The defendant/petitioners claim to be grand sons of one Chandra Kali whereas the respondent/plaintiffs claim to be purchasers of the suit property by virtue of sale deed from Chandra Kali.
Earlier a Case No. 19 of 1997 (Shiv Nazar Singh vs. Chandra Kali and others under Section 145/146 Cr.P.C. was instituted and the Sub Divisional Magistrate, Khaga, Fatehpur passed an order on 26.4.1999 under Section 146 Cr.P.C. attaching the property in dispute pending decision under Section 145 Cr.P.C. and handed over the property to the Supurdgar/receiver, petitioner no. 1 and the case is still pending. The respondents are not party to the proceedings under Section 145/146 Cr.P.C.
The respondents filed suit no. 85 of 2003 (Suresh Singh and another vs. Shiv Sevak Singh and others) permanent prohibitory injunction and also prayed for temporary injunction. An ex parte injunction was granted by the Civil Judge (Junior Division), Khaga, Fatehpur on 24.5.2003, petitioners filed objections and the trial Court rejected the objection and affirmed the temporary injunction by order dated 8.3.2011. The petitioners filed Misc. Civil Appeal No. 7 of 2011 (Sudhir Singh and others vs. Suresh Singh and others) which was dismissed by the Appellate Court. The orders dated 4.7.2014 and 8.3.2011 passed by the Courts below are under challenge in the writ petition.
The submission of learned Senior Counsel appearing for the petitioners is that once the suit property was attached under Section 146 Cr.P.C. then in a subsequent suit the civil court could not grant any temporary injunction and ignore the order passed by the Magistrate attaching the suit property and it is further contended that the alleged admission of the petitioners regarding possession of the respondents in paragraph 13 of the written statement is not an admission of possession but the assertion explains that plaintiff/respondents have illegally taken possession of the suit property in May, 2003.
The learned Senior Counsel in support of his submission relied upon the following cases: Durga Prasad vs. Mata Sharan and anothe1, Fateh Mohammad vs. State of U.P. And others2, Dwarika Prasad vs. Xith A.D.J. Kanpur Nagar and others3.
In rebuttal Sri Atul Dayal, learned counsel appearing for respondents contended that the petitioners have no concern with Chandra Kali widow of Ram Swaroop Singh. The name of Chandra Kali is recorded in the revenue records since 1958 and even during the consolidation proceedings, which ended in 1962-65, no objections was raised by the petitioners regarding her title or ownership and now being barred under Section 49 of the Consolidation of Holdings Act.
Chandra Kali, the absolute owner of the suit property vide sale deed dated 4.3.1997 transferred the property in favour of the respondents and possession was handed over to the respondents and their names have since been mutated in the revenue record on 11.8.2003.
The respondents are not parties to the proceedings under Section 145 Cr.P.C., which in any case, is summary proceedings initiated apprehending breach of peace, the question of title and possession cannot be decided in the proceedings under Section 145/146 Cr.P.C., civil court is the competent court to determine the question of possession in respect of the suit property, irrespective of the fact that the proceedings are pending under Section 145 Cr.P.C. The petitioners have admitted in their written statement that the respondents are in possession of the suit property.
Learned counsel for the respondents relied upon the following cases in support of his argument:
M.P. Peter vs. State of Kerala and others LAWS4, Shanti Kumar Panda vs. Shakuntala Devi5, Dharampal and others vs. Ramshri (Smt.) and others6, Harish and others vs. State and others7, Mata Bhikh vs. State8, Shakuntala Devi vs. The District Judge, Janunpur and others9, Vinai Kumar and others vs. Om Prakash and another10.
Rival submissions fall for consideration.
The Courts below have granted injunction in favour of the respondent/plaintiff as the petitioners in paragraph 13 of the written statement admitted the factum of possession and further assertion is that the respondents are taking two crops in an year on the suit property. It is not disputed that Chandra Kali was recorded as the owner of the property and she had an absolute right to transfer the property.
The question that needs to be answered is as to whether a civil court could grant injunction in respect of the suit property which was in the custody of receiver under Section 146 Cr.P.C.
