1. This writ petition has been filed with a prayer to issue a writ in the nature of certiorary seeking quashing of the order dated 22.7.2009 and 14.6.2011 passed by the City Magistrate, Aligarh in Case No. 9 of 2008 (State of U.P. Vs. Smt. Kanti Devi) under Section 145 Cr.P.C. and by learned Additional District and Session Judge, Bulandshahar in Criminal Revision No. 276 of 2009 (Nalini Kant Vs. State of U.P. And others), respectively.
2. The contentions are that a registered agreement of sale was executed by respondent no. 4 Kunwar Mohd. Abdul Bashir Khan in favour of petitioner Nalini Kant on 8.10.2003 and possession was handed over to the petitioner over the disputed property, whereafter the petitioner started sowing crops in the said plot. According to the said registered agreement, 7.10.2004 was fixed as the date for execution of sale deed. Thereafter, an application dated 5.10.2004 was sent by him to the Sub-registrar, Dibai, Bulandshahar but when the sale deed was executed he filed a Civil Suit No. 493 of 2007 (Nalini Kant Vs Kunwar Mohammad Abdul Basheer Khan and another) in the court of Civil Judge (Senior Division), Bulandshahar registered as OS No. 493 of 2007 ( Sri Nalini Kant Vs Kunwar Mohammad Abdul Basheer Khan @ Abdul Washi Khan) for specific performance of contract. In the meantime, the respondent no. 4 executed the sale deed of the said land in favour of respondent no. 2, Kanti Devi while the proceedings in the suit for specific performanc were still pending. Since the time of taking over the possession the petitioner was continuing in peaceful possession of the disputed land, but respondent no. 2 tried to dis-possess her and take possession herself but could not succeed. An application under Section 145 Cr.P.C. for initiating proceedings was moved by respondent no. 2, whereon a report was called for from the police which was submitted on 5.8.2008. After consideration of the said report, notice under Section 145(1) Cr.P.C. was issued on 29.9.2008 but without waiting for the reply as well as effecting service upon the petitioner, the attachment order has been passed on 29.9.2008 under Section 146(1) Cr.P.C., despite the fact that there was no urgency or emergency, particularly when there was no intervening event for initiation of proceedings under Section 146(1) Cr.P.C. Being aggrieved with the said order dated 29.9.2008, a criminal revision 396 of 2008 (Nalini Kant Vs. State of U.P.) was preferred, which was allowed vide order dated 17.4.2009, in which it was recorded that the proceedings initiated under Section 146 (1) Cr.P.C. as well as its consequential order passed by the court below were illegal and erroneous. The suit with regard to the same property was pending before the Civil Court, Bulandshahar and there was no possibility of any dispute or probability of breach of peace. Thereafter, against the said order dated 17.4.2009, respondent no. 2 had filed a Criminal Misc. Writ Petition No. 7752 of 2009 (Kanti Devi Vs. State of U.P. And others), in which High Court directed the trial court to decide the proceedings under 145 Cr.P.C. within a period of 30 days and further directed to arrange for the custody or otherwise of the crop standing on the disputed plot. Although, the view of High Court with regard to custody of the standing crop was a temporary arrangement but the learned Magistrate mis-construed the direction and erroneously attached the property and appointed a receiver over the disputed property on 22.7.2009. Feeling aggrieved with the aforesaid order, a Criminal Revision No. 276 of 2009 (Nalini Kant Vs. State of U.P. And others) was preferred which was dismissed vide order dated 14.6.2011. It is further mentioned that OS No. 1016 of 2016 was filed by Kunwar Abdul Bashir Khan for cancellation of agreement of sale on 8.12.2003, which was dismissed in default for want of prosecution and the same has not been restored till date. The revisional court has overlooked the finding as recorded in the earlier revision order dated 17.4.2009 which was still in effect and has erroneously dismissed the revision despite recording that civil dispute was pending before the Civil Court and the possession was with the petitioner before the same was given under order of trial court to the receiver. The revisional court justified the attachment made by S.D.M. concerned holding that it was not necessary for the SDM to be satisfied with the report of local police. Both the courts below failed to consider that the possession of the petitioner was admitted by police in its report as well as in the agreement of sale in question. The provision under Section 146 (1) is meant to be exercised only in emergent situation when there was apprehension of breach of peach, but no such emergent situation prevailed. When the civil suit is pending, proceedings under Section 145 Cr.P.C. should not be initiated. In these circumstances, it is prayed that the this petition be allowed and the both the impugned orders dated 22.7.2009 and 14.6.2011 be quashed.
