w w w . L a w y e r S e r v i c e s . i n



Raghuraj Singh & Others v/s State of MP & Others

    MCRC No. 17494 of 2022

    Decided On, 27 April 2022

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE G.S. AHLUWALIA

    For the Applicants: Prashant Sharma, Advocate. For the Respondents: R1, C.P. Singh, Advocate, R2 & R3, H.K. Dixit, Advocate.



Judgment Text

1. This application under Section 482 of CrPC has been filed against the order dated 31.03.2022 passed by First Additional Sessions Judge, Gohad, District Bhind thereby rejecting the revision filed against the order dated 22.03.2022 passed by Sub-Divisional Officer (Revenue), Gohad, District Bhind, by which the interim application filed by the respondents No. 2 and 3 under Section 146(1) of CrPC has been allowed and the standing crop has been attached.

2. The necessary facts for disposal of the present application in short are that the police filed an Istagasa No.2/2021 under Sections 145 and 146 of CrPC alleging that there is a possibility of breach of peace on account of dispute between the applicants and the respondents, in respect of Survey Nos.985, 1035, 1068, 1074, 422, 982, 1124, 1126, 690, 751, 1168, 1054, 1059, 944, 939, 940, 954, 631, 945, 946, 1025, 1026, 1028, 1029, 1094, 1052 situated in Moja Lodhe Ki Pali and Khasra No.1056, 1167, 944, 1103, 950, 1175, 1177, 1132/3 also situated in Banke Moja Lodhe Ki Pali. It was alleged that all the parties, i.e., the applicant and the respondents are the joint holder and are in joint possession and they are cultivating the land. Crops of mustard and wheat are standing. The applicants No. 1 to 4 etc. are trying to harvest the crop by show of muscles, therefore, there is a possibility of breach of peace.

3. Istagasa was filed on 15.03.2022 and on the very same day the SDM, Gohad District Bhind rejected the application filed under Section 146 of CrPC and the report of Patwari was called. On 16.03.2022 Presiding Officer was on leave and the case was fixed for 17.03.2022 and on 17.03.2022 the report of RI was received and the case was fixed for 21.03.2022 and on 21.03.2022 the case was adjourned because of condolence. On 22.03.2022 the respondents No. 2 and 3 appeared before the SDM, Gohad, District Bhind and made a prayer for attachment of the crop. In response, counsel for the applicants took objection on the Patwari report and also requested for summoning a fresh report. However, counsel for the respondents No. 2 and 3 expressed that there is a possibility of breach of peace and the dispute is concerning the entire land and partition has not taken place and, accordingly, it was directed that the standing crop be attached and be handed over in the supurdagi of Kotwar Lodhe Ki Pali.

4. Challenging the order passed by the Sub-Divisional Officer, Gohad, the applicants preferred a revision, which too has been dismissed by order dated 31.12.2022 passed by First Additional Sessions Judge, Bhind in Criminal Appeal No.1000/2022.

5. The Revisional Court in paragraph 10 of its order came to a conclusion that the land in dispute is jointly owned and possessed by the applicant and the respondents No. 2 and 3 and the civil suit is already pending in the Civil Court, but observed that it is not clear that which part of the land is in possession of which party. It was also observed that in the Civil Suit No.208-A/2015, 122-A/2018 and 51- A/2016, the applicants have filed a suit for declaration of their title and in possession of Survey Nos. 1056, 1167, 944, 751, 1168, 452, 982, 1124, 1126 to the extent of their 3/6th share, whereas in Civil Suit No.122-A/2018, respondents No. 2 and 3 have filed a suit for declaration of ''Will'' dated 20.09.2016 as null and void. According to the ''Will'', the deceased Ramnath has executed a will in favour of the applicants Balveer Singh, Vikas and Brajesh. Thus, it was held that it is clear that Ramnath who was the father of applicants and the respondents No. 2 and 3 had executed a ''Will'' in favour of his children which has resulted in giving birth to the dispute. It was also observed that the basic purpose of the proceedings under Section 145 of CrPC is to find out as to who was in possession of the property as well as to restore peace and unless and until civil suit is decided, the dispute has to be resolved on the basis of possession. Accordingly, the revision was dismissed.

