1. The case is called out.
2. Learned counsel for the petitioner Mohd. Waris Farooqui, Advocate and learned A.G.A. for the State Sri Balkeshwar Srivastav, Advocate are present in the Court.
3. The present writ petition is filed for seeking following relief:-
"Issue a writ, order or direction in the nature of mandamus commanding the Sub Divisional Magistrate (opposite party no.1) to decide the application moved by the private respondents under Section 145 (1) Cr.P.C. (Case No.1916 of 2021, Narsingh Narayan Mishra and another Vs. Shrawan Kumar Kaushal) within a time specified by this Hon'ble Court in the light of the report submitted by the police concerned and tehsil authorities (Annexure No.3 and 4 to the writ petition).
4. The Said relief is sought in the circumstance as stated in the pleading itself by the petitioner, as the Opposite Party No.1-Sub Divisional Magistrate, Tehsil Utraula, District Balrampur is not taking any decision upon the application moved by the private respondent (opposite party nos.2 & 3) namely Narsingh Narayan Mishra and Upendra Narayan Mishra under Section 145 Cr.P.C.
5. The petitioner has not stated the detailed description of the property under dispute between the contesting parties to the petition namely the petitioner and the private opposite party nos.2 & 3 nor has described the nature of the dispute, however, it is referred in para 3 of the petition that on 05.02.2021, an application was moved under Section 145 Cr.P.C. before the Court of Sub Divisional Magistrate, Tehsil Utraula, District Balrampur which is annexed as annexure no.1 to the petition. The application which is moved by the private opposite party nos.2 & 3 reveals a dispute with regard to the land property being part and parcel of the gata no.711 recorded in the revenue records as abadi. A map is drawn at the bottom of the application showing the possession on the spot of the disputed property abutted on the northern boundary, the house of opposite parties is situated, the southern boundary of the disputed property is abutting the house of one Ram Gopal. The opposite parties claimed themselves in possession of the said disputed land since before 78 years from the time of their ancestors.
6. It is further claimed by the opposite parties that the present petitioner (opposite party in application under Section 145 Cr.P.C. aforesaid) have illegally occupied and possessed forcibly the land without having any delay.
7. It is pertinent to state here that even the petition has not pleaded the title over the disputed land if belongs to the petitioner. An order of status quo was passed by the learned Sub Divisional Magistrate with the registration of application directing the parties to maintain status quo.
8. It is further stated in para 6 of the petition that Revenue Inspector/Tehsildar on the direction of Sub Divisional Magistrate conducted an inquiry and submitted it's report on 12.04.2021 alongwith statement recorded during the course of inquiry and an objection against the proceeding was filed by the petitioner on 09.03.2021 before the Sub Divisional Magistrate.
9. On 24.03.2021, a Civil Suit was filed before the Court of Civil Judge, Senior Division, Balrampur bearing Original Suit No.66 of 2021 (Virendra Prasad Vs. Santosh Mishra). The said defendant namely Santosh Mishra in civil suit is stated to be real uncle and cousin of the petitioner. The plaintiff has not impleaded the petitioner as party, therefore, he moved an application under Order 1 Rule 10 (2) C.P.C. to implead him as party-defendant. Accordingly, the Court passed the order directing the plaintiff for impleadment of petitioner-opposite party in the said suit on 09.08.2021. Copy of the said order alongwith copy of the application under Order 1 Rule 10 (2) C.P.C. is also made annexure to the petition.
10. Copy of the order dated 24.03.2021 passed by the trial court shows that on the consensus of the plaintiff of the Original Suit No.66 of 2021 and then existing defendant, Santosh Kumar, the Court finding sufficient ground to issue an interim injunction order, directed the parties to maintain status quo on the property detailed and described as a part of land having area 16 X 85 feet abutting at northern boundary of the house of Narsingh Narayan Mishra and Upendra Narayan Mishra, the present private respondent nos.2 & 3 and at southern boundary, the house of Ram Gopal exists.
11. It is thus clear that the disputed property in proceeding under Section 145 Cr.P.C. as well as in civil suit bearing Original Suit No.66 of 2021 pending in the Court of Civil Judge, Senior Division, Balrampur is the same and status quo order is passed by both the Courts with regard to the property.
12. The proceeding under Section 145 Cr.P.C. pending in the Court of Sub Divisional Magistrate, Tehsil Utraula, Balrampur binds from the status quo order, the present private respondent, Narsingh Narayan Mishra and Upendra Narayan Mishra (applicants) and Sharvan Kumar Kaushal. The status quo order passed by the Civil Court binds the plaintiff (Virendra Prasad Vs. Santosh Mishra) as well as Sharvan Kumar Kaushal who got impleaded himself in the suit with regard to the same property, which is subject matter of the proceeding under Section 145 Cr.P.C. referred above.
13. In the light of the aforesaid facts as pleaded in the petition and as evident from the copy of the documents made annexures thereto, the moot question is that whether a direction to the Sub Divisional Magistrate, Tehsil Utraula, District Balrampur may be passed to proceed under Section 145 Cr.P.C. expeditiously and to decide the case, during the pendency of the civil suit pending for decision over the right, title and interest of the parties in the same property.
14. For the purpose of easy reference, Section 145 Cr.P.C. is quoted hereunder, of which scope and application is to preserve the possession of the party on the date of dispute reported to the Sub Divisional Magistrate.
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."
15. According to the Sub Section 6(a) of the Section 145 Cr.P.C., if the Sub Divisional Magistrate is directed as sought by the petitioner in relief no.1, to decide and conclude the case under Section 145 Cr.P.C. pending before him then he would have a duty under order of this Court to decide 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. It clearly means and purport causing disturbances in the status-quo of the property.
16. The order of status quo passed by the Civil Court not only binds the parties to the suit or proceeding but also to others who cause to disturb the status already existing when the order is passed by the Court.
17. Until the order of status quo passed by the Civil Judge, Senior Division, Balrampur in Original Suit No.66 of 2021 is in effect and continuing, the status with regard to the possession cannot be disturbed or altered.
18. It would be lawful for the petitioner to seek remedy before the Civil Court itself as he himself is party to the Original Suit No.66 of 2021 pending in the Court of Civil Judge, Senior Division, Balrampur. The Sub Divisional Magistrate, Tehsil Utraula, Balrampur cannot be directed as sought in the petition to proceed under Section 145 Cr.P.C. and conclude it this way or that way.
19. Civil Court, is the only Court to decide the right, title and interest of the parties to have rightful possession over the property so far as Sub Divisional Magistrate's Court (Criminal Court) working under Section 145 Cr.P.C. is concerned, it can only decide possession of the party on the date of dispute. During the pendency of the civil suit with regard to the right, title and interest and right to possession over the property is pending, Criminal proceeding neither can be initiated nor decided prior to the decision of the Civil Court.
20. In Ram Sumer Puri Mahant Vs. State of U.P. and Others reported in (1985) 1 SCC 427, it is held:-
"When a civil litigation is pending for the same property wherein the question of possession is involved and the 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, there is no justification for initiating a parallel criminal proceeding under Section 145 Cr.P.C. Multiplicity of litigation is not in the interest of the parties nor should pubic time be allowed to be wasted over meaningless litigation. Therefore, the parallel proceeding should not continue and the order of the Magistrate directing initiation of such a proceeding under Section 145 Cr.P.C. must be quashed."
21. With the aforesaid observations, the present writ petition is dismissed.
Order Date :- 27.10.2021 Saurabh