1. Heard learned counsels for appellant, Sri Rakesh Kumar and respondent, Sri U.S. Sahai, Advocates.
2. The instant petition in hand is filed under Article 227 of the Constitution of India invoking the supervisory jurisdiction of this court over the order dated 30.7.2020 of learned Session Judge of District 'Barabanki' passed in exercise of his revisional power over the order dated 22.10.2020 of S.D.M., Nawabganj under Section 145/146 of the Criminal Procedure Code, 1973.
3. Briefly stating, the matter is with regard to dispute as to the harvesting of paddy crop in Plot no.950 situated in village Rustampurwa, Khaspariya, District Barabanki between two brothers, natural heirs of recorded owner Late Krishna Kumari wife of Late Sri Shivpal Singh her sons, namely the petitioner Virendra Singh and opposite party no.6, Brijendra Singh with opposite party no.2 to 5, her grand sons, the sons of opposite party no.6. Late Krishan Kumari who died on 14.8.2020 had executed a registered will on 4.7.2013 in her life time bequeathing all her properties movable and immovable to the grand sons opposite parties no.2 to 5. Since, Late Krishna Kumari was residing with her son Brijendra Singh (opposite party no.6) therefore, after the death the grandsons by virtue of the registered will dated 4.7.2013 came into possession of above said plot no.950 as rightful title holder and their name is also mutated in the revenue records in place of recorded tenure holder Late Krishna Kumari on the basis of her will.
4. Petitioner aggrieved from the 'will' dated 4.7.2013 filed a suit for cancellation of the same and for injunction bearing original suit no.1032 of 2020 on 1.10.2020 in the court of Civil Judge Junior Division which is pending for decision. Since he, was allegedly causing interference in use and enjoyment of property to the opposite parties therefore, they approached to the superintendent of Police, 'Barabanki' on 7.10.2020 who referred the matter to the local Police Chowki of Mohammadpur, P.S. Kotwali Nagar. A report was submitted by the Inspector in-charge of the said police post before Sub Divisional Magistrate that a dispute is running between the parties with regard to harvesting of paddy crops and they are made bound of order under Section 107/116 Cr.P.C. The Sub Divisional Magistrate passed order under Section 145 (1) Cr.P.C. and subsequently under Section 146 Cr.P.C. on 22.10.2020.
5. The order dated 22.10.2020 aforesaid was challenged by the opposite parties no.2 to 6 in revision before the court of District and Sessions Judge, whose decision allowing the revision is under challenge before this Court quoting Section 146 of the Cr.P.C. the learned Sessions Judge has observed:-
"Learned SDM has to record his satisfaction regarding emergency of situation and dilemma to the actual possessor over the disputed property. Learned SDM may exercise the power under Section 146(1) Cr.P.C. only after satisfaction to the emergent situation and unable to satisfy himself regarding the actual possessor of the disputed property. The power under Section 146(1) CrPC may not be exercised without satisfaction of an emergency.
Learned SDM has no jurisdiction to decide the right and title of parties. Any dispute in regard to right and title of the parties may only be decided by the Civil Court. In case of pendency of Civil Suit regarding right and title of parties in spite of issuance of injunction order by the Civil Court, the collateral proceeding under Sections 145, 146 CrPC is not proper.
Learned SDM has passed the order of attachment under section 146(1) CrPC merely on the ground of apprehension to breach of peace. Learned SDM has not recorded any finding or observation in regard to emergent situation. Learned SDM has not exercised jurisdiction properly while passing the impugned order. Mere apprehension of breach of peace is not sufficient for attachment proceeding under Section 146(1) CrPC."
6. To see whether the impugned order passed by the learned Sessions Judge in revision application is illegal or beyond the precedence of law laid down by Hon'ble Apex Court and our High Court on the subject two issues required to be carved out in the context of present case.
(i) whether the learned Sub Divisional Magistrate was right in passing order under Section 145(1) and subsequent order under Section 146 of the Cr.P.C.
(2) who just prior to the passing of the order by Sub Divisional Magistrate under Section 145 Cr.P.C. was in possession.
7. The two relevant Section viz. Section 145 and Section 146 of Cr.P.C. are quoted herebelow for the purpose of easy reference in discussion "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.
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."
8. Before discussing the issue no.1, it would be relevant to state about the report of Inspector In-charge of Police Post Mohammadpur, District Barabanki. He reported to the Sub Divisional Magistrate, "the title and possession of Plot No.947 belongs to the petitioner Virendra Singh, plot No.947 to Brijendra Singh and Plot No.950 to Late Krishna Kumari, their mother. The mother Krishna Kumari used to reside with Brijendra Singh. The dispute between the two sons of Late Krishna Kumari is with regard to the harvesting of riped paddy crops from the field of mother, late Krishna Kumari bearing Plot No.950. The paddy is sown by Brijendra Singh in the field of mother. Action under Section 107/116 and 116(3) has been against two rival brothers. Looking into the apprehension of breach of peace in future, he recommended action under Section 145/146 Cr.P.C. also." (Translated from Hindi version)
9. The Sub Divisional Magistrate sitting in judicial side to take decision for action under Section 145 Cr.P.C. has to apply it's mind and to see preliminarily as to which one of the two contesting parties was in actual and factual possession of the subject of dispute prior to the dispute/eviction.
