Sihan Singh, Vs. State of Haryana and Another - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....order1. second respondent-ajmer singh gave a complaint to s.h.o. police station, raipur rani against mihan singh and sihan singh sons of kehar singh of village hangoli alleging that they wanted to take forcible possession of the cultivable lands of his (ajmer singh's) which are in their possession since the time of their ancestors. ajmer singh further alleged that they had come with the tractor and oxen and started attacking him to take his life, when he started preventing. ajmer singh further alleged that by running away, himself and his sons saved their lives, as otherwise they would have killed them. 2. petitioner-sihan singh son of kehar singh had also given a complaint to the same s.h.o. alleging that he is the owner of 12 acres of land in village hangoli, given to him by the.....

Judgment:
ORDER

1. Second respondent-Ajmer Singh gave a complaint to S.H.O. Police Station, Raipur Rani against Mihan Singh and Sihan Singh sons of Kehar Singh of Village Hangoli alleging that they wanted to take forcible possession of the cultivable lands of his (Ajmer Singh's) which are in their possession since the time of their ancestors. Ajmer Singh further alleged that they had come with the tractor and oxen and started attacking him to take his life, when he started preventing. Ajmer Singh further alleged that by running away, himself and his sons saved their lives, as otherwise they would have killed them.

2. Petitioner-Sihan Singh son of Kehar Singh had also given a complaint to the same S.H.O. alleging that he is the owner of 12 acres of land in Village Hangoli, given to him by the Government, and that Ajmer Singh (second respondent herein), his son-Kala and wife-Shanti Devi are trying to take possession of the land and are giving threats to kill him.

3. The S.I./S.H.O., Police Station Raipur Rani, therefore, presented the Kalendra under S. 145, Cr.P.C. before the Sub-Divisional Magistrate, Panchkula reproducing the respective complaints given by the parties and also alleging that he went to the village, verified and separately prepared a Kalendra under Ss. 107/151, Cri.P.C. against both the parties, submitted it in the Court of the Sub-Divisional Magistrate, Panchkula and that both the parties are on bail. The S.H.O. further alleged that Ajmer Singh and Kehar Singh are having disputes regarding 102 Kanals 7 Marlas of land and the land as detailed in the Kalendra is standing in the names of Kehar Singh and Ajmer Singh sons of Sunder Singh as per girdawari. The S.H.O. also alleged that both the parties are having dispute with regard to these lands for the last many days, requested the initiation of the proceedings under Ss. 145 and 146, Cr.P.C. and the appointment of a Receiver so that no serious offence takes place with regard to these lands. Copy of the Kalendra is Annexure P-1 and is dated 8-7-1990 (mistake for 1996).

4. Therefore, the Sub-Divisional Magistrate, Panchkula issued notice under S. 145, Cr.P.C. to the second respondent Ajmer Singh and Sihan Singh, the petitioner herein, observing that it appeared to him that a dispute is likely to induce the breach of peace between Ajmer Singh and Sihan Singh regarding the possession of the disputed lands measuring 102 kanals 17 marlas (as detailed in the notice) situated in Village Mangoli, and calling upon them to file the written statement in respect of their respective claims as to the actual possession of the lands and to appear before him on 13-8-1996. A copy of this notice is Annexure P-2 dated 6-8-1996.

5. The Sub-Divisional Magistrate, Panchkula passed the order (Annexure P-6) dated 20-8-1996 appointing the Tehsildar, Raipur Rani as the Receiver under S. 146(1), Cr.P.C. regarding the disputed lands directing him to auction the standing crops in the lands, to deposit the sale proceeds into treasury and to file his report. While passing this order, the Sub-Divisional Magistrate observed that though the parties were present with their respective counsel, no reply had been filed, that after perusing the records available on the file and hearing both the parties, he found that there had been a dispute between them regarding the lands in dispute and that there was apprehension of dispute even now between the parties. So observing he passed the order appointing the Receiver.

6. Therefore, petitioner-Sihan Singh, son of Kehar Singh, has approached this Court with this petition under S. 482, Cr.P.C. for quashing the Kalendra, notice and the order of appointment of Receiver (Annexures P-1, P-2 and P-6 respectively) and the further proceedings arising therefrom.

7. On notice, the second respondent filed a reply alleging that petitioner has intentionally concealed the fact that he (the second respondent) is the brother of Kehar Singh and is also a cotenant. According to the second respondent, Kehar Singh played a fraud with him, by taking advantage of his illiteracy and by posing himself as the sole tenant while filing the suit for pre-emption without mentioning his (second respondent's) status as a co-tenant. The second respondent claims that even if it is assumed for the sake of argument that he did not opt to file the pre-emption suit along with Kehar Singh, his (second respondent's) status as gair marusi tenant cannot be dislodged, and as such he was entitled to approach the Civil Court for initiating the proceedings under S. 145, Cr.P.C. The second respondent also claims that he is in possession of the lands and has raised the crops, and that in spite of the earlier proceedings under Ss. 107/151, Cr.P.C., he was attacked resulting in the registration of FIR No. 57 dated 11-8-1996 of Police Station, Raipur Rani under Ss. 325/34, IPC.