3. No counter affidavit is found on record from the side of respondent nos. 2 to 4. However, respondent no. 1 has filed counter affidavit, in which it is stated that the petitioner has not been able to prove his possession of the plot in question. The respondent no. 2 Kanti Devi has filed this application for initiation of proceedings under Section 145 Cr.P.C. and taking into consideration that there was imminent danger to the breach of peace, the S.D.M. has passed the order under Section 145(1) Cr.P.C. and 146(1) Cr.P.C. on 29.9.2008. The order passed by the learned Magistrate dated 22.7.2009 is just legal and proper. In the circumstances of the case, the petitioner as well as respondents have failed to prove ownership and the possession over the property in dispute. There were several litigations pending between the parties. The police has not given any proof of possession. The averments made in this regard in the writ petition are false that the police had given the proof of possession. The learned SDM has passed order under Section 146(1) Cr.P.C. subejctively being satisfied that there was imminent danger of breach of peach. No effective order has been passed by the civil court. Hence, taking into consideration the apprehension of breach of paeach, the order under Section 145(1) Cr.P.C. and 146(1) Cr.P.C. have been passed.
4. Before proceeding to give finding in the matter, it would be appropriate to refer to the relevant provisions of law.
Section 145. Procedure where dispute concerning land or water is likely to cause breach of peace.
(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section, the expression" land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute, (4) The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub- section (1), in possession of the subject of dispute:
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1).
(5) Nothing in this section' shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final.
(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub- section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub- section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b) The order made under this sub- section shall be served and published in the manner laid down in sub- section (3).
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of. such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale- proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.
146. Power to attach subject of dispute and to appoint receiver.
(1) If the Magistrate at any time after making the order under sub- section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908 );
Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate-
(a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him;
(b) may make such other incidental or consequential orders as may be just.
5. The impugned order dated 22.7.2009 has been perused. It is mentioned in this order that petitioner Nalini Kant has stated that 1/3 part of Gata No. 247 Sa, Area 10.708 Hectares belonged to one Kunwar Mohd. Abdul Bashir Khan (respondent no. 4), who executed an agreement of sale in favour of petitioner, of 2.672 hecatare out of the said property on 8.10.2003 for consideration of an amount of Rs. 9,50,000/- and out of that he received 8,50,000/- and the remaining amount is 1,00,000/- was received by him on 12.10.2003, receipt of which was executed and handed to the petitioner. Petitioner (Nalini Kant) remained in possession of the said land from 12.10.2003 till handing over the said property to Supurdgar i.e. 30.9.2008. At that time, the crop sown by the petitioner of paddy was standing on the said land which was given to supurdgar. Respondent no. 2 (Smt. Kanti Devi) had nothing to do with the said land because till then, no mutation had been done in favour of respondent no. 2. One case of specific performance being O.S. No. 493 of 2007 was pending in the court of Civil Judge (Sr. Division), Bulandshahar, therefore, prayer was made by the petitioner that the said land be released in favour of the petitioner. Respondent no. 2 Smt. Kanti Devi filed objection dated 25.5.2009 in which she stated that the sale deed was executed in her favour and since thereafter, she was continuously in possession of the said land. At present, the said land was attached and prior to attachment she was having possession of the same and the court had to make compliance of the direction of High Court. It is mentioned in the said order that the court could not give any finding in respect of ownership. No evidence was given by any party and, hence, without evidence being recorded, the attached property could not be released in favour of any party. Therefore, the application of the petitioner dated 18.5.2009 be dismissed.
