PANWAR, J. - (1.) THIS criminal revision u/s. 397/401 of Code of Criminal Procedure, 1973 (for short `the Code') hereinafter is directed against the order dated 11. 3. 2005 passed by Additional Sessions Judge No. 3, Jodhpur (for short `the revisional Court' hereinafter) in Criminal Revision No. 11/2000, whereby the revisional Court set aside the order dated 10. 12. 1998 passed by Executive Magistrate, Jodhpur in Criminal Case No. 7/98. By order dated 10. 12. 1998, the executive Magistrate attached the disputed property u/s. 146 of the Code and appointed SHO, Police Station Khanda Falsa as receiver and directed him to take over the disputed property in his custody.
(2.) THE facts and circumstances giving rise to the instant revision petition are that a proceeding u/s. 145 of the Code was initiated before the Executive Magistrate. After drawing the preliminary order as envisaged u/s. 145 of the Code, the notices were issued to the parties and after hearing the parties, the Executive Magistrate considered the case to be one of emergency and, therefore, thought it fit to attach the property in order to avoid the breach of peace with regard to the disputed property. THE order of attachment came to be challenged before the revisional Court on the ground that there is a civil suit with regard to the disputed property pending in the civil Court and, therefore, a parallel criminal proceeding should not be allowed to continue. THE revisional Court came to the conclusion that when the act of pendency of the civil suit was brought to the notice of the Executive Magistrate, then it was not proper for the Executive Magistrate to proceed u/ss. 145 & 146 of the Code. Accordingly the revisional Court allowed the revision petition filed by non-petitioner No. 2, set aside the order impugned therein dated 10. 12. 1998 attaching the property and appointing receiver, and also quashed the proceeding u/s. 145 of the Code. I have heard learned counsel for the parties. Perused the order impugned and record of the case. It is contended by the learned counsel for the petitioner that mere pendency of the suit is no ground to quash the proceeding u/s. 145 of the Code. It is further contended that the suit before the civil Court was neither for the ownership nor right to possession and, therefore, the pendency of the civil suit can be no bar to continue the proceeding u/ss. 145 & 146 of the Code. Learned counsel for the petitioner has relied on a decision of Hon'ble Supreme Court in Prakash Chand Sachdeva vs. State & Anr. , 1994 Cr. L. J. 2117 (SC), wherein Hon'ble Supreme Court held that proceeding u/s. 145 could not also be dropped on the ground of pendency of the civil suit. When there was no dispute about title, the rule that a suit or remedy in civil Court for possession or injunction normally prevents a person from invoking jurisdiction of the criminal Court would not apply. 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 u/s. 145 of the Code. Learned counsel appearing for the non-petitioner No. 2 supported the order of revisional Court and relied on a decision of Hon'ble Supreme Court in Shanti Kumar Panda vs. Shakuntala Devi 2004 Cr. L. J. 1249 (SC ). I have given my thoughtful consideration to the rival contentions raised by the learned counsel for the parties.
(3.) ONE Smt. Kisarbai, mother of the petitioner and non- petitioner No. 2 filed a suit for permanent and mandatory injunction against her son Jugal Kishore present non-petitioner No. 2 in the Court of Civil Judge (Junior Division) Jodhpur City, Jodhpur in the year 1998. On 3. 4. 1998 non-petitioner No. 2 appeared. Alongwith the suit, an application u/o. 39 Rr. 1 & 2 of the Code seeking temporary injunction was also filed. The application seeking temporary injunction came to be dismissed by the civil Court on 12. 8. 1998. Appeal against the order dated 12. 8. 1998 came to be filed before the District Judge, Jodhpur which subsequently was transferred to Additional District Judge No. 3, Jodhpur. During pendency of the appeal, Kesarbai died and her son, present petitioner-Baliwala withdrawn the appeal as also the main suit pending before the Court of Civil Judge, City, Jodhpur. Thus, no temporary injunction was granted in favour of either parties. From the facts noticed above, it is more than clear that firstly on the date of order impugned, no civil suit was pending between the parties in the civil Court. More so, the suit before the civil Court was not referable to ownership or right to possession but it was for mandatory injunction simplicitor. In the suit neither ownership nor right to possession was claimed. In Prakash Chand Sachdeva's case (supra), the Hon'ble Supreme Court held that proceeding u/s. 145 of the Code could not be dropped on the ground of pendency of the civil suit. 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 u/s. 145 of the Code. It was further held that 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. In the instant case, civil suit filed by Kesarbai, since deceased, was neither regarding title of the property nor possession, it was a mere suit for injunction, which stood dismissed as withdrawn. There was no dispute of title between the parties as the petitioner and non-petitioner No. 2 are the real brothers and according to them, they are co-owners of the disputed property and, therefore, when the dispute relates to question of possession and not to right to possession, then the Executive Magistrate is empowered to proceed u/ss. 145 & 146 of the Code. ;