10. Even the report of the local police itself shown the crops in dispute of harvesting were sown by the opposite party no.6 in the field of mother Late Krishna Kumari bearing plot no.950 in dispute. It is also shown in the said report that mother Late Krishna Kumari used to reside with her son Brijendra Singh. So far as apprehension of breach of peace is concerned, the report has also shown that parties to the dispute had been already bound down under Section 107/116 and Section 116 (3) for keeping peace. As such there was no occasion to pass order under Section 145(1) with regard to plot No.950, especially when the civil suit titled by the petitioner for the relief of cancellation of will and permanent prohibitory injunctions was pending for decision. Likewise, there was no occasion to pass order under Section 146(1) Cr.P.C.
11. Possession of the field (Araji Kashtkari) is implicit in the present matter by mutation in Khatauni and in the record of possession the Khasra in place of earlier recorded tenure holder not by natural succession but otherwise by a legal means of transfer by way of the will.
12. Possession of a field (Araji Kashtkari) is also factual and actual by means of peacefully sowing it. Harvesting is later and consequent part of sowing the paddies in the disputed plot no.950 by opposite party no.6 Brijendra Singh, as reported by the local police. If one applies mind over the above said facts which are admitted state of things, there would have no doubt as to the fact who was in actual possession of Arazi No.950 and the subject of dispute at that time of harvesting of crops.
13. The pendency of original suit no.1032/21 in the civil court also does not change the status of possession holder over the land, plot no.950 bequeathed by the recorded tenure holder in favour of her grandsons opposite parties no.2 to 5 and their father, Brijendra Singh (opposite parties no.2). The will was executed and registered far back on 4.7.1973 by the testator Smt. Krishna Kumari who was jointly living with the family of his son Brijendra Singh. The opposite parties no.2 to 6. The will for the purpose of title only has come into effect after the death of testator on 14.8.2020, otherwise factual possession of the plot no.950 of Late Krishna Kumari since her life time by reason of her residing jointly with them. It would be relevant to keep into mind the nature of posthumous transfer by will.
14. Will is a document spells out who should get one's assets after his/her death. It comes into effect and operation after it's maker posthumously and excludes all other natural heirs except the beneficiary under the testament. A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of Indian Succession Act, 1925. It's Section 2 (h) runs as under:-
"Section 2(h) "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death."
15. A will is, thus a legal declaration of the intention of a person with respect to his property, which he deserves to take effect after his death. Will has been defined as corpus juris secundum A "Will" is the legal declaration of a person's intention, which he wills to be performed after his death, or an instrument by which a person makes a disposition of his property to take effect after his death. A signed and duly witnessed will whether registered or unregistered will have effect and legal force for implementation of testator's intention after death. There is strong presumption in favour of genuineness of the will. If a party blames the will to be in-genuine by any reason viz. Fraud, forgery, coercion, incapacity or lack of competence or otherwise the initial burden of proof of such disqualification and suspicious circumstance lies on that person in accordance with Section 101 of the Evidence Act, which runs as under.
16. Section 101 of the Indian Evidence Act, 1872 runs as under:-
"101. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
17. Unless will is declared by a competent civil court to be null and void by any reason of suspicion as to it's genuineness, it passes of title and rightful possession to the beneficiary over the property bequeathed to him. The ''Civil Court' is the competent court to decide such issues.
18. Summing up the decisions on the two issues carved down hereinabove, the opposite parties no.2 to 5 were in rightful possession of the property plot no.950 aforesaid and there was no occasion for the Sub Divisional Magistrate either for passing preliminary order under Section 145(1) Cr.P.C. or subsequent order under Section 146(1) Cr.P.C.
19. This Court earlier in Sharvan Kumar Kaushal Vs. Sub Divisional Magistrate, Tehsil Utraula, Balrampur & Ors. (Misc. Single Writ No.24785 of 2021 decided on October 27, 2021) 2021 SCC Online All 782 has held as under:-
"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."
20. The Executive Magistrate cannot exercise the power conferred under Section 145 and 146 Cr.P.C. so as to put a clog upon the righteous use and enjoyment of an immovable property of which the holder is in peaceful and settled possession, unless a competent court of civil jurisdiction has ordered adversely to his right, title and possession and/or there is an emergent position of dispute between the rival claimants with regard to land's title and possession causing serious breach of peace.
21. In the present case where the respondents were in settled possession since the life time of the recorded tenure holder and by virtue of her will they continued with their possession over the land, having been duly mutated after the death of recorded tenure holder as testamentary successors. Thus use and enjoyment of the property possessed by them could not be disturbed in exercise of power under Section 145/146 of Criminal Procedure Code, 1973 by the S.D.M.
22. On the discussions made hereinabove, the judgment delivered by learned Sessions Judge in Criminal Revision No.54/2020, (Brijendra Singh Vs. Virendra Singh) does not suffer with error of law and the petition under Article 227 is devoid of legal grounds attracting interference of the Court in the revisional judgment, therefore, the petition deserves to be dismissed.
23. With the aforesaid observations, the writ petition is dismissed.
Order Date :- 21.12.2021 Gaurav/-