6. Challenging the order passed by the Court below, it is submitted by the counsel for the applicants that it is well established principle of law that the injunction cannot be passed against a coowner. The applicants No. 1, 2 and 3 have filed civil suit against the respondents No. 2, 3 and others for declaration of their title and share in the property. Similarly, the respondents No. 2 and 3 and others filed a suit against the applicants No. 1 to 3 and others for declaration of Will dated 20.09.2016 as null and void. It is further submitted that the respondent No. 2 and 3 have also filed a civil suit for declaration of sale deed dated 22.10.2007 as null and void. The application under Section 178 of MPLRC has also been filed by the respondents No. 2 and 3 along with other persons against the applicants. Respondents No. 2 and 3 had also filed an application under Order 39 Rule 1 and 2 of CPC in Civil Suit No.208-A/2015 which was dismissed by order dated 13.11.2017. It is further submitted that no appeal has been filed against the order dated 13.11.2017 passed by Civil Judge, Class-I, Gohad, District Bhind in Civil Suit N0.208-A/2015. It is submitted that when the respondents No. 2 and 3 could not succeed in getting favourable order under Order 39 Rule 1 and 2 of CPC, then they adopted a short cut method by ensuring initiation of proceedings under Section 145 of CrPC and when the temporary/mandatory injunction cannot be issued against a co-sharers, then by issuing an order under Section 146 of CrPC, the SDM, Gohad, District Bhind has issued temporary injunction order against the co-sharers/coowner.

7. Per contra, counsel for the respondents No. 2 and 3 has supported the order passed by the Courts below.

8. Heard the learned counsel for the parties.

9. Undisputedly, the applicants and the respondents No. 2 and 3 have share in the property in dispute and the property in dispute is a joint property. The property which is a subject matter of proceedings under Section 145 of CrPC is also the subject matter of civil suit pending between the parties. It is well established principle of law that each and every co-sharer has to be treated as in possession and no injunction order can be issued against a co-sharer. Thus, it is clear that the co-sharer can seek relief of injunction against other co-sharer only when said co-sharer is in exclusive possession of the land to the exclusion of other co-sharer.

10. So long as the possession of a co-sharer is joint, relief of injunction cannot be sought by any of the co-sharer and the only relief available to such co-sharer is to seek partition. Furthermore, the application for grant of temporary injunction filed by the respondents No. 2 and 3 has already been dismissed.

11. The Supreme Court in the case of Ram Sumer Puri Mehant Vs. State of U.P. and others reported in (1985) 1 SCC 427, has held as under:-

“2. Challenge in this application is to the order of the Allahabad High Court refusing to interfere in its revisional jurisdiction against an order directing initiation of proceedings under Section 145, Code of Criminal Procedure (‘Code’ for short), and attachment of the property at the instance of Respondents 2-5. Indisputably, in respect of the very property there was a suit for possession and injunction being Title Suit No. 87 of 1975 filed in the Court of 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 a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a 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 to 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. We accordingly allow the appeal and quash the order of the learned Magistrate by which the proceeding under Section 145 of the Code has been initiated and the property in dispute has been attached. We leave it open to either party to move the appellate Judge in the civil litigation for appropriate interim orders, if so advised, in the event of dispute relating to possession.”

12. Thus, where a civil litigation is pending between the parties, then they have an efficacious remedy and forum to seek interim orders. Therefore, multiplicity of litigation before different forums for a similar nature of relief should always be avoided.

13. The Supreme Court in the case of M. Siddiq (Ram Janmabhumi Temple Case) v. Mahant Suresh Das and others, reported in (2020) 1 SCC 1 has held as under:-

