Dismissed

Dev Rattan v. Inder Singh

Himachal Pradesh HC8 Nov 2019CR.R/169/2019

Case brief

AI extract

What is this about?

The High Court upheld the Order of the Sub-Divisional Magistrate refusing to initiate proceedings under Sections 145, 107, and 150 Cr.PC. The Court held that civil litigation restraining disposssession barred parallel criminal proceedings and the Civil Court judgment should be executed under CPC, not Cr.PC.

What did the court decide?

No relief; the petition challenging the order refusing to initiate proceedings was dismissed as devoid of merits.

Dev Rattan Vs Inder Singh — Landlord and Tenant | Himachal Pradesh HC (2019)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Revision No. 169 of 2019 Date of Decision: 8.11.2019.

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_[ Sh. Dev Rattan ……...Petitioner.

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*Versus*

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Sh. Inder Singh and Anr. ……....Respondents.

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Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting¹ ? Yes. For the petitioner: Mr. Sudhir Thakur, Senior Advocate with Mr. Karun Negi, Advocate

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For the respondents:

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Mr. P.P. Singh, Advocate, for respondent No.1.

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Mr. Sudhir Bhatnagar and Mr. Sanjeev Sood, Additional Advocate Generals, with Mr. Kunal Thakur, Deputy Advocate General, for the State.

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Sandeep Sharma, J. (Oral)

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Being aggrieved and dissatisfied with order dated 27.8.2018, passed by the learned Sub Divisional Magistrate, Solan, District Solan, H.P., in Case No. 206/04 of 2018, whereby kalandra under Sections 145, 107 and 150 Cr.PC, having been filed by the police on the complaint of the petitioner came to be returned/filed, petitioner-complainant has approached this Court in the instant proceedings filed under Section 397 read with Section 401 of Cr.PC.

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2. For having bird’s eye view, necessary facts, as emerge from the record are that petitioner lodged a complaint to Superintendent of Police, Solan (Annexure-D), alleging therein that he is co-owner in possession of the land comprised in khata/khatauni No. 2/2, kitas 32, measuring 66-13 bighas,

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situate at mauza Ruala, Pargana Bohchali, Tehsil and District Solan, H.P. (in

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Whether reporters of the Local papers are allowed to see the judgment?

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short “the suit land”). Complainant further alleged in the complaint that though the suit land is joint between the complainant and other co-owners including respondent Sh. Inder Singh, but all the co-owners are in specific possession of the property on the spot. Complainant averred that previously respondent-Inder Singh had deployed JCB Machine with a view to raise construction and change the nature of the aforesaid land, as a consequence of which, he had filed civil suit bearing CS No.90/1 of 2010 titled Dev Rattan and Ors v. Sh. Inder Singh, in the court of learned Civil Judge, Junior Div. Solan, H.P. and the same was decreed in his favour vide judgment and decree dated 22.9.2014. Learned Civil Court below vide aforesaid judgment and decree restrained the respondent Inder Singh and other co-owners from changing the nature, raising construction and dispossessing the plaintiff from the suit land till the same is partitioned by metes and bounds.

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3. Complainant alleged that he with a view to grow cash crops over the land in his possession engaged labour, but respondent Inder Singh is not permitting them to do the work on fields and is also threatening him with dire consequences. Complainant also alleged that since respondent Inder Singh is violating the judgment and decree passed in his favour, there is likelihood of breach of peace and as such, suitable action may be taken against him as well as judgment and decree dated 22.9.2014, passed by the Civil Court in his favour may also be implemented.

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4. Police after completion of investigation filed kalandra in the court of learned Sub-Divisional Magistrate Solan, District Solan, H.P. under Sections 145, 107 and 150 Cr.PC (Annexure-E), reproducing therein contents of the complaint filed by the petitioner-complainant verbatim. In conclusion, police

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observed/concluded that since there is a property dispute inter-se parties, there is a possibility of breach of peace on the spot. However, learned SubDivisional Magistrate Solan, vide impugned order dated 27.8.2018, refused to take cognizance of the aforesaid kalandra filed by the police on the ground that dispute inter-se parties stands already adjudicated by the learned Civil Court. Sub-Divisional Magistrate in the aforesaid impugned order observed that order of learned Civil Court is not only binding on the party concerned, but also on the magistrate. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein to issue direction to SDM concerned to proceed against the respondents under Sections 145, 107 and 150 Cr.PC.

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5. I have heard the learned counsel for the parties and gone through the record.

