I have heard learned counsel for the parties. The primary contention of the learned counsel for the petitioners is that the Civil Court being seized of the dispute, proceedings under section 145 of the Code are wholly uncalled for Civil Court is to determine the question of possession. The decision of Civil Court upon such a question is binding upon the criminal Court and so parallel proceedings under section 145 of the Code are not competent. No doubt, this court in Kartar Singh's case (supra) relying upon the decision of the Supreme Court in case reported as Ram Sumer Puri Mahant v. State of U.P. and ors., 1985(1) Recent Criminal Reports 278 (SC) : 1985(1) CLR 521, held when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, there is hardly any justification for initiating proceedings under Section 145 of the Code. The aforesaid judgments when examined in the light of fact as has been brought on record are not applicable. In the present case, there was no adjudication by a Civil Court when the proceedings had been launched under section 145 of the Code, in the present case, the respondents filed a suit for permanent injunction restraining the defendants - now the present petitioners from interfering in their possession over the suit land. As per case set up by Amrik Singh and another respondent was that they are in possession of the suit land. The suit land had not been partitioned. The present petitioners, even if they purchased part of land vide sale deed dated 13.6.1990, have no right to interfere with their peaceful possession. The civil Court during the pendency of these proceedings has decided the rival claim set up by the parties vide judgment dated 10.8.1994. It has been held that the sale deed in favour of defendants (petitioners in this petition) is valid only to the extent of 1/6th share. It has been further ordered that the defendants are restrained from dispossessing plaintiff No. 2 from the suit land illegally, forcibly and without due process of law. However, they are at liberty to take possession thereof on the strength of sale deed dated 13.6.1990 by resorting to partition. The appeal against this judgment is pending before the Additional District Judge. The learned Sub Judge vide judgment and decree dated 10.8.1994 has held that the second plaintiff, namely, Dalip Singh s/o Kartar Singh is in exclusive possession of the suit land as co-sharer and his possession is to be protected from defendants No. 1 to 5. Since the parties had been setting up rival claims and there was apprehension of breach of peace the authorities chose to invoke the provisions of Section 145 of the Code till the matter is finally decided by the Court or by a civil Court, receiver was appointed. This court had the occasion to examine as to whether on account of more pendency of civil suit. Criminal proceedings have to be dropped in case reported as Mohinder Singh v. Dilbagh Rai, 1976 PLR 803. The Division Bench after exhaustively examining the various contentions raised by the respective counsel came to the conclusion that when both the parties assert their claim to be in possession and civil Court has directed maintenance of status quo during the pendency of the suit, proceedings under section 145 of the Code are appropriate. It was observed that cases are not unknown in which in spite of injunction issued by a civil Court parties have tried to take forcible possession of the land in disregard to the injunction order. In such like cases, it is in fitness of things that police intervenes suo moto or on a report lodged by a weaker party. This precise point has already been examined by the apex court in case reported as Prakash Chand Sachdeva v. The State and another, 1994(3) Recent Criminal Reports 217 : 1994 Crl L.J. 2117, wherein it has been held as under :- "True, a suit or remedy in civil Court for possession or injunction normally prevents a person from invoking jurisdiction of the criminal Court as observed by this Court in Ram Sumer Puri Mahant v. State of UP., AIR 1985 SC 42 particularly when possession is being examined by the civil Court and parties are in a position to approach the civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. The normal rule is as stated by the Court in Puri's case. But that was a suit based on title. And that could be decided by civil Court only. That ratio cannot apply where there is no dispute about title. When claim or 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. Neither the High Court nor the Sub Divisional Magistrate cared to ascertain if the respondent had any claim to lawfully prevent the appellant from entering into his own house. The proceedings under Section 107 are for public peace and tranquility whereas under section 145 relates to disputes regarding possession between parties concerning any land or water or boundaries thereof. Therefore, dropping of proceedings under Section 107 could not furnish foundation for dropping the proceedings under Section 145. Nor the law laid down in Puri's case could result in rejecting the application filed under Section 145 of the Cr.P.C. There being no dispute of title between the appellant and respondent the only claim to be decided was if the appellant had been forcibly or wrongly dispossessed within two months next before the date on which the information was received by the Magistrate and the High Court instead of deciding this crucial aspect, failed to exercise its jurisdiction as the appellant had sought the remedy in civil suit without applying the mind if that decision was in any way helpful for dropping the proceedings. In law, therefore, the order passed by two Courts below cannot be maintained." ;