“295. Section 145 is recognised to be a branch of the preventive jurisdiction of the Magistrate. [Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal, 20th Edn. (2016) at p. 426.] Section 145(1) can be invoked on the satisfaction of the Magistrate that “a dispute likely to cause a breach of the peace exists…”. The provision relates to disputes regarding possession of land or water or its boundaries which may result in breach of the peace. The function of the Magistrate is not to go into questions of title, but to meet the urgency of the situation by maintaining the party in possession. The Magistrate is empowered to call upon the parties to put in written statements in support of their claim to “actual possession”. Such an order is to be served as a summons upon the parties. The Magistrate is to peruse the statements, hear the parties and weigh the evidence, in order to ascertain who was in possession at the date of the order. The Magistrate may make that determination “if possible” to do so. Moreover, the determination is about the factum of possession on the date of the order “without reference to the merits of the claim of any of such parties to a right to possess the subject of the dispute”. These words indicate that the Magistrate does not decide or adjudicate upon the contesting rights to possess or the merits of conflicting claims. The Magistrate is concerned with determining only who was in possession on the date of the order. If possession has been wrongfully taken within two months of the order, the person so dispossessed is to be taken as the person in possession. In cases of emergency, the Magistrate can attach the subject of the dispute, pending decision. The action ultimately contemplated under Section 145 is not punitive, but preventive, and for that purpose is provisional only till a final or formal adjudication of rights is done by a competent court in the due course of law. Thus, nothing affecting the past, present and future rights of parties is contemplated under the provision.

296. The object of the provision is merely to maintain law and order and to prevent a breach of the peace by maintaining one or other of the parties in possession, which the Magistrate finds they had immediately before the dispute, until the actual right of one of the parties has been determined by a civil court. The object is to take the subject of dispute out of the hands of the disputants, allowing the custodian to protect the right, until one of the parties has established her right (if any) to possession in a civil court. [Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal, 20th Edn. (2016) at p. 427.] This is evident from the provisions of sub-section (6) of Section 146. The Magistrate declares the party which is entitled to possession “until evicted therefrom in due course of law”. While proceeding under the first proviso, the Magistrate may restore possession to a party which has been wrongfully and forcibly dispossessed. No party can be allowed to use the provisions of Section 145 for ulterior purposes or as a substitute for civil remedies. The jurisdiction and power of the civil court cannot in any manner be hampered. [Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal, 20th Edn. (2016) at p. 451.]

297. This Court has analysed the nature and scope of proceedings under Section 145 in the following cases:

297.1. In Bhinka v. Charan Singh [Bhinka v. Charan Singh, 1959 Supp (2) SCR 798 : AIR 1959 SC 960 : 1959 Cri LJ 1223] , the respondent, claimed the lands in dispute “to be his sir”, while the appellants claimed to be in possession of the lands as hereditary tenants. The Magistrate initiated proceedings under Section 145, attached the lands in dispute and directed them to be placed in possession of a superdgidar pending disposal of those proceedings. After enquiries, the Magistrate concluded that the appellants were entitled to be in possession until evicted in due course of law. Thereafter, the respondent filed a suit before the Revenue Courts. The appeal before the Supreme Court arose from that proceeding. One of the issues before this Court was whether the appellants had taken possession in accordance with the provisions of Section 145. Subba Rao, J. speaking for a three-Judge Bench of this Court, held thus : (AIR p. 966, para 16)

“16. … Under Section 145(6) of the Code, a Magistrate is authorised to issue an order declaring a party to be entitled to possession of a land until evicted therefrom in due course of law. The Magistrate does not purport to decide a party's title or right to possession of the land but expressly reserves that question to be decided in due course of law. The foundation of his jurisdiction is on apprehension of the breach of the peace, and, with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. The life of the said order is co-terminus with the passing of a decree by a civil court and the moment a civil court makes an order of eviction, it displaces the order of the criminal court. The Privy Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani [Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani, 1901 SCC OnLine PC 32 : (1901- 02) 29 IA 24] , at IA p. 33 tersely states the effect of orders under Section 145 of the Code of Criminal Procedure thus : (SCC OnLine PC)

`… These orders are merely police orders made to prevent breaches of the peace. They decide no question of title….’

We, therefore, hold that a provisional order of a Magistrate in regard to possession irrespective of the rights of the parties cannot enable a person to resist the suit under Section 180 of the Act.”

