SHANABHAI MOTIBHAI Vs. H S RATHOD PSI BORSAD

JUDGEMENT

(1.) One Bhupatbhai Prabhatbhai Padhiar has filed a suit being civil suit No. 161 of 1971 in the court of the Civil Judge Junior Division Borsad for obtaining certain declaration in respect of the lands bearing S. Nos. 374 453 454 455 and 456 of the village Anklav taluka Borsad and also for an injunction restraining the defendants from interfering with his possession. The above lands admeasure 7 acres and 34 gunthas. The learned Civil Judge issued adinterim injunction against the defendants. Thereafter the injunction was confirmed on 27-10-1971. In the meanwhile the Police sub-Inspector Anklav lodged a complaint in the court of the Sub-Divisional Magistrate Petlad for taking action under sec. 145 of the Criminal Procedure Code (hereinafter referred to as the Code). Acting on the above complaint the learned Sub-Divisional Magistrate started proceedings under sec. 145 of the Code and on the basis of the evidence adduced before him he came to the conclusion that the plaintiff of the aforesaid suit namely Bhupatbhai was in possession of the lands in question. He therefore passed the following order on 2-5-1972 :-

(2.) It is argued by the learned advocate for the petitioners that while passing the order that he did the learned Sub-Divisional Magistrate should have taken into consideration the order passed by the learned Extra Assistant Judge. In the present case there are contradictory findings of the civil Court and the criminal Court. The learned Extra Assistant Judge has taken the view that the plaintiff had failed to prove that he was in possession of the disputed lands; whereas the learned Sub-Division Magistrate and the learned District Magistrate have taken the view that it was the plaintiff who was in possession of the lands in question. Under these circumstances it is argued by the learned advocate for the petitioners that the decision of the civil Court namely the court of the Extra Assistant Judge should prevail over that of the criminal Court. Before the proceedings under sec. 145 of the Code were started the civil Court at Borsad was already seized of the matter and as observed above an interim injunction had already been issued to the defendants restraining them from interfering with the possession of the plaintiff. Under these circumstances it was hardly necessary for the learned Sub Divisional Magistrate to take proceedings under sec. 145 of the Code. If he apprehended that any breach of the peace was likely to be caused the proper course to follow for him was to take proceedings under sec. 107 of the Code. Moreover before the final order was passed on 2-5-1972 the learned Extra Assistant Judge had already decided in Civil Misc. Appeal No. 64/71 that the plaintiff had failed to prove that he was in possession of the lands in questiOn. As the proceedings under sec. 145 of the Code are of quasi civil nature it was necessary for the learned Sub-Divisional Magistrate to respect the decision of the learned Extra Assistant Judge and to pass appropriate orders in the proceedings that were pending before him on the basis of that order. The orders passed in proceedings under sec. 145 of the code are always subject to the orders of the civil Court. In the present case the civil Court that is the court of the learned Extra Assistant Judge had already given its finding as to the possession of the disputed land and in that case the learned Sub-Division Magistrate should have paid due regard to the above decision of the court of thee Extra Assistant Judge and passed appropriate orders. The above aspect of the case has not been considered by the learned Sub-Divisional Magistrate or the District Magistrate.

(3.) Relying on the decision in the case of Imambu v. Hussenbi (A.I.R. 1960 Mysore 203) it is argued by the learned advocate for the respondent No. 2 that the orders passed by the learned Sub-Divisional Magistrate and the District Magistrate are proper. I however find that the above decision does not in any way support his contention. The relevant observations of K. S. Hegde J. in the above case are as under :-