ORDER
Virendra Saran, J.
1. Smt. Minta Devi wife of Mithai Lal and her sons Vijay Kumar, Sanjai Kumar and Ajai Kumar have preferred this revision against the judgment and order dated 23-3-1996 of Shri Brahm Singh, Sessions Judge, Sonbhadra, allowing Criminal Revision No. 40 of 1995 against the judgment and order dated 11-9-1995 of Shri Yogesh Sri vastava, S.D.M. Robertsganj in Criminal Case No. 8 of 1995 under Section 145, Cr. P.C. The learned S.D.M. had held that the applicants, first party in the proceedings were in possession of the disputed property and he directed the sole respondent Anant Ram alias Antu the second party in the proceedings, not to interfere with the possession of the first party. By means of the impugned order the learned Sessions Judge has allowed the revision and has released the property in favour of Anant Ram responded holding that he was in possession of the disputed property on the date of the preliminary order.
2. The disputed property consisrs of Abadi plot Nos. 1577, 1578 and 1579 (area 18 dhurs measuring 16 ft. x 77 fts.) The proceedings started on the application of Smt. Minta Devi who alleged that even though she was in possession Anaur Ram wanted to take forcible possession of the property and thus there was apprehension of breach of peace. On 10-7-1995 the learned S.D.M. called for a police report which came on the very next day supporting the allegations of Smt. Minta Devi and it was further mentioned in the police report that there was a broken thatched hut over the disputed land. Accordingly on 22-7-1995 the learned S.D.M, passed the preliminary order directing both the parties to produce their evidence in support of their respective claim of possession, On the same day. the learned Sub-Divisional Magistrate passe 1 another order under Section 146, Cr. P.C attaching the property. It may be observed here the attachment order it was mentioned that there may be breach of peace at any time. However the order fails to record in clear words the satisfaction of the learned S.D.M. that it was a case of emergency. On the following day, that is, on 23-7-1995 the police attached the property. In the attachment memo there is a mention that on the spot there was a hut made of tin.
3. On the very next day i.e. 24-7-1995 respondent Anant Ram alias Antu filed an objection. He also filed his affidavit. It was pleaded by Anant Ram that he and his father late Satya Narain were in possession for the last 34 to 35 years as tenant of one Todarrnal of Mohalia Budulkhandi in the city of Mirzapur. They carried on 'ARMAT' of Gur and other business styled as 'Satya Narain Prasad Anant Ram' and after the death of his father the business of the firm was carried on by himself (Anant Ram) and his brother Santosh Kumar. It was stated that the landlord, Todarrnal had authorised Smt. Rajwanti wife of Late Chhotan Lal to receive the rent and Smt. Rajwanti had also kept a Gumti in which she also resided. Thus respondent Anant Ram and his brother Santosh Kumar were carrying on 'Arhat of Gur and business in salt, chilli and other general merchandise and were in possession of the disputed property. The further case of respondent Anant Ram was that in his life time Todarmal executed will in favour of Rajwanti because Todarmal had lot of regard for Smt. Rajwanti. She as well as her husband Chhotan Lal had been with Todarmal throughout Todarmal' s life and served him. It was further stated that in the year 1981 the first party Mithai Lal husband of Minta Devi applicant started threatening respondent Anant Ram etc. to oust them by force and hence Civil suit being C.S. No. 233 of 1991 for injunction was filed by Anant Ram Santosh Kumar and on 24-12-1991 the Court issued notice and granted injunction prohibiting the defendants from evicting the plaintiff of the suit. Amongst the defendants Mithai Lal (husband of applicant No. 1) Minta Devi and father of applicants Vijay Kumar, Sanjai Kumar and Ajai Kumar) was impleaded as defendant and the injunction was still in force. Smt. Rajwanti had also filed a suit in the Court of Civil Judge for declaration of her title which is pending. The case of Anant Ram respondent further is that the applicants had conspired with the local police and the present proceeding under Section 145, Cr. P.C. were the outcome of their conspiracy and he was suffering as the police had locked his business premises on 23-7-1995.
4. Smt. Rajwanti also filed her objection on the same lines.
5. The case set up by Smt. Minta Devi in the present proceedings under Section 145, Cr.P.C. was that she had been in possession of the property from the date of a sale deed executed in her favour and she denied that respondent Anant Ram had any concern with the property. The averments in her written statement are not very specific but she has stated in para 6 of her written statement that on the basis of the sale deed in her favour, the District Magistrate, Robertsganj, had ordered mutation in her favour.