The Supreme Court in Ashok Kumar vs. State of Uttarakhand and others11 considered the scope of Sections 145/146 Cr.P.C. Both the sections together constitute a scheme for the resolution of a situation where there is a likelihood of breach of peace. Under Section 146 Cr.P.C. a Magistrate has to satisfy himself as to whether emergency exists before an order of attachment is passed. Order of emergency is distinct from a mere case of apprehension of breach of peace. An order of attachment under Section 146 can be passed pending enquiry under Section 145 of the Code as to who is in actual possession. Paragraphs 6, 9 and 10 are as follows:-
"6. We are of the view that the SDM has not properly appreciated the scope of Sections 145 and 146(1), Cr.P.C. The object of Section 145,Cr.P.C. is merely to maintain law and order and to prevent breach of peace by maintaining one or other of the parties in possession, and not for evicting any person from possession. The scope of enquiry under Section145 is in respect of actual possession without reference to the merits or claim of any of the parties to a right to possess the subject of dispute.
9. ...........Under Section 146(1), a Magistrate can pass an order of attachment of the subject of dispute if it be a case of emergency, or if he decides that none of the parties was in such possession, or he cannot decide as to which of them was in possession. Sections 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace and Section 146 cannot be separated from Section 145,Cr.P.C. It can only be read in the context of Section 145, Cr.P.C. If after the enquiry under Section 145 of the Code, the Magistrate is of the opinion that none of the parties was in actual possession of the subject of dispute at the time of the order passed under Section 145(1) or is unable to decide which of the parties was in such possession, he may attach the subject of dispute, until a competent court has determined the right of the parties thereto with regard to the person entitled to possession thereof.
10. The ingredients necessary for passing an order under Section 145 (1)of the Code would not automatically attract for the attachment of the property. Under Section 146, a Magistrate has to satisfy himself as to whether emergency exists before he passes an order of attachment. A case of emergency, as contemplated under Section 146 of the Code, has to be distinguished from a mere case of apprehension of breach of the peace. The Magistrate, before passing an order under Section 146, must explain the circumstances why he thinks it to be a case of emergency. In other words, to infer a situation of emergency, there must be a material on record before Magistrate when the submission of the parties filed, documents produced or evidence adduced."
The Supreme Court in Bhinka vs. Charan Singh12 held that Magistrate does not purport to decide a parties title or right to possession of the land but expressly reserves that question to be decided in due course of law. The order under Section 145/146 Cr.P.C. is temporary order irrespective of the rights of the parties, which will have to be agitated and adjudicated upon by the parties in a competent forum in the manner provided by law. The life of the order is coterminous with the passing of a decree by civil Court. The orders under Section 145/146 Cr.P.C. of the Code are thus merely police orders and do not decide question of title.
In Shanti Kumar Panda (supra) Supreme Court relying on an earlier judgment in Jhummamal vs. State of M.P. (1988) 4 SCC 452 held a competent court cannot necessarily mean a civil court. The competent court means a court which has jurisdictional competence to determine the question of title or entitlement as to possession over the property forming subject matter of the proceedings. Paragraph 23 is as follows:-
"23. For the purpose of legal proceedings initiated before a competent court subsequent to the order of an Executive Magistrate under Sections 145/146 of the Code of Criminal Procedure, the law as to the effect of the order of the Magistrate may be summarized as under:-
(1) The words 'competent court' as used in sub-section (1) of Section 146 of the code do not necessarily mean a civil court only. A competent court is one which has the jurisdictional competence to determine the question of title or the rights of the parties with regard to the entitlement as to possession over the property forming subject matter of proceedings before the Executive Magistrate;
(2) A party unsuccessful in an order under Section 145(1) would initiate proceedings in a competent court to establish its entitlement to possession over the disputed property against the successful party. Ordinarily, a relief of recovery of possession would be appropriate to be sought for. In legal proceedings initiated before a competent court consequent upon attachment under Section 146(1) of the Code it is not necessary to seek relief of recovery of possession. As the property is held custodia legis by the Magistrate for and on behalf of the party who would ultimately succeed from the court it would suffice if only determination of the rights with regard to the entitlement to the possession is sought for. Such a suit shall not be bad for not asking for the relief of possession.
(3) A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceedings under Sections 145/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and weight before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of the Magistrate is only one out of several pieces of evidence.