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6. Having perused material available on record vis-à-vis reasoning assigned by the learned Sub-Divisional Magistrate, Solan, in the impugned order, this Court is not in agreement with Sh. Sudhir Thakur, learned Senior Counsel, representing the petitioner-complainant that court below having taken note of report submitted by the police, ought to have initiated proceedings against the respondent under Sections 145, 107 and 150 Cr.PC. It is undisputed that prior to filing recent complaint to the police, the petitionercomplainant had filed CS No. 90/1 of 2010, praying therein for permanent prohibitory injunction against the respondent herein. It clearly emerges from careful perusal of narration of facts given in the aforesaid judgment passed by the civil Court below (Annexure B) that petitioner-complainant had averred/leveled similar facts and allegations in the Civil Suit filed by him in the

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civil Court. It is not in dispute that in earlier suit, petitioner-complainant had specifically alleged that respondent herein not only threatened him to raise construction, but also making an attempt to dispossess him and as such, he be restrained from raising any sort of construction, dispossessing him till the time, suit is partitioned by metes and bounds.

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7. Learned court below on the basis of pleadings /evidence led on record by the respective parties, decreed the suit of the plaintiff and restrained the respondent Inder Singh and others, from changing nature, raising any construction and doing excavation work on the suit land till the time same is partitioned by metes and bounds. Judgment and decree was passed by the Civil Court way back in 2014 i.e. almost four years and it is not in dispute that there has been no complaint, if any, by the petitioner-complainant during this period that respondent Inder Singh is trying to dispossess him despite there being restraint order passed by the Civil Court. After four years, i.e. on 24.9.2018, petitioner-complainant on same and similar facts again lodged a complaint to the police, requesting therein to register a case against the respondent with further prayer to implement judgment and decree passed by the Civil Court on the spot. Since it is not in dispute that property in question is still joint between the parties and respondent Inder Singh stands already restrained by the Civil Court from causing interference in the possession of the petitioner-complainant till the time suit property is partitioned by metes and bounds, no fault, if any, can be found with the impugned order dated 27.8.2018, passed by the Sub-Divisional Magistrate, Solan.

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8. Having carefully perused averments contained in the complaint filed by the petitioner complainant vis-à-vis contents of the plaint filed by him in

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Civil Suit bearing CS No.90/1 of 2010, this Court is in agreement with submissions made by Mr. P.S. Goverdhan, Advocate, that very purpose and aim of the petitioner-complainant is to get the judgment of trial Court executed in the criminal proceedings sought to be initiated at his behest under Sections 145, 107 and 150 Cr.PC. Needless to say, the petitioner being aggrieved, if any, on account of violation of judgment and decree dated 22.9.2014, passed by the learned Civil Judge, ought to have filed appropriate proceedings in the appropriate court of law, and definitely, he could not have been permitted to get the judgment of Civil Court executed under the garb of proceedings, if any, initiated under Section 145, 107 and 150 Cr.PC.

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9. Leaving everything aside, careful perusal of kalandra submitted by the police to the SDM concerned nowhere reveals that police before filing kalandra to Sub-Divisional Magistrate conducted inquiry on the spot, rather as has been observed herein above, police in verbatim reproduced the contents of the complaint and very conveniently in the last para of the report made an observation that since there is a dispute inter-se parties on account of property, there is every likelihood of breach of peace on the spot. Very callous and negligent approach of the police while submitting kalandra is quite apparent/evident from the false report submitted by the police that civil dispute inter-se parties is pending adjudication before Civil Judge, Solan, whereas matter stands finally adjudicated with the passing of judgment and decree dated 27.8.2018.

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10. True it is that, an Executive Magistrate, if satisfied, from the report of police officer or upon other information that dispute on account of land, water or boundaries inter-se parties is likely to cause breach of peace, he/she

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exercising power under Section 145 Cr.PC, may require such parties to attend his Court in person or by a pleader, on a specified date and time. Section 145 (4) CrPC further empowers the magistrate to hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary to decide question of possession with regard to subject of dispute. Careful perusal of aforesaid provision of law i.e. Section 145 (4) further reveals that dispute with regard to possession inter-s e parties can be looked into by the magistrate concerned while exercising power under Section 145 CrPC and in case, magistrate is convinced and satisfied that any party has been forcibly and wrongfully dispossessed within two months from the date on which the report is received by the Magistrate, he/she may treat the party so dispossessed as if that party had been in possession on the date of order under sub- section (1). Under Section 145 (6), a magistrate is empowered to restore the possession to such person till the time, he or she is evicted from the property in question in accordance of law.

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11. Since civil court having noticed possession of petitionercomplainant qua the property in question has already issued restraint order, restraining the respondent from changing the nature of such land, raising construction, doing excavation work and dispossessing the petitioner from the suit land till the time, suit land is partitioned by metes and bounds, SubDivisional Magistrate rightly ordered for filing of kalandra under Sections 145, 107, 150 Cr.PC. Normally, a suit is filed for possession or injunction in the Civil Court and such remedy prevents the person from invoking jurisdiction of criminal court. The Hon’ble Apex Court in case titled Ram Sumer Puri Mahant v.