(emphasis supplied)

297.2. In R.H. Bhutani v. Mani J. Desai [R.H. Bhutani v. Mani J. Desai, (1969) 1 SCR 80 : AIR 1968 SC 1444 : 1969 Cri LJ 13] , the appellant entered into a leave and licence agreement with the first respondent to occupy a cabin owned by her. When a dispute over increase in compensation arose between the parties, the first respondent sought to evict the appellant and also hand over the possession of the cabin to the second and third respondents. Thereafter, the appellant filed an application under Section 145 and the Magistrate commenced the proceedings. While the proceedings were pending, the respondent filed a civil suit. The Magistrate concluded that the appellant was in actual possession of the cabin and had been forcibly dispossessed. In the revision petition before the High Court, the Magistrate's order was set aside and it was held that the Magistrate had breached the scope of his powers under Section 145. The order of the High Court was assailed before this Court, which set aside the order of the High Court and restored the order of the Magistrate. J.M. Shelat, J. speaking for a three-Judge Bench of this Court discussed the scope of proceedings under Section 145 in the following terms : (AIR pp. 1447-48, para 8)

“8. The object of Section 145, no doubt, is to prevent breach of peace and for that end to provide a speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent court. …The enquiry under Section 145 is limited to the question as to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties.” (emphasis supplied)

297.3. In Shanti Kumar Pandav. Shakuntala Devi [Shanti Kumar Panda v. Shakuntala Devi, (2004) 1 SCC 438 : 2004 SCC (Cri) 320], there was a dispute between the parties regarding a shop. Proceedings under Section 145 were commenced on the basis of a complaint filed by the appellant and the Magistrate attached the property. The respondent, who claimed to be interested in the subjectmatter of the dispute was not allowed to be impleaded in the proceedings. The final order under Section 145 was in favour of the appellant. Revision petitions against the order were dismissed. Thereafter, the respondent filed a civil suit and secured an injunction. The injunction was however, vacated by the District Court on the ground that since Section 145 proceedings had terminated in the appellant's favour, the trial court was not justified in issuing the injunction unless and until the order of the Magistrate was superseded by a civil court's decree and no injunction could be granted while the property was “custodia legis”. The High Court reversed [Shakuntala Devi v. District Judge, Jaunpur, 1996 SCC OnLine All 131 : (1996) 2 AWC 953] the District Court's order. The decision of the High Court was assailed before this Court. A three-Judge Bench of this Court dismissed the appeal and dealt with the nature of proceedings under Section 145. J.M. Shelat, J. speaking for the Court held : (SCC p. 447, para 10)

“10. The proceedings under Sections 145/146 of the Code have been held to be quasi-civil, quasi-criminal in nature or an executive or police action. The purpose of the provisions is to provide a speedy and summary remedy so as to prevent a breach of the peace by submitting the dispute to the Executive Magistrate for resolution as between the parties disputing the question of possession over the property. The Magistrate having taken cognizance of the dispute would confine himself to ascertaining which of the disputing parties was in possession by reference to the date of the preliminary order or within two months next before the said date, as referred to in the proviso to sub-section (4) of Section 145 and maintain the status quo as to possession until the entitlement to possession was determined by a court, having competence to enter into adjudication of civil rights, which an Executive Magistrate cannot. The Executive Magistrate would not take cognizance of the dispute if it is referable only to ownership or right to possession and is not over possession simpliciter.…”

297.4. The Court in Shanti Kumar Panda [Shanti Kumar Panda v. Shakuntala Devi, (2004) 1 SCC 438 : 2004 SCC (Cri) 320], in the following observations dealt with the interplay between the order of a Magistrate and the jurisdiction of a civil court : (SCC pp. 448-49, para 15)

“15. It is well settled that a decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. (See Sarkar on Evidence, 15th Edn., p. 845.) A decision given under Section 145 of the Code has relevance and is admissible in evidence to show : (i) that there was a dispute relating to a particular property; (ii) that the dispute was between the particular parties; (iii) that such dispute led to the passing of a preliminary order under Section 145(1) or an attachment under Section 146(1), on the given date; and (iv) that the Magistrate found one of the parties to be in possession or fictional possession of the disputed property on the date of the preliminary order. The reasoning recorded by the Magistrate or other findings arrived at by him have no relevance and are not admissible in evidence before the competent court and the competent court is [Ed. : The matter between two asterisks has been emphasised in original.] not bound [Ed. : The matter between two asterisks has been emphasised in original.] by the findings arrived at by the Magistrate even on the question of possession though, as between the parties, the order of the Magistrate would be [Ed.: The matter between two asterisks has been emphasised in original.] evidence of possession [Ed.: The matter between two asterisks has been emphasised in original.]. The finding recorded by the Magistrate does not bind the court. The competent court has jurisdiction and would be justified in arriving at a finding inconsistent with the one arrived at by the Executive Magistrate even on the question of possession.”

