M. B. SHARMA, J. - (1.) TWO controversies are involved in this misc. petition u/s 482 Cr. P. C. and they are, as to whether once the parties have gone to civil or revenue court for adjudicating their respectful rights, whether it will he the interest of justice to allow parallel proceedings u/s 145 Cr. P. C. and the other is that if the proceedings u/s 145 Cr. P. C. should not be allowed and cannot be allowed to proceed, whether it is open to the executive magistrate to order that the said property be attached u/s 146 Cr. P. C. or if attached should be handed over to any of the parties and if so to which of the party.
(2.) THIS is a case where it appears that the relations of the two real brothers are strained to the extreme and the dispute in this case relates to agricultural land in chak No. 32 BB. The said agricultural land is said to hate been recorded in the khatedari of non-petitioner No. 3 Gurpal Singh who is the real brother of the petitioner. There appears to be no dispute that a suit for division of holding of the agricultural lands is pending in the revenue court-Besides the aforesaid revenue suit, a suit for partition was also filed in respect of the movable and immovable property and it appears that in that civil suit No 29/85 the share of the petitioner and non-petitioner No. 3 has been declared as 1/3. The petitioner and non-petitioner No. 3 has one more brother A decree was made on July 23, 1989 It can, therefore, be said that even in respect of the disputed agricultural land a suit for partition is pending between the parties and it can hardly be disputed that any interim relief either for issue of an injunc-tion and appointment of a receiver can be obtained by either of the parties in that revenue suit. THIS Court has taken a consistent view that in case the parties have gone to a civil court to get their rights decided and civil or revenue suit is pending then it will not be in the interest of justice to allow parallel proceedings u/s 145 Cr. PC. to continue. The learned counsel for the non-petitioner No. 3 contends that afore-said view of this Court needs reconsideration or this cannot be said to be good law any longer, in view of the decision of the Supreme Court in the case of Jhunamal @ Devandas v. State of Madhya Pradesh. (1) In the aforesaid case, the earlier view of the Supreme Court on which the view of this Court that parallel criminal proceedings u/s 145 Cr. P. C. should not be allowed to continue, was not at all detailed. It was observed that it is true that in cases of dispute regarding immovable property a party should not be permitted to litigate before the criminal court, when the civil suit is pending in respect of the same subject matter. The Court, however, said that that, does not, however, mean that a concluded order u/s 145, Cr. P. C. made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the civil court. An order made u/s 145 Cr. P. C. deals only with the factum of possession of the party as on a particular day, and it confers no title to" remain in possession of the disputed property. The order is subject to decision of the civil court, and the unsuccessful party therefore must get relief only in the civil Court. In my opinion, the aforesaid rulings of the Supreme Court does not help the learned counsel for non-petitioner No. 3. " In that case the* proceedings u/s. 145, Cr. P. C. had been concluded and the rights of the parties to possess had been decided and it was only the unsuccessful party who had then gone to the Civil Court. In the instant case, it is not the case of either of the parties that the rights of the parties in respect of the possession of the land in dispute have been adjudicated in the criminal Court u/s 145 Cr. P. C. and that appears to have been done is only an order of attachment u/s. 146 (1) Cr. P. C, was made and the rights of the parties to possess the land have not been decided. Therefore, the aforesaid ruling of the Supreme Court, cannot, and does not help non-petitioner No. 3. As stated earlier, even in the aforesaid case of Jhunamal, the Supreme Court reiterated the view taken earlier that in. case of dispute a party should not be permitted to litigate before the Criminal Court when the civil suit is pending in respect of the subject matter. The revenue suit is pending, as stated earlier and therefore,' in my opinion, parallel proceedings u/s 145 Cr. P. C. cannot be allowed and civil suit should be allowed to continue. If there is any doubt about the fact as to whether the proceedings are pending or not it is hereby set at rest and it is hereby held that proceedings u/s 145 Cr. P. C. shall be consigned to record and will come to an end. If that, be so, there can be no dispute that it is the duty of the Sub-Divisional Magistrate who had attached the subject of dispute and the receiver has taken possession to order that the property may be restored to the party from whom the possession was taken. I will not like to enter into this controversy as from whom the possession was taken. I will direct the Sub-Divisional Magistrate to make an enquiry into the matter and if he can decide only on the basis of the material on record, without taking any evidence that from which of the parties the possession was taken, he will order that the possession shall be handed over to either of the parties. The parties will be free to secure any order from the revenue court where the suit is pending in respect of the possession of the property in dispute, during the pendency of the revenue suit.
(3.) THE parties are directed to be present before the learned Sub-Divisional, Magistrate on October 16, 1989. .;