SHORAJ SINGH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned Counsel for the parties.

(2.) THIS revision is against the order passed by the Addl. Sessions Judge dated 9 -7 -2001 whereby the Court below has set aside the order of the Magistrate passed under Section 145 Cr. P.C. holding his possession. A perusal of the impugned order shows that the property in dispute in the proceedings under Section 145 Cr. P.C. had already been subject matter of civil litigation between the parties till 1999 when the second appeal was decided vide order dated 24 -11 -1999 by this Court. The settled position that has now come up after the decree of the civil litigation is that 1/3rd part of the property in question belongs to Sarfaraz Ahmad and 2/3rd property is within the ownership of Zahir Ahmad. The learned Addl. Sessions Judge while giving due honour to the decrees passed by the Civil Court as well as this Court found that there was no justification on the part of the Magistrate to have entertained the petition under Section 145 of the Code for deciding possessory title of the parties. It was in this view of the matter that the Court below set aside the judgment of the Magistrate who had held the possession of the second party and had directed the police authorities to see that no interference in his possession over the property is created by the first party or anybody.

(3.) THERE could be no two opinions and the law is settled that once the Civil Court has finally decided the dispute of title between the parties over a particular property, the Criminal Court in a proceeding under Section 145 Cr. P.C. has absolutely no occasion to go beyond the scope of the said decree and pass order contrary to the settled title of the parties in the said property. On this point the learned counsel for the opposite -parties has cited the case of Gaya Prasad v. Addl. Sessions Judge, 1996 (87) RD 430. This Court in the said judgment after having considered several case law has propounded that once a question indicating as to which of the parties is entitled for possession has been decided by a competent Civil Court, proceedings under Section 145 Cr. P.C. are incompetent. In such matter still if some apprehension of breach of piece has arisen the duty of the Magistrate is to proceed under Section 107/116 Cr. P.C. and there would be no justification to commence or continue proceeding under Section 145 Cr. P.C.