6. In support of her claim applicant Minta Devi tiled four papers. She filed photo copy of sale deed dated 23-12-1991 alleged to have been executed in her favour by Ratan Chand son of Todarmal, photocopy of site plan of certain shops which were to be constructed on the disputed property, notice of the Executive Officer, Town area, Robertsganj and photo copy of Abadi Khasra of town area Robertsganj.
7. On the other hand respondent Anant Ram filed a number of documents. He filed copy of plaint of suit No. 233 of 1991 dated 24-12-1991 Anant Ram Santosh Kumar plaintiffs v. Rat an Chand, Smt. Rajwanli and Milhia Lal (husband of applicant No. 1) defendants, copy of injunction order dated 24-12-1991 passed by Munsif Robertsganj in the above mentioned suit restraining the defendants to evict the plaintiffs and the copy of the report of Vakil Commissioner in Suit No. 233 of 1991. 1 pause here to mention that in his report the Commissioner has mentioned that on the spot he found that there existed an old room covered with tin shed measuring 6 ft. x 20 ft. on which there was a rate board of Anant Ram Santosh Kumar and to the north of the room there existed a 'Gomli.' The report of the learned Commissioner is accompanied by a site plan prepared by him giving measurements. Anolherpaper which has been filed by respondent Anant Ram was the objection of Mithai Lal in the Civil Suit. Anant Ram has also filed six copies of application for information regarding proceeding in Suit No. 233 of 91. He has also filed photo copies of receipts of Mandi Samiti filed in the suit. He has filed photo copy of plaint of the suit filed by Smt. Rajwanti in 1994 against the present applicants and Ratan Chand and one another. He has filed photo copy of the will executed by Todarmal ,in favour of Smt. Rajwanti. He has also filed licence granted by Mandi Samiti which was valid till 30-6-1995. He has also filed photo copies of licence granted to him by the Mandi Samiti for various years. Another document filed by Anant Ram was the payment made to Krishi Utpadan Mandi Samiti. He has also filed photo copy of chalans regarding payments of trade tax.
8. As mentioned earlier the learned Sub-Divisional Magistrate held that the applicants first party were in possession. In revision the learned Sessions Judge has taken pains to go through the entire mass of documentary evidence and he has held that the property was in possession of respondent Anant Ram. The learned Session Judge has observed that the learned Sub-Divisional Magistrate has passed the order for extraneous (sic) considerations.
9. I have heard learned counsel for the applicants and learned counsel for respondent, Anant Ram at considerable length.
10. It has been argued by the learned counsel for the application that earlier respondent Anant Ram had filed Crl. Misc. No. 2539 of 1995 under Section 482, Cr. P.C. in which a single Judge of this Court, on 23-8-1995, while issuing notice directed the learned S.D.M. to endeavour to dispose of the proceedings under Section 145, Cr.P.C. expeditously. Learned counsel for the applicant has submitted that in view of this order it was not open to the learned Sessions Judge to held that the proceedings under Section 145, Cr.P.C. were not competent on the ground that Civil Suit regarding the same property was pending and an injunction order was in force.
11. I am unable to agree with the above submissions of the learned counsel for the applicants. In the application under Section 482 Cr.P.C. there was no adjudication on merits and this Court only directed the learned Sub-Divisional Magistrate to expeditiously dispose of the proceedings under Section 145, Cr.P.C. Thereafter the learned Sub-Divisional Magistrate disposed of the proceedings under Section 145, Cr.P.C. Respondent Anant Ram was entitled to challenge the order on merits in revision before the learned Sessions Judge. The learned Sessions Judge has not disregarded any direction of this Court as no point of fact or law had been adjudicated upon in the application under Section 482, Cr.P.C.
