DAMYANTI DEVI Vs. RAJESH KUMAR SRIVASTAVA

JUDGEMENT

(1.) V. N. Mehrotra, J. This revision has been filed against the order dated 28. 2. 89 by Sri S. S. Ashutosh, Sub Divisional Magistrate, Handia, District Allahabad, dropping the proceedings under Section 145 Cr. P. C.

(2.) THE facts of the case are that on the basis of the report by S,o. P. S. Handia dated 9. 9. 86 the S. D. M. concerned initiated proceeding under Section 145 Cr. PC. and passed order under Section 145 (i) Cr. P. C. on 15. 9. 86. THE proceedings related to agricultural "land. THE first party, Smt. Usha Devi asserted that there was apprehension of breach of peace. THE second party, Rakesh Kumar, filed written statement asserting that he was the owner of the land in question. He also asserted that he was in possession over the land and that the first party was not in possession over the same. He also asserted that a civil suit is pending before the authorities in respect of the same land, hence the proceedings under Section 145 Cr. P. C. could not be filed or continued. THE opposite parties Nos. 2 and 4 also filed the written statement making allegation against the opposite party No. 1 THEy also alleged that a suit was pending in the court of Munsif concerned in respect of the property in dispute. THE learned Magistrate by the impugned order held that as a civil suit was pending in respect of the property which was in dispute in the proceedings, under Section 145 Cr. P. C. these proceedings cannot continue. Reliance was placed on the rulings in the cases Ram Sumer Puri v. State of U. P, 1985 (22) ACC 45 (SC) and Shiv Muni Pandey v. Bharti Lal, 1988 ALJ Page 123. In this revision it has been asserted that the learned Magistrate was totally wrong in dropping the proceedings under Section 145 Cr. P. C. merely on the ground that a suit had been filed by Smt. Usha Devi. THEy have asserted that in that suit neither the question of title nor the question of possession was in issue, hence merely because Smt. Usha Devi had filed that suit which was for main tenance, the learned Magistrate could not have dropped the proceedings.

(3.) IN the present case the copy of the plaint in suit No. 1012 of 1985 filed by Smt. Usha Devi against Rajesh Kumar and four others has been filed. It will be clear from the averments made in the plaint in that suit and also from the relief sought that the suit did not involve the determination of the question of title and possession over the land in dispute. The plaintiff in that case did not challenge the title of the defendant No. 1, Rajesh Kumar over the land in dispute nor she claimed her possession over the land. She made allegations against the character of defendant No. 1, Rajesh Kumar and alleged that he was friltering away this property. She also alleged that the defendant No. 1, who was her husband was neglecting her and was not maintaining her. It was in these cir cumstances that she prayed that the defendant No. 1 be restrained by means of an injunction from transferring or otherwise disposing of the property. She also prayed, in the alternative that she be allowed maintenance Rs. 500. 00 per month and the main tenance should be made a charge over the property in dispute. It is obvious that the question of title and possession over the land was not in dispute in that suit. It appears that subsequently the suit was withdrawn. However, that is not very material for deter mination of this revision. What is material is that in that suit also same property was subject matter of the suit which was in dispute in the proceedings under Section 145 Cr. P. C. also. However, as mentioned earlier, that suit was not for or the determination of title or possession over the land. IN view of these proceedings the ruling in Ram Sumer Puri's case could not be made applicable to the present case nor the proceedings under Section 145 Cr. P. C. could be dropped merely because Smt. Usha Devi had filed the civil suit in the civil court. The second ruling relied upon by the learned Magistrate, as mentioned above, follows the ruling in Ram Sumer Puri's case and it is not necessary to refer to the same.