6. After considering the rival contentions, the court below has recorded that on the application of the petitioner a report was obtained from police dated 5.8.2008 and based on that the disputed land was attached vide order dated 29.8.2008 under Section 146(1) Cr.P.C. In pursuance of that order, Naib Tehsildar, Dibai attached the property handing it over to Devi Singh (supurdgar). Feeling aggrieved by the order dated 29.9.2008, the petitioner filed a Revision No. 396 of 2006 (Nalini Kant Vs. State of U.P.) in court of Additional District and Session Judge, Bulandshahar which was disposed of on 17.4.2009, whereby the attachment order dated 29.9.2008 was set aside. Against the said revisional court's order dated 17.4.2009, respondent no. 2 filed Criminal Writ Petiton No. 7752 of 2009 (Smt. Kanti Devi Vs. State of U.P.) which was disposed of and it was directed that the proceedings be decided within one month. The petitioner had admitted about a case of specific performance being pending in the court of Civil Judge (Senior Division), Bulandshahar and had also stated that the mutation application moved by respondent no. 2 Smt. Kanti Devi had been rejected, hence, title over the disputed property could not be determined. There was no evidence on record from which it could be concluded that prior to the attachement of the property it was in possession of which party or from the possession of which party, the same had been attached. Even the memo of attachement does not contain these details. During arguments, the facts emerged that there was a case pending between the parties before civil court for cancellation of sale deed also. It was found evident that between both the paties, there were several civil cases pending and in all these circumstances, it was justified that the said property should continue in the custody of supurdgar with the direction that he shall submit account related to the said land before court. Since, the ownership/title of the disputed land was yet to be determned, the parties were at liberty to get the same decided from a competent court. Due to lack of evidence on the point as to which party was in possession, there being no documentary evidence available on record relating to possession, the possibility of breach of peach between the parties could not be ruled out. Hence, it was directed that in the interet of justice, till the determination of title/ownership of the disputed property from a competent court, the property shall be kept in supurdgi of the receiver, who shall submit the account of income & expenditure in respect of the said land before the court. The said attachment shall be subject to the orders passed by a competent court in respect of title/ownership. Consequently the application of the petitioner dated 18.5.2009 was dismissed.
7. The other impugned order dated 14.6.2011 has also been perused, in which it is recorded that on the basis of evidence on record, it was found that the owner of Gata No. 247 Sa, Area 10.708 hectares, situated in village Baraina (1/3 part), was Kunwar Mohd. Abdul Bashir Khan (respondent no. 4), who executed separate agreement of sale in favour of petitioner as well as respondent no. 3, Bhoop Singh on 8.10.2003 and 12.10.2003 respectively. It is also evident that on the basis of said agreement of sale, the case for specific performance of contract and injunction was instituted being Original Suit No. 493 of 2007, in which respondent no. 4 Kunwar Mohd. Abdul Bashir Khan and respondent no. 2 Smt. Kanti Devi had filed written statements. It is also on record that for getting the agreement of sale executed by respondent no. 4 in favour of the petitioner Nalini Kant, the Civil Suit No. 1016 of 2006 of specific performance was presented and regarding possession, a receipt dated 12.10.2003, executed in favour of the petitioner, has been relied upon. It is recorded in the said judgment that as regards ownership and possession of the petitioner over the disputed property on the basis of said agreement of sale, she could not be held to be in possession of the said land because such agreement does not create any right. As regards the receipt dated 12.10.2003, on the basis of which possession is claimed to have been delivered to her, her possession could not be held proved on the disputed land because the respondent no. 4 himself had presented a civil suit for cancellation of said agreement of sale. Therefore from the documents on record the ownership and possession of the petitioner was not found proved as the proceedings were pending before the civil court regarding ownership and possession.