12. Another contention of the learned counsel for the applicants is that the learned Sessions Judge was dealing with a revision and at the most he could have remanded the case back to the learned S.D.M. for recording proper findings. Reliance is placed on the case of Gulaboo v. State 1988 All WC 183. However it may be noted that the applicants have come up in revision to this Court and the exercise of the revisional jurisidiction is discretionary. In case no failure of justice has occasioned it is not necessary for this aside the order of the learned Sessions Judge even though the conclusions arrived by him are correct. I have perused the judgments of the two Courts below and the record. It does appear that the judgment of the learned Sub-Divisional Magistrate is one sided and he has evaded to advert to the voluminous documentary evidence adduced by respondent Anant Ram. The another sheet of the judgment of the learned Sub-Divisional Magistrate is the order of mutation passed by the Collector, Sonbhadra in favour of the applicants. Learned counsel for the applicants has emphasized that in a case of disputed mutation, the mutation has to be granted in favour of the person who is found to be in possession over the property in dispute. However, it is significant to note that the applicants did not have the courage to file the copy of the order of the Collector passed in mutation proceedings and have simply filed copy of khasra abadi of town area Robertsganj in which it is mentioned that on the basis of the order dated 26-4-1994 of the Collector Sonbhadra, the name of the applicants was being mutated. The Khasra does not show what findings the Collector had recorded. Learned counsel for respondent Anant Ram has produced certified copy of the order dated 26-4-1994 of the Collector, Sonbhadra in Nazul Case No. 5 of 1992 which I have retained on the record. A perusal of the order goes to show that the Collector has not recorded any finding regarding possession. The order of the Collector, Sonbhadra (translated in English) reads thus :-
Heard parties.
Ratan Chand son of Todarmal, resident of Mohalla Budenath Mandir, Galli Shehar, District Mirzapur has executed a registered sale deed of the land and house in favour of Smt. Minta Devi wife of Mithai Lai, Vijai Kumar, Sanjai Kumar and Ajai Kumar sons of Mithai Lal. On the basis of which the applicants want to get their names mutated. Objectors Anant Ram Santosh Kumar have objected for mutution alleging themselves to be tenants. Similarly Rajwanti has challenged the sale deed and prayed for not making mutation. After hearing parties and perusing record, it is clear that the sale deed in favour of the applicants is registered one and this Court cannot declare it invalid. Tenancy does not come in the way of mutation. Hence on the basis of the sale deed the name of applicants be entered in the interest of justice. Accordingly in plot Nos. 1577, 1578 and 1579 (1/3 portion) the name of Ratan Chand be expunged and the name of applicants be entered. Let the file be sent to Executive Officer, Rabertsganj, for compliance.
Sd/- K.M. Sant,
Collector, Sonbhadra,
D/-26-4-1994.
13. The above order goes to show that the learned Collector did not advert to the question of possession. He did not even endeavour to find out whether the applicants or Rajwanti and Anant Ram or which of them was in possession. Thus the sole ground on which the learned S. D. M. based his conclusion regarding possession of the applicants does not at all exist. Moreover the mutation order which was based on the alleged sale deed executed by Ratan Chand son of Todarmal has no bearing on the tenants 'right to possession'. It was only in respect of Nazul rights which the applicants claimed to have acquired on the strength of the sale deed.
14. The case of respondent Anant Ram is that he and his brother Santosh Kumar were carrying on their Arhat of Gur. The learned S.D.M. has observed that there was no godown on the spot and only a broken hut was there. He further observed that 'Gomti' cannot be characterised as godown. The observation appears to be based on the police report but I am constrained to observe that the police report was incorrect and false. The police report dated 11-7-1995 shows that there was only a broken thatched hut over the land. As against this the report of the Vakil Commissioner in suit No. 233 of 1991 is there in which there is a mention of a room covered with tin shed measuring 6 ft. x 20 ft. The Commissioner has further reported that outside the room a rate board of Anant Ram Santosh Kumar was fixed. He also found stack of salt bags at some distance from the shop. In its report the police has deliberately mentioned the shop as a broken thatched hut but the same is belied by the memo of attachment dated 23-7-1995 in which it is specifically mentioned that there was a hut made of tin. Later on when the revision was allowed and the attachment was lifted in pursuance of the order of the learned Sessions Judges the police reported on 30-3-1996 that possession was given to respondent Anant Ram after breaking open the lock put by the receiver. This report of the police is paper No. 29 Kha/3 on the record of the lower revisional Court. All the above makes it clear that the premises which was attached was not merely a broken and dilapidated thatched hut the same was covered with tin and had walls and door upon which lock had been put. It appears that the local police while submitting its report for initiating proceedings under Section 145, Cr.P.C. was in collusion with the applicants and deliberately submitted an incorrect and false report.