(4)The Court will be loath to issue an order of interim injunction or to order an interim arrangement inconsistent with the one made by the Executive Magistrate. However, to say so is merely stating a rule of caution or restraint, on exercise of discretion by Court, dictated by prudence and regard for the urgent/emergent executive orders made within jurisdiction by their makers; and certainly not a tab on power of Court. The Court does have jurisdiction to make an interim order including an order of ad- interim injunction inconsistent with the order of the Executive Magistrate. The jurisdiction is there but the same shall be exercised not as a rule but as an exception. Even at the stage of passing an ad-interim order the party unsuccessful before the Executive Magistrate may on material placed before the Court succeed in making out a strong prima facie case demonstrating the findings of the Executive Magistrate to be without jurisdiction, palpably wrong or self-inconsistent in which or the like cases the Court may, after recording its reasons and satisfaction, make an order inconsistent with, or in departure from, the one made by the Executive Magistrate. The order of the court final or interlocutory, would have the effect of declaring one of the parties entitled to possession and evicting therefrom the party successful before the Executive Magistrate within the meaning of sub-section (6) of Section 145."
This Court in Vinay Kumar (supra) has held that the competent Court under Section 145/146 Cr.P.C. would include a revenue Court deciding the mutation case.
In Dharampal (supra) the Court held that under sub-section (1) of Section 146, the Magistrate has power to attach the property "until competent Court has determined the right of the parties" does not necessarily mean final determination, the determination may be tentative at an interim stage when the Court passes an order of interim injunction. Paragraph 9 is as follows:-
"9.It is obvious from sub-section (1) of Section 146, that the Magistrate is given power to attach the subject of dispute "until the competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession there or. The determination by a competent Court of the rights of the parties spoken of there has not necessarily to be a final determination. The determination may be even tentative at the interim stage when the competent Court passes an order of interim injunction or appoints a receiver in respect of the subject-matter of the dispute pending the final decision in the suit. The moment the competent Court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end. Otherwise, there will be inconsistency between the order passed by the civil court and the order of attachment passed by the Magistrate. The proviso to sub- section (1) of Section 146 itself takes cognizance of such a situation when it states that "Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of any breach of peace with regard to the subject of dispute'. When a civil Court passes an order of injunction or receiver, it is the civil Court which is seized of the matter and any breach of its order can be punished by it according to law. Hence on the passing of the interlocutory order by the civil Court, it can legitimately be said that there is no longer any likelihood of the breach of the peace with regard to the subject of dispute."
This Court in Harish vs. State (supra) held that order in proceedings under Section 145 Cr.P.C. which is not an order in rem, findings recorded by the Magistrate in such summary enquiry (Section 145) about possession shall not be an order in rem and order which is not inter se parties is irrelevant in another proceedings. The first principle on which the court proceeds is that the judicial proceedings cannot bind a person who was not a party to them.
This Court in Shakuntala Devi (supra) rejected a similar contention it was held that an order passed under Section 145 Cr.P.C. shall not bind a person not a party before the Magistrate and such person can espouse his cause in the suit despite the order under Section 145 Cr.P.C. Paragraph 8 is reproduced below:-
"8. Admittedly an order passed in proceedings under Section 145 Cr.P.C. is subject to the decision that might be passed in the civil suit and there is no second opinion with regard thereto. In the present case, the petitioner/plaintiff is admittedly not a party to the said proceedings. An order that might have been passed in respect of self same property, the same shall not bind the petitioner if she is not a party to the said proceeding. Therefore, she can establish and espouse her cause in the suit despite an order under Section 145, Cr.P.C. in which the petitioner was not a party....."
[Refer:- Mathura Lal Vs. Bhanwarilal (1979) 4 SCC 665) ] Applying the law in the facts and circumstances of the case at hand, it transpires from the record that Case No. 19 of 1997 under Section 145 Cr.P.C. was instituted before the Sub-Divisional Magistrate, Khaga, Fatehpur on an application dated 30.03.1999 moved by Shiv Nazar Singh, father of petitioners no. 3, 4 and 5 stating therein that there is a grave dispute between the parties regarding possession of the property and already police has taken proceedings under section 107/116 of Cr.P.C. The police submitted two reports, one on 01.03.1997 and the other on 31.03.1999 which state that there is dispute regarding possession and also there is apprehension of commission of heinous crime of murder by the parties, therefore, the property should be attached under Section 146(1) Cr.P.C. as crop is standing on the disputed property.
The Magistrate after perusal of the reports and the evidences led by the parties, came to the conclusion that the disputed property belongs to Chandra Kali and relying upon the police reports considered the case to be one of emergency, was passed an order under 146(1) Cr.P.C. for attaching the property in dispute pending proceedings under Section 145 of Cr.P.C. The order was passed on 26.04.1999. The disputed property was handed over to one Sri Rama Kant-Supurdgar.