8. Further it is recorded that as regards the possession of the respondent no. 2 over the disputed property, no mutation has been done on the basis of sale deed executed in her favour. Admittedly, a crop of paddy was standing on the disputed land, regarding possession of which dispute had arisen. In these circumstances, there was full apprehension of breach of peace and, therefore, the proceedings drawn by the SDM, Dibai under Section 145(1) and 146(1) Cr.P.C. were wholly justified. For drawing such proceedings, it was not mandatory for the SDM concerned to be satisfied with the police report and, therefore, even if the police report has been ignored in respect of possession, the impugned order does not suffer from any illegatlity because the S.D.M. concerned could pass such an order even on being satisfied on the basis of some other source of information about breach of peace. The conclusion drawn by the S.D.M. concerned regarding the ownership and possession was wholly justified and well within his jurisdiction. There was dispute between the parties pertaining to possession as there was no documentary evidence found on record in respect of possession and, hence, need was felt by petitioner to get a receipt executed in her favour recording therein delivery of possession to her. Had this not been the case, there would be no need for the petitioner to get the receipt written regarding her being in possession. The sale of immovable property could be made only by registered sale deed. Hence, a suit and for specific performance of contract has been filed by the petitioner. Giving the above findings the learned Revisional Court has not found any infirmity/error in the impugned order of the S.D.M. Concerned and has rejcted the revision.
9. Heard the arguments of leared counsel for the petitioner and learned A.G.A. and perused the record.
10. Learned counsel for the petitioner has argued that the petitioner was in possession since 2003 till prior to the said property being attached. There was no apprehension of breach of peace as per the police report and yet the proceedings under Section 145(1) and 146(1) Cr.P.C. have been drawn illegally.
11. The reciept dated 12.10.2003 purported to have been executed by the respondent no. 4 in her (petitioner) favour clearly records that possession was handed over to her.. Impugned order, by the S.D.M. concerned had been passed without giving opportunity of hearing to her. Therefore, the impugned order needs to be set aside and the property deserves to be released in favour of the petitioner.
12. Learned counsel for the respondent nos. 2 and 4 has stated that the document, receipt dated 12.10.2003 is an un-registered document which can not pass any title/ownership to the petitioner as per provisions of Section 17 read with Section 49 of the Registration Act. Section 17(1)(A) lays down that the documents containing contracts to transfer for consideration, any immovable property for the purposes of Section 53-A of the Tranfer of Property Act, 1982, shall be registered, if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and, if such documents are not registered on or after the such commencement then they shall have no effect for the purposes of Section 53-A of the Transper of Property Act.
13. Further Section 49 of the Registration Act provides that no document required u/s 17 or by any provision of the Transfer of Property Act, 1982 to be registered shall (a) affect any immovable property comprised therein or (b) confer any power to adopt or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Hence, possession cannot be taken to have been delivered to the petitioner on the basis of such a document which was required to be registered.
14. It is evident from the evidence on record that both the parties have suits pending before the civil courts relating to title/ownership. It has come on record that the petitioner has only an agreement of sale in her favour and receipt dated 12.10.2003, whereupon she is relying to claim ownership as well as possession is unregistered. On the other hand, respondent no. 2 has alleged that she has a sale deed in her favour regarding the disputed land. The petitioner has filed a civil suit before the civil court for specific performance of agreement of sale, which is pending. It is evident that the agreement of sale cannot confer any title upon the petitioner and even possession cannot be prima facie proved on the basis of the said un-registered document. It would be pertinent to reproduce here the Section 17 and Section 49 of the Registration Act, which are as follows:-
Section 17 of the Registration Act provides as under:-
17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
[(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.]
49. Effect of non-registration of documents required to be registered No document required by section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
PROVIDED that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.