(emphasis supplied)

297.5. The Court in Shanti Kumar Panda [Shanti Kumar Panda v. Shakuntala Devi, (2004) 1 SCC 438 : 2004 SCC (Cri) 320] held that the order passed by the Magistrate will not be treated as binding even the interlocutory jurisdiction of the civil court under Order 39 of the Code of Civil Procedure : (SCC p. 451, para 22)

“22. … The civil court shall also respect such order and will be loath to arrive at an interim arrangement inconsistent with the one made by the Executive Magistrate. However, this is far from holding that the civil court does not have jurisdiction to make an order of 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. There may be cases such as one where the order of the Executive Magistrate can be shown to be without jurisdiction, palpably wrong or containing self-contradictory findings. For example, the Magistrate may have made an order treating the party dispossessed beyond two months to be as in possession. There may be cases where in spite of the order made by the Executive Magistrate based on the evidence adduced before it, the competent court, based on the material produced before such court, may be inclined to hold that prima facie a very strong case for retaining or placing one of the parties in possession of the suit property is made out or where it will be totally unjust or inequitable to continue one party in possession of the property as ordered by the Executive Magistrate. In such exceptional situations, the competent court (which will mostly be a civil court) may have jurisdiction for granting an order of injunction in departure from the findings recorded and the declaration made by the Executive Magistrate under Section 145 of the Code of Criminal Procedure. The order under Section 146 of the Code would not pose a problem of that magnitude. Inasmuch as the property is under attachment and is placed in the hands of a Receiver, the civil court can comfortably examine whether it would be just and expedient to continue with the attachment and with the same Receiver or to appoint another Receiver or to make some other interim arrangement during the pendency of the civil suit.”

(emphasis supplied)

297.6. In Surinder Pal Kaur v. Satpal [Surinder Pal Kaur v. Satpal, (2015) 13 SCC 25 : (2016) 1 SCC (Civ) 544 : (2016) 1 SCC (Cri) 409] , reliance was placed upon the decision in Shanti Kumar Panda [Shanti Kumar Panda v. Shakuntala Devi, (2004) 1 SCC 438 : 2004 SCC (Cri) 320] . Dipak Misra, J. (as the learned Chief Justice then was) speaking for the two-Judge Bench, held thus : (Surinder Pal Kaur case [Surinder Pal Kaur v. Satpal, (2015) 13 SCC 25 : (2016) 1 SCC (Civ) 544 : (2016) 1 SCC (Cri) 409] , SCC p. 28, para 10)

“10. … It is a settled position of law that the observations made in the proceedings drawn under Section 145 CrPC do not bind the competent court in a legal proceeding initiated before it.”

298. Section 145 proceedings do not purport to decide a party's title or right to possession of the land. The property held in attachment in proceedings under Section 145 is “custodia legis”. Hence, it is not necessary to secure possession from a party who is not in possession and is hence, not in a position to deliver possession. This Court has analysed the nature of the property under attachment in the following decisions:

298.1. In Deo Kuer v. Sheoprasad Singh [Deo Kuer v. Sheoprasad Singh, (1965) 3 SCR 655 : AIR 1966 SC 359] , a three-Judge Bench of this Court, held that property held under attachment under Section 145 is “custodia legis”. The appeal arose out of a suit brought by the appellants in 1947 for a declaration that the respondents had acquired no right or title to a property under certain deeds and that the deeds were inoperative and void. The suit was decreed by the trial court, but on appeal, the High Court set aside the decree. The High Court held that as the appellants were not in possession of the property at the date of the suit, their suit must fail under the proviso to Section 42 of the Specific Relief Act as they had failed to ask for the further relief of recovery of possession from the respondents. On the date of the suit, the property in dispute had been attached by the Magistrate, exercising his powers under Section 145 and was not in the possession of any party. The issue that arose before this Court was whether in view of the attachment, the appellants could have in their suit, sought the relief for delivery of possession to them. Speaking for the three-Judge Bench, A.K. Sarkar, J. held thus : (AIR pp. 360-61, paras 4-5)