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State of UP and Ors., AIR 1985 SC 472 , has held that when possession is being

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examined by the civil court and parities are in position to approach civil court for interim order, such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute , there is no justification for initiating the parallel criminal proceedings under Section 145 CrPC. Relevant para of the aforesaid judgment is reproduced herein below:-

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“2. Challenge in this application is to the order of the Allahabad High Court refusing to interfere in its revisional jurisdiction against an order directing initiation of proceedings under Section 145, CrPC (Code for short), and attachment of the property at the instance of respondents 2-5. Indisputably, in respect of the very properly there was a suit for possession and injunction being Title Suit No. 87/75 filed in the Court of the Civil Judge at Ballia wherein the question of title was gone into and by judgment dated February 28, 1981, the said suit was dismissed. The appellant was the defendant in that suit. According to the appellant close relations of respondents 2-5 were the plaintiffs and we gather from the counter affidavit filed in this Court that on appeal has been carried from the decree of the Civil Judge and the same is still pending disposal before the appellate court. The assertion made in the Petition for Special Leave to the effect that respondents 2 to 5 are close relations has not been seriously challenged in the counter affidavit. When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceeding should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction 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 dependency 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. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed. We accordingly allow the appeal and quash the order of the learned Magistrate by which the proceeding under Section 145 of the Code has been initiated and the property in dispute has been attached. We leave it open to either party to move the appellate judge in the civil litigation for appropriate interim orders, if so advised, in the event of dispute relating to possession.”

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12. Mr. Sudhir Thakur, learned Senior Counsel argued that ratio as laid down in the aforesaid case cannot be applied in the present case, especially when there is no dispute about title. Mr. Thakur, argued that when claim or title are not in dispute and parties 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. In support of his aforesaid contention, Mr. Thakur placed reliance upon judgment rendered by the Hon’ble Apex Court in case titled Prakash Chand Sachdeva v. The State and Anr, AIR 1994

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Supreme Court 1436 .

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13. In the aforesaid judgment, Hon’ble Apex Court while taking note of its earlier judgment rendered in Ram Sumer Puri Mahant’s case supra has held that remedy of suit clearly prevents the person from invoking jurisdiction of the criminal court, but when there is no dispute about title and parties on their own are able to show that they are co-owners and till date, property has not been partitioned, one party cannot be permitted to act forcibly to disposes other unlawfully. Similarly, in the aforesaid judgment, Hon’ble Apex Court has held that where dispute is not on the right to possession, but on the question of possession, the magistrate is empowered to take cognigence under Section 145 CrPC.

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14. There cannot be any quarrel with the aforesaid proposition of law laid down by the Hon’ble Apex Court supra, but in the case at hand, petitioner complainant himself before approaching the SDM Solan, filed suit for permanent prohibitory injunction against the respondent, claiming himself to be co-owner qua the property in question. It is not the case of the petitioner that respondent is not one of the co-owner, rather case of the petitioner is that

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respondent being co-owner is trying to raise construction over the best portion of the suit land. Having taken note of the apprehension expressed by the petitioner in the civil suit filed by him, Civil Court intervened by issuing restraint order against the respondent. Judgment and decree in the suit having been filed by the petitioner was passed way back in the year, 2014 and there is no material placed on record that between year, 2014 to 2018, an attempt, if any, ever came to be made on behalf of the respondent for changing the nature of the suit land. Interestingly, careful perusal of complaint filed by the complainant clearly reveals that he made specific prayer to get the judgment and decree passed by the learned trail Court implemented. No doubt, in the case at hand, there is no dispute with regard to title and property is still joint inter-se parties, but once civil court has already adjudicated qua the issue of possession, Sub-Divisional Magistrate Solan rightly refused to intervene in the matter. Civil Court having found joint possession of the petitioner on the suit land, restrained the respondent herein and other parties from changing the nature of the suit land and dispossessing the petitioner till the time suit property is partitioned by metes and bounds.

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15. There is another aspect of the matter i.e. had SDM intervened under Section 145 Cr.PC and found the petitioner to be in possession of the property in question, he could have only directed the other party i.e. respondent, not to disposes the petitioner complainant till the time he is ordered to be evicted in accordance with law. In the case at hand, civil court has already passed such order and as such, Sub-Divisional Magistrate rightly refused to take cognizance of the kalandra filed before him. Leaving everything aside, proceedings, if any, initiated under Section 145, 107 and 150

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10 -

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Cr.PC cannot be made basis or tool for getting the judgment and decree passed by the civil Court implemented. Judgment and decree passed by the civil Court can only be executed in terms of the provisions contained under Civil Procedure Code and definitely not by invoking jurisdiction of Criminal

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Procedure Code.

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16. Consequently, in view of the above, this Court finds no illegality and infirmity in the impugned order passed by the Sub-Divisional Magistrate, which otherwise appears to be based upon proper appreciation of facts and law and accordingly, same is upheld. Present petition fails and dismissed being devoid of any merits.

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8^th November, 2019

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manjit

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(Sandeep Sharma), Judge.

Dev Rattan v. Inder Singh

Case brief

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Dev Rattan v. Inder Singh

Case brief

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