15. On the basis of above position of law, the said document dated 12.10.2003 did not prove that the petitioner was handed over possession. The matter is pending before civil court. Both the parties are contesting. In proceedings drawn under Section 145(1) and 146(1) Cr.P.C by the court of learned Magistrate has no jurisdiction to decide the ownership of the parties. It has also come on record that no documentary evidence or oral evidence has been adduced by either side to prove its possession and the courts below have rightly concluded that from the evidence on record provided by both the parties, they have failed to prove their possession over the property in question. It has also been concluded rightly by both the courts below that there exists an apprehension of breach of peace, which is of emergent nature which has led the court of S.D.M. to attach property, which has been handed over to supurdgar/receiver. No infirmity appears to be there in the impugned orders because till the ownership is determined by the competent court, it would not be proper to hand over the possession of property in question to either side. The parties must approach the civil court where the civil litigation is pending to get it expedited and as soon as the finding is given with regard to ownership, the parties may approach the court of S.D.M. concerned for release of the possession in its favour.
16. Learned counsel for the petitioner has relied upon Amresh Tiwari Vs. Lalta Prasad Dubey and another, AIR 2000 SC 1504, in which it has been held that it cannot be said that in every case where a civil suit is filed, proceedings under Section 145 Cr.P.C. would not lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court that proceedings under Section 145 Cr.P.C. should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the order of the civil court would be binding on the learned Magistrate.
17. Other citation relied upon by the learned counsel for the petitioner is Ram Sumer Puri Mahant Vs. State of Uttar Pradesh, 1985 (1) SCC 427. In this case, the High Court has refused to interfere in revisional jurisdiction against the order directing initiation of proceedings under Section 145 Cr.P.C. and attachment of property at instance of respondent no. 2 to 5. Undisputedly in respect of very property, there was a suit for possession and injunction being Title suit No. 87 of 1975 filed in the court of Civil Judge, 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 respondent no. 2 to 5 were the plaintiffs and court gathered from the counter affidavit filed in this court that an appeal had been carried from the decree of the civil Judge and the same was still pending disposal before the appellate court. The assertion made in the petition for Special Leave to the effect that respondent no. 2 to 5 were close relations, had not been seriously challenged in the counter affidvait. When a civil litigation is pending for property wherein the question of possession is involved and had been adjudicated, the court could hardly see any justification for initiating the parallel criminal proceeding under Section 145 of the Code. It was recorded that there was no scope to doubt or dispute the position that decree of civil court was binding on criminal court in a matter like the one before the court. The counsel was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of civil court, the criminal court should not be allowed to invoke its jurisdiction, particulary when possession is being examined by the civil court and party 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. Mulitplicity of litigation was not in the interest of parties nor should public time be allowed to be wasted over meaningless litigation. The court recorded satisfaction that parallel proceedings should not be continued and the order of learned Magistrate should be quashed. Holding thus, the court allowed the appeal and quashed the order of learned Magistrate by which the proceeding under Section 145 of the Code had been initiated and the porperty in disputed had been attached leaving it open to either partiy to move appellate Judge in the civil litigation for appropriate interim orders, if so advised, in the event of dispute relating to possession.
18. The facts of the both the above cases were different. There is no doubt that when civil proceedings are pending regarding the same property which involves dispute of ownership/possession, then and there should be no parallel proceedings in the criminal court under Section 145 and 146 of the Code, but as is made clear that in this case the S.D.M. has clearly mentioned in its order that there was a dispute of title relating to the ownership and possession of the properties, both the parites are claiming to be owners and in possession prior to the attachment of the same but none of them has been found successful in proving possession on the basis of documentary or oral evidence. Therefore, keeping in view the imminent threat to the breach of peace between the two sides, the proceedings under Section 145(1) and 146(1) Cr.P.C. have been drawn. The SDM concerned has clearly stated that the attachment is to continue only till the parties get their title decided from the civil Court because that is the domain of the Civil Court only and as soon as the parties get title decided in favour of either of them, the same would be treated entitled to get possession of the disputed property.
19. In the facts and ciricumstances of the case, which are peculiar to it, this court does not find any infirmity in the impugned orders. This writ petition deserves to be dismissed and is, accordingly, dismissed.
20. Petitioner may approach the civil court for getting the title and possession adjudicated over the disputed property expeditiously and judgment in this regard of the civil court shall be adhered to by court of S.D.M. The attached property would be released in favour of whoever is found to be its owner.
Order Date :- 22.2.2018 A.P. Pandey