“4. In our view, in a suit for declaration of title to property filed when it stands attached under Section 145 of the Code, it is not necessary to ask for the further relief of delivery of possession. The fact, if it be so, that in the case of such an attachment, the Magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession is, in our opinion, irrelevant. On the question however whether the Magistrate actually does so or not, it is unnecessary to express any opinion in the present case.

5. The authorities clearly show that where the defendant is not in possession and not in a position to deliver possession to the plaintiff it is not necessary for the plaintiff in a suit for a declaration of title to property to claim possession : see Sunder Singh-Mallah Singh Sanatan Dharam High School Trust v. Sunder Singh- Mallah Singh Rajput High School [Sunder Singh-Mallah Singh Sanatan Dharam High School Trust v. Sunder Singh-Mallah Singh Rajput High School, 1937 SCC OnLine PC 89 : (1937-38) 65 IA 106] . Now it is obvious that in the present case, the respondents were not in possession after the attachment and were not in a position to deliver possession to the appellants. The Magistrate was in possession, for whomsoever, it does not matter, and he was not of course a party to the suit. It is pertinent to observe that in Nawab Humayun Begam v. Nawab Shah Mohammad Khan [Nawab Humayun Begam v. Nawab Shah Mohammad Khan, 1943 SCC OnLine PC 8 : AIR 1943 PC 94] it has been held that the further relief contemplated by the proviso to Section 42 of the Specific Relief Act is relief against the defendant only. We may add that in K. Sundaresa Iyer v. Sarvajana Sowkiabi Virdhi Nidhi Ltd. [K. Sundaresa Iyer v. Sarvajana Sowkiabi Virdhi Nidhi Ltd., 1939 SCC OnLine Mad 124 : ILR 1939 Mad 986] it was held that it was not necessary to ask for possession when property was in custodia legis. There is no doubt that property under attachment under Section 145 of the Code is in custodia legis. These cases clearly establish that it was not necessary for the appellants to have asked for possession.”

298.2. In Shanti Kumar Panda [Shanti Kumar Panda v. Shakuntala Devi, (2004) 1 SCC 438 : 2004 SCC (Cri) 320] , this Court formulated the legal principles governing the effect of the order of a Magistrate under Sections 145/146 when legal proceedings are instituted before a court of competent jurisdiction : (SCC pp. 452-53, para 23)

“(1) The words “competent court” as used in subsection (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 the 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 the 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 selfinconsistent 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.”

(emphasis supplied)

The above formulation is essentially a restatement of the principles which emerge from a consistent line of precedent of the Court. [See also Jhummamal v. State of M.P. [Jhummamal v. State of M.P., (1988) 4 SCC 452 : 1988 SCC (Cri) 974] ]

299. Where a suit is instituted for possession or for declaration of title before a competent civil court, the proceedings under Section 145 should not continue. This Court has analysed the above proposition of law in the following cases:

299.1. In Amresh Tiwari v. Lalta Prasad Dubey [Amresh Tiwari v. Lalta Prasad Dubey, (2000) 4 SCC 440 : 2000 SCC (Cri) 806] , S.N. Variava, J. speaking for a three-Judge Bench of this Court held thus : (SCC p. 445, para 12)

“12. … The law on this subject-matter has been settled by the decision of this Court in Ram Sumer Puri Mahant v. State of U.P. [Ram Sumer Puri Mahant v. State of U.P., (1985) 1 SCC 427 : 1985 SCC (Cri) 98] In this case it has been held as follows : (SCC pp. 428-29, para 2)

‘2. … 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. … parallel proceedings should not be permitted to continue and in the event of a 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 to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue….’ ”