8. I have heard the counsel for both the sides and perused the records.

9. The petitioner contends that the second respondent-Ajmer Singh filed a civil suit (Annexure P-3) on 4-7-1996 against the petitioner and his brother in the Vacation Court, Panchkula for possession as owner by way of specific performance of the agreement dated 18-12-1992 in respect of an extent of 14 kanals 9 marlas as detailed in the suit, which means the second respondent has admitted that the petitioner is in possession of the disputed lands whereas, the second respondent is disputing the possession of the petitioner by initiating proceedings under S. 145, Cr.P.C. According to the petitioner, the Civil Court has, in the civil suit filed by the second respondent, ordered on 9-7-1996 the parties to maintain status quo regarding possession and that the S.H.O., Raipur Rani had presented the Kalendra without applying his mind to this aspect.

10. Another contention of the petitioner is that his father-Kehar Singh (since deceased) had filed a Civil Suit 319 of 1989 for possession by way of pre-emption against Dharam Pal and 9 others regarding the lands in dispute on 13-10-1989 which was decided on 2-4-1996 in favour of his legal heirs namely, the petitioner and his brother-Mihan Singh (copy of judgment Annexure P-4). The petitioner contends that the second respondent-Ajmer Singh never came into the picture during the pendency of the suit, and if really, he was interested in getting the land pre-empted, he would have joined Kehar Singh in that suit. According to the petitioner, after the land was preempted, the second respondent-Ajmer Singh has no connection with the disputed land, whereas he is the rightful owner of the same and, therefore, the proceedings under S. 145, Cr.P.C. could not be initiated. As against this, the second respondent contends that Kehar Singh had filed the suit for pre-emption concealing the fact that he (second respondent) is not only the brother, but also the co-tenant in respect of the disputed lands. He further contends that even if it is assumed for the sake of argument that he did not opt to file the pre-emption suit along with Kehar Singh, his rights and status as a tenant cannot be extinguished/displaced. But, the petitioner contends that inasmuch as the Civil Court has ordered the parties in the civil suit filed by the second respondent himself, to maintain status quo on 9-7-1996 vide Annexure P-5, these proceedings under S. 145, Cr.P.C. cannot continue.

11. I have to agree with the contention of the second respondent to the extent that in spite of the fact that he has not joined the suit for pre-emption along with his brother-Kehar Singh or after his death along with the petitioner and his brother, his right as a co-tenant cannot be extinguished. The specific claim of the second respondent that he is a co-tenant of the lands in dispute has not been denied by the petitioner by filing any replication. This apart, the second respondent has also filed the copy of the Jamabandi for the year 1983-84 where the names of both Kehar Singh and the second respondent-Ajmer Singh have been shown as tenants in equal shares. The second respondent has also produced copy of the Khasra girdawari relating to the period from Kharif 1995 to Rabi 1996, wherein also they have been shown as tenants is equal shares. Therefore, obviously, he is a tenant and his rights as such cannot be extinguished, and consequently, the contention of the petitioner that after the lands were pre-empted, the second respondent had no connection with the disputed lands, cannot be accepted.

12. But the question still remains whether the proceedings under S. 145, Cr.P.C. could have been initiated since the second respondent filed the civil suit on 4-7-1996 (Annexure P-3) against the petitioner and his brother for possession as owner by way of specific performance of agreement dated 18-12-1992. Because in that suit, the second respondent, as plaintiff, has specifically alleged in the plaint that he is still in possession of the disputed lands as tenant. He has also alleged that himself and his brother Kehar Singh were joint tenants of the suit lands in equal shares and that the present petitioner and his brother threatened to dispossess him from the lands and also to alienate the lands. That is why the second respondent also prayed for a permanent injunction restraining the present petitioner and his brother from dispossessing him and from alienating the suit lands. The Civil Judge, Junior Division, Panchkula by his order dated 9-7-1996 (Annexure P-5) directed the parties to maintain status quo regarding possession. In view of this, the learned counsel for the petitioner contends that when the Civil Court has ordered the parties to maintain status quo, there is no longer any need for initiating the proceedings under S. 145, Cr.P.C. and that the second respondent will have to approach the Civil Court for appropriate relief.