In the Suit No. 85 of 2003 filed by the respondents, the petitioners in their written statement admitted that the suit property was transferred by Chandra Kali in favour of the respondents on 04.03.1997 and in paragraph no.13 of the written statement it was categorically stated that the respondents are in possession of the suit property and are taking two crops in a year on the property and earning one lakh per annum. The Courts below on the affirmative assertions made by the petitioners in their written statement granted injunction to the respondents. It is also averred that the Suit No. 48 of 2000, Shiv Nazar Singh and others Versus Chandra Kali and others, for cancellation of sale deed was instituted and which is pending between the parties.
The contention of learned counsel for the petitioners that once proceedings under Section 145 Cr.P.C. is pending and the property is under the custodia legis the civil court will have no jurisdiction to grant injunction, cannot be accepted for the simple reason that the order passed by the Magistrate attaching the property was under Section 146 (1) Cr.P.C. exercised on the ground of emergency pending proceedings under Section 145 Cr.P.C. The proceedings under 145 Cr.P.C., till date, is pending and it cannot be said that the situation of emergency or likelihood of breach of peace is continuing for the past 15 years since 1999.
The scheme of Sections 145 and 146 is that the Magistrate, on being satisfied about the existence of a dispute likely to cause a breach of the peace, issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements. Then he proceeds to peruse the statements, to receive and to take evidence and to decide which of the parties was in possession on the date of the preliminary order. On the other hand if he is unable to decide who was in such possession or if he is of the view that none of the parties was in such possession he may say so. If he decides that one of the parties was in possession, he declares the possession of such party. In the other two situations he attaches the property. Thus a proceeding begun with a preliminary order must be followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders. There is no half way house, there is no question of stopping in the middle and leaving the parties to go to the Civil Court. If there is no dispute likely to cause a breach of the peace, the foundation for the jurisdiction of the magistrate disappears. The magistrate then cancels the preliminary order. This is provided by Section 145 sub-section (5).
Sub-section 1 of Section 146 makes it clear the Magistrate is given power to attach the subject of dispute "until the competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof". The determination by a competent Court of the rights of the parties spoken of there, has not necessarily to be a final determination. The determination may be even tentative at the interim stage when the competent Court passes an order of interim injunction or appoints a receiver in respect of the subject-matter of the dispute pending the final decision in the suit. The moment the competent Court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end. Otherwise, there will be inconsistency between the order passed by the Civil Court and the order of attachment passed by the Magistrate.
It is not disputed by the petitioners that after transfer of suit property in favour of the respondents, the competent revenue court had mutated their names in the revenue record. The proviso to sub-section 1 of section 146 provides that the Magistrate would withdraw the attachment at any time if he satisfies that no longer any likelihood of any breach of peace with regard to the subject of dispute.
This Court in Harpal vs. Stae of U.P. 1995 All Cri C 316 : 1995 All LJ 840, held that once Civil Court adjudicates upon the question of possession after commencement of proceedings under Section 145 and order under 146(1) Cr.P.C., the order passed by Magistrate would come to an end. The Court observed as follows:-
"Where the Civil Court has already adjudicated upon the question of possession even though that may have been done by way of the interlocutory order on where such an adjudication is made by the Civil Court after the commencement of the proceedings under Section 145, Cr.P.C. and passing of the order under Section 146(1), Cr.P.C. In such a case, no doubt, the order passed by the Magistrate will come to an end or if the Civil Court's order already existed, the Magistrate will have no jurisdiction to commence proceedings under Section 145, Cr.P.C. or to pass an order of attachment."
Finally, it was argued on behalf of the petitioners that the principles under Clause (d) of Section 41 of the Specific Relief Act, 1963, which provides that an injunction cannot be granted to restrain a person from instituting or prosecuting any proceedings in criminal matter, is not applicable. The facts of the case are, entirely different from the facts of the present case. In the present case the plaintiff/respondents were not a party before the Magistrate under Section 145 Cr.P.C. The order passed by the Magistrate under Section 146 Cr.P.C. will not bind the respondents, being third party.
The proceedings under Section 145/146 Cr.P.C. are police powers and cannot be said that likelihood of breach of peace or emergency situation has continued for almost 15 years and more so on the admission of the petitioners that the respondents are in possession of the suit property and are taking two crops in a year and earning one lakh per annum.
For the reasons and law stated herein above, the writ petition is devoid of merit and is accordingly dismissed.
No order as to costs.
Order Date :- 10.7.2014 S.Prakash