Judgment:
K.L. Issrani, J.
1. By this petition, the petitioner challenges the legality and validity of the order dated 12-8-1992 passed by the Executive Magistrate, Anandapur, in Criminal Misc. Case No. 46 of 1992 dropping the proceedings Under Section 145 of the Code of Criminal Procedure as being not maintainable and rejecting his application Under Section 146(1). Cr PC for attachment of the disputed land.
2. Submission of the learned counsel for the petitioner is that in view of the admitted position that no interim arrangement whatsoever has been made by the competent Civil Court pertaining to the subject-matter of the dispute, the action of the learned Magistrate in dropping the proceeding is per se illegal.
3. The petitioner before this Court was the first party before the Executive Magistrate in the proceedings Under Section 145. Cr PC. The second party filed an objection to the maintainability of the proceedings Under Section 145, Cr PC on the ground that the disputed land is the joint family property and in the settlement record*of-rights it stands in the names of both the parties, and that there has been no partition by metes and bounds. Hence the proceedings are not maintainable. The further submission was that the matter is not of any emergency nature and the provisions contained in Section 146(1) cannot be attracted- Submission of the learned counsel for the petitioner is that the opposite parties, who were the second party to the petition, have wrongly got their names entered into the record-of-rights and that the names of the fathers are not the same and the opposite parties have no right. title or interest to claim the lands and also the possession. Admittedly, the suit has been filed by the opposite parties for partition and separate possession to which the petitioner is also a party. The suit is pending in the Civil Court.
4. Where the parties had a right to joint possession of the property in dispute, the Magistrate has no jurisdiction to institute proceedings in such cases as the dispute was between co-owners regarding the mode of possession and was not, therefore, one contemplated by the Section. The actual possession of part of the joint property by one member being on behalf of the other members, is no ground to initiate the proceeding Under Section 145. From the own showing of the petitioner, it appears that the question of title is disputed for which the civil suit is pending for decision.
5. In AIR 1985 SC 472 (Ram Sumer Puri Mahant v. State of U. P. and Ors.), it has been held that when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding under Sac. 145, CrPC would not be justified and the parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, trie 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 to be wasted over meaningless litigation. On this, the learned Counsel has placed reliance on 1989 (II) OLR 495 (Dhirendranath Panda alias Misra v. Niranjan Kumar Misra and Ors.) saying that the Executive Magistrate has always jurisdiction to initiate and continue a proceeding Under Section 145 to prevent breach of peace irrespective of pendency of civil suit unless interim order of the Civil Court in respect of possession of the disputed land is in operation. But, in the very decision, it has been held that if civil suits are pending and a petition for temporary injunction filed by the opposite party in one of the suits is also pending, it is not necessary to take recourse to parallel proceedings Under Section 145, Cr PC. In such case, the preliminary order passed Under Section 145, Cr PC was quashed No doubt, no such interim application is pending before the Civil Court, but as per the decision of the apex Court in AIR 1985 SC 472 {supra), the parties are in a position to approach the Civil Court for an interim order such as injunction or appointment of receiver for adequate protection of the property during the pendency of the dispute In view of this, the parallel proceedings Under Section 145, Cr PC cannot be permitted to continue.
6. The learned counsel has then relied on the principles laid down in a recent judgment of the apex Court reported in AIR 1994 SC 1436 (Prakash Chand Sachdeva v. The State and Anr.) on the point that the proceedings under Sec 145, Cr PC need not necessarily be dropped on the ground that the proceedings Under Section 107 are dropped nor on the ground that the pendency of civil suit for injunction when suit is not based on title but raises question of dispossession of a co-owner by another co-owner. This very case distinguishes the principles laid down in AIR 1985 SC 472 (supra) only on the ground that In case no question of title is involved and the dispute is only regarding possession, the proceedings Under Section 145, Cr PC are not barred and continue. But, admittedly, in the present case the civil suit pending before the Civil Court is based on title. As such, it cannot be said that the dispute between the parties is regarding the possession simplicity therefore, the principles laid down in AIR 1994 SC 1436 (supra) are not applicable to the facts of the present case.
7. The provisions of Section 146, Cr PC are ancillary to the provisions contained in Section 145, Cr PC. It is only in the case of emergency when the Magistrate at any time after making the order under Sub-section (1) of Section 146 considers the case to be one of emergency or if he decides that none of the parties was then in such possession as 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 ti'e parties thereto with regard to the person entitled to the possession thereof. None of the cases arise in this case as it appears after looking to the pleadings of the parties and the entries in the record. The Executive Magistrate taking the disputed property to be a joint property has not thought proper to entertain the proceedings Under Section 145, Cr PC. By the impugned order dated 12-8-1992, the learned Magistrate has dealt with the application of the petitioner Under Section 146(1). Ct PC and has considered not to allow the same in view of pendency of the suit between the parties and the learned Subordinate Judge, Anandapur before whom the suit is pending, is competent to decide the right, title and possession of the parties and it is not necessary to continue a parallel proceeding in this Court. In view of this, no illegality appears to have been committed by the Executive Magistrate. In case the petitioner wants to take resort to speedy measures for protecting the property, he is free to move the competent Civil Court of law either for injunction or for appointment of a receiver. No interference in this revision petition is, therefore, called for. It is accordingly dismissed.