13. The learned counsel for the petitioner in this connection relied upon the decisions in Ajit Singh v. Baldev Singh (1993) 3 Rec Cri R 421 (Punj & Har) and Sohrab Khan v. Abdul Rahim (1993) 3 Rec Cri R 429 (Punj & Har) in support of his contention. These decisions do support the contention of the petitioner. The learned counsel for the petitioner also relied upon the decision of the Hon'ble Supreme Court in Ram Sumer Puri Mahant v. State of U.P. (1985) 1 Rec Cri R 278 : (1985 Cri LJ 752), wherein it was held that when a suit for title, possession and injunction is pending in the Civil Court, parallel proceedings under S. 145, Cr.P.C. cannot be continued. The learned counsel for the second respondent, on the other hand, contends that this is not a case where the right of the second respondent as a tenant is disputed and, therefore, the petitioner cannot be permitted to act forcibly and unlawfully. He further contends that the question is as to the possession only and not to the right to possession and, therefore, proceedings under S. 145, Cr.P.C. are competent. The learned counsel for the second respondent relied upon the decision of the Hon'ble Supreme Court in Prakash Chand Sachdeva v. State (1994) 3 Rec Cri R 217 : (1994 Cri LJ 1436) in support of this contention, wherein it was held that when ownership is not disputed and there is no partition, one cannot be permitted to act forcibly and unlawfully and that where the dispute is not on the right to possession, but on the question of possession, the Magistrate is competent to take cognizance under S. 145, Cr.P.C. The learned counsel for the second respondent also relied upon a decision of this Court in Mahant Gurdev Dass Chela Mahant Uttam Dass v. State of Punjab (1994) 2 Rec Cri R 348, also in support of his contention. That was a case where in view of the dispute over the possession of certain lands, the Sub-Divisional Magistrate initiated proceedings under S. 145, Cr.P.C. and appointed a Receiver. The petitioner before the High Court had earlier filed a civil suit for declaration that he was the Manager of the Dera, but did not claim any relief for restraining the respondents from interfering with his possession. In such circumstances, this Court held as there was dispute regarding possession of land which was likely to occasion breach of peace, the S.D.M. had rightly initiated the proceedings under S. 145, Cr.P.C.

14. But even according to the second respondent, he had filed a suit on the basis that he was joint tenant with the father of the petitioner herein. Even the documents produced by him before this Court show that himself and the father of the petitioner were tenants of the disputed lands in equal shares. In the plaint Annexure P-3 also, the second respondent has stated that himself and Kehar Singh were joint tenants in equal shares. Therefore, when he is a joint tenant in joint possession, the proceedings under S. 145, Cr.P.C. will not be competent. In this connection, the learned counsel for the petitioner relies upon the decision of this Court in Dhanvir Singh v. State of Punjab (1983) 1 Rec Cri R 538, in support of his contention. This Court held that in the case of dispute between the co-owners who were in joint possession of the property with regard to possession, such a dispute will not fall under S. 145, Cr.P.C. and the remedy is by proceedings under S. 107, Cr.P.C. The learned counsel for the petitioner also relied upon the decision of the Jammu and Kashmir High Court in Akbar Palla v. Mst. Teja (1996) 1 Rec Cri R 568. That was also a case where the property was in the joint possession of the parties. There was an allegation about the apprehension of breach of peace. The High Court of Jammu and Kashmir held that there was no scope for invoking the provisions under S. 145, Cr.P.C. and the proper course for the Magistrate would be to act under S. 107, Cr.P.C. Therefore, as rightly contended by the learned counsel for the petitioner, in the circumstances of the case where the case of the second respondent has been that he is a joint tenant and is in joint possession along with the father of the petitioner, proceedings under S. 145, Cr.P.C. cannot be initiated.

15. Further, in this case, the proceedings under Ss. 107/151, Cr.P.C. were initiated against the parties. The petitioner contends that both the parties were bailed out on surety bonds and, therefore, thereafter there is no scope for initiating the proceedings under S. 145, Cr.P.C. The contention of the 2nd respondent is that even after the proceedings under Ss. 107/151, Cr.P.C. he was attacked and a case has also been registered under S. 325 read with S. 34, IPC and, therefore, the proceedings under S. 145, Cr.P.C. could be initiated. But the second respondent has approached the Civil Court and has obtained an order directing the parties to maintain status quo regarding possession. In the circumstances pointed out by me, if there is any violation of such order, the second respondent will have to approach the Civil Court for appropriate remedy. Therefore, I am of the view that the proceedings under S. 145, Cr.P.C. could not have been initiated and continued and, therefore, this petition has to be allowed.

16. Accordingly, this petition is allowed quashing Annexure P-1 the Kalendra, Annexure P-2 the notice, and Annexure P-6 the order of appointment of Receiver, and also the further proceedings.

17. Petition allowed.