15. The licence granted by Krishi Utpadan Mandi Samiti for various years and one licence valid upto 30-6-1995, receipt of payment to the Mandi Samiti and challans regarding payment of Trade tax of M/s. Anant Ram Santosh Kumar lend countenance to case of the respondent that respondent Anant Ram and his brother Santosh Kumar were carrying on their business in the style 'Anant Ram Santosh Kumar'. In the written statement of the applicants there is not even a whisper that this business was being carried on at some place other than the disputed property. The learned S. D. M. has completely overlooked to note all the above important facts and has given a one sided judgment and in these circumstances it is not a fit case for the exercise of the discretionary revisional jurisdiction to set aside the order of the learned Sessions Judge.
16. It is, no doubt, true that a revisional Court should interfere with the findings of an inferior Criminal Court with circumspection and not in a routine manner but at the same time the revisional Court is not helpless. When the revisional Court class for the record of an inferior Criminal Court under Section 397 of the Code, it enjoys power to examine the correctness or propriety of the findings of the Court below, while exercising revisional powers the revisional Court exercises powers of an appellate Court by virtue of Section 401, Cr.P.C. In its erudite articulation in the case of Shankar v. Krishnaji AIR 1970 SC 1, while construing the provisions of Section 115 of the Code of Civil Procedure the Supreme Court observed (at p. 4 of AIR):-
Basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense.
17. I am of the view that under the Code of Criminal Procedure the revisional Court enjoys powers which are still wider. A reference to the provisions of Sections 397, 401 and 399 of the Code may be made. These Sections state :-
397. Calling for records to exercise powers of revision - (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court ... for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and may....
(emphasis supplied).
401. High Court's powers of revision. - (1) In the case of any proceedings the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.
(Emphasis supplied).
399. Sessions Judge's powers of revision - (1) in the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401.
(2)...
(3)...
18. The above provisions make it clear that the Court of Session is vested with jurisdiction to go into the correctness or the propriety of the findings recorded by the Courts below and the learned Sessions Judge did not commit any error in allowing the revision.
19. There is yet another ground on which the learned Sessions Judge has set aside the order of the learned S. D.M. Civil Suit No. 233 of 1991 regarding the same subject matter is pending and there is also an effective injunction order dated 24-12-1991 which is still in force.
20. Learned counsel for the applicants has submitted that the suit was filed by Anant Kumar Santosh Kumar but in the proceedings under Section 145 only Anant Ram is the second party. In my view the argument of the learned counsel for the applicants is of no help. In their application under Section 145 of the Code the applicants chose to implead only Anant Ram as opposite party and left out Santosh Kumar. Anant Ram being a partner of Anant Ram Santosh Kumar was certainly entitled to contest the proceedings on the ground that an injunction order of the Civil Court was in existence in respect of the same property.
21. In this very continuation another submission of learned counsel for the applicants be also taken note of. He has urged that the Civil Suit was filed against Mithai Lal, Ratan Chand and Smt. Rajwanti, and the applicants were not party in the suit. Learned counsel for respondent Anant Ram has replied that Mithai Lal is none else but the husband of applicant Smt. Minta Devi and father of applicants Vijai Kumar, Sanjai Kumar and Ajay Kumar. He added that Mithai Lal got a sale deed executed in the name of his wife and children but he was the real man and the threat to evict came from him. Hence, the civil suit was filed against him but subsequently it transpired that the sale deed was in the name of his wife and sons and therefore the applicants have been impleaded as defendants in the suit. Learned counsel for the applicants has not been able to join issue on the fact that the applicants have been impleaded as defendants in the suit. At any rate the fact remains that from the very beginning the parties were substantially the same and the property in proceedings under Section 145 of the Code is the same in respect of which injunction had been granted. In the case of Sheomurti Pandey v. Bharastilal Pandey 1987 All Cri C457 (2) : 1988 All LJ 123, this Court observed that the concept of parties in civil suit is different than in the proceedings under Section 145. The Court observed (at p. 124 of All LJ) : -
When a plaintiff files a suit he would make those persons as defendants against whom he wants to claim some positive relief in view of the provisions of Order 1, Rule 3, C.P.C. whereas in proceedings under Section 145 of the Code all those persons who were concerned with breach of peace in respect of the land or building, would be made parties either at the behest of the local police or at the behest of some private individual and such party would be directed to attend the Court of Executive Magistrate on specified date and time and would put in their written statements of their respective claims. It is, therefore, obvious that the concept of parties under Section 145 is entirely different from the concept of parties in civil suit. Except in some cases the parties to a civil suit need not be, and possibly could not be, the parties in proceeding under Section 145 of the Code.