299.2. The Court in Amresh Tiwari [Amresh Tiwari v. Lalta Prasad Dubey, (2000) 4 SCC 440 : 2000 SCC (Cri) 806] rejected the submission that the principle in Ram Sumer Puri Mahant v. State of U.P. [Ram Sumer Puri Mahant v. State of U.P., (1985) 1 SCC 427 : 1985 SCC (Cri) 98] will apply only after the civil court has adjudicated on the issue : (SCC p. 445, para 13)

“13. We are unable to accept the submission that the principles laid down in Ram Sumer case [Ram Sumer Puri Mahant v. State of U.P., (1985) 1 SCC 427 : 1985 SCC (Cri) 98] would only apply if the civil court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumer case [Ram Sumer Puri Mahant v. State of U.P., (1985) 1 SCC 427 : 1985 SCC (Cri) 98] is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the civil court and parties are in a position to approach the civil court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue.”

300. Dealing with the issue as to when the proceedings under Section 145 should not be pursued any further on the institution of a suit for adjudication, this Court in Amresh Tiwari [Amresh Tiwari v. Lalta Prasad Dubey, (2000) 4 SCC 440 : 2000 SCC (Cri) 806] held : (SCC p. 446, para 14)

“14. Reliance has been placed on the case of Jhummamal v. State of M.P. [Jhummamal v. State of M.P., (1988) 4 SCC 452 : 1988 SCC (Cri) 974] It is submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings under Section 145 of the Criminal Procedure Code should be set at naught. In our view this authority does not lay down any such broad proposition. In this case the proceedings under Section 145 of the Criminal Procedure Code had resulted in a concluded order. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded order under Section 145 of the Criminal Procedure Code should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An order of status quo had already been passed by the competent civil court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram Sumer case [Ram Sumer Puri Mahant v. State of U.P., (1985) 1 SCC 427 : 1985 SCC (Cri) 98] fully applies. We clarify that we are not stating that in every case where a civil suit is filed, Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court that proceedings under Section 145

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should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil court would be binding on the Magistrate.” (emphasis supplied)” 14. The Supreme Court in the case of Amresh Tiwari Vs. Lalta Prasad Dubey and another reported in (2000) 4 SCC 440 has held as under:- “13. We are unable to accept the submission that the principles laid down in Ram Sumer case [(1985) 1 SCC 427 : 1985 SCC (Cri) 98] would only apply if the civil court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumer case [(1985) 1 SCC 427 : 1985 SCC (Cri) 98] is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the civil court and parties are in a position to approach the civil court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue. 14. Reliance has been placed on the case of Jhummamal v. State of M.P. [(1988) 4 SCC 452 : 1988 SCC (Cri) 974] It is submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings under Section 145 of the Criminal Procedure Code should be set at naught. In our view this authority does not lay down any such broad proposition. In this case the proceedings under Section 145 of the Criminal Procedure Code had resulted in a concluded order. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded order under Section 145 of the Criminal Procedure Code should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An order of status quo had already been passed by the competent civil court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram Sumer case [(1985) 1 SCC 427 : 1985 SCC (Cri) 98] fully applies. We clarify that we are not stating that in every case where a civil suit is filed, Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court that proceedings under Section 145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil court would be binding on the Magistrate.” 15. Thus, it is clear that the application for partition, suit for declaration of title, suit for declaration of ''Will'' and sale deed as null and void are already pending between the parties. Under these circumstances, the SDM, Gohad, District Bhind should not have issued an order under Section 146 of CrPC specifically when there is no finding regarding emergency. The parties have every opportunity to seek interim orders from the Civil Court. 16. Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that the Courts below committed material illegality by attaching the crop standing on the land in dispute specifically when the application filed by the respondents No. 2 and 3 under Order 39 Rule 1 and 2 of CPC has already been rejected. 17. Accordingly, the order dated 31.03.2022 passed by First Additional Sessions Judge, Gohad, District Bhind and the order dated 22.03.2022 passed by Sub-Divisional Officer (Revenue), Gohad, District Bhind, are hereby quashed. 18. Accordingly, the application is hereby allowed.
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