22. I am in respectful agreement with the view expressed in the case of Sheomurti Pandey (1988 All LJ 123) (supra). The observations of the Supreme Court in the case of Ram Sumer Puri Mahant AIR 1985 SC 472 to which 1 will refer shortly hereinafter also lend countenance to my view.
23. Learned counsel for the applicants has placed reliance on the case of Kalap Din v. State 1970 All WR 410 : 1970 All LJ 873 wherein it has been observed that the decision of a Civil Court does not oust the jurisdiction of a Magistrate under Section 145, Cr.P.C. nor such a decision is binding on the Magistrate. It has further been observed that it is not open to the Magistrate to drop the proceedings or to pass an order on basis of the decision of the Civil Court and the Magistrate must conclude the proceedings by applying his own mind. On the strength of the above ruling it has been argued that even the pendency of parallel civil proceedings does not, in any way, affect the proceedings under Section 145, Cr.P.C. In the case of Ram Sumer Puri Mahant v. State of U.P. AIR 1985 SC 472, the Supreme Court has expressed a view contrary to the old Allahabad view in Kalap Din's case (1970 All LJ 873) (supra). The Supreme Court observed (Para 2 of AIR) :
Indisputably, in respect of the very property 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 an 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 position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of 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 pendency of the dispute Multiplicity of litigation is not in the interest of the parties nor should public time be allowed So 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.
24. This Court is bound by the law laid down by the Supreme Court. Ram Surner Puri Mahanf's case (AIR 1985 SC 472) has been followed in a very large number of judicial pronouncements of this Court. In a recent pronouncement of the Supreme Court in the case of Dharampal v. Smt. Ramshri (1993) 1 JT (SC) 61 : 1993 All LJ 691, a bench of the Supreme Court consisting of Hon'ble P.B. Sawant and Hon'ble R. M. Sahai, JJ. observed (at p. 694 of All LJ) .-
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 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. 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.
25. Lastly (earned counsel for the applicants has relied on the Case of P.C. Sachdeva v. The State AIR 1994 SC 1436, and has argued that the proceedings under Section 145. Cr.P.C. cannot be put to an and on account of the pendency of a civil suit. The facts of P.C. Sachdeva's case were peculiar. An unworthy son wanted to oust his own father and wanted to deny his father the right to reside in a house in which the father and the son were co-owners. R. M. Sahai, J. speaking for the Bench (while agreeing with the Supreme Court's articulation in the case of Ram Sumer Puri Mahant AIR 1985 SC 472 observed at Pp. 1438 and 1439 of AIR:....
In equity and justice the appellant has still stronger case. On own showing of the respondent the property is ancestral. The behaviour of the son is cruel and unjust. The learned counsel for the respondent during arguments stated that the son was willing to keep his father with him. What a charitably disposed son the respondent appears to be. He is willing to permit the father to live with him but not agreeable to permit him to occupy a separate portion which was in his possession. In the right of the averments made by the son in the affidavit filed in this Court and the alleged misbchaviour by him and his family members this appears to be only an excuse for preventing the father from living in peace in the end of his life.
26. The Supreme Court held that mere dropping of the proceedings under Section 107, Cr. P.C. was not a ground to drop the proceedings under Section 145, Cr.P.C. The Supreme Court further observed that since the claim or title were not in dispute in the Civil Suit the proceedings under Section 145, Cr.P.C. should not have been dropped. It, is not clear as to what was the nature of the suit in the case before the Supreme Court. The present case is clearly distinguishable as the plaint in the civil suit shows that there is specific claim of possession by respondent, Anant Ram, on the ground of tenancy of the disputed property and the. Civil Court has granted an injunction which is still in existence. In a very recent case, Harpal v. State of U.P. 1995 All Cri C 316 : 1995 All LJ 840 this Court has held (at p. 842 of All LJ) :
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.
27. The present case squarely comes within the above category and for this reason also the judgment of the learned S.D.M. in proceedings under Section 145, Cr.P.C. is bad.
28. In the premise I am of the view that this revision has no force. However any observation that has been made shall not be taken as binding in the civil suit which shall be decided on its own merits.
29. Revision dismissed.