R N SONTHALIYA Vs. RAM PRASAD

JUDGEMENT

(1.) The applicant has prayed that the Receiver be ordered to deliver possession of the attached land to the applicant. The present applicant was a party to proceedings under Section 145, Criminal Procedure Code. That proceeding was decided by the Magistrate on 12-4-1973. The Magistrate held the opposite party to be in possession within two months of the preliminary order and made such declaration directing that his possession shall not be disturbed, unless he is evicted in due course of law. A revision was preferred and a reference was made therein and the High Court rejecting that reference upheld the order of the Magistrate as per this Court Judgment dated 21-5-1974 (Annexure - I) The order of the Magistrate, thus, became final as for back as in May 1974.

(2.) The applicant's submission is that after the dismissal of the injunction suit subsequently he applied to the Magistrate that the possession of the immovable property may be delivered to him, as the injunction suit filed by the opposite party No. 1 has been dismissed. The Magistrate rejected that application and directed that delivery be made to the opposite party No. 1. Feeling aggrieved from the same this application under Section 482, Criminal Procedure Code, has been filed by the applicant.

(3.) The law is well settled that the jurisdiction of the Magistrate under Section 145, Criminal Procedure Code, is independent of any civil jurisdiction. It has also been held that the civil or revenue court decree etc. may have only persuasive value during hearing and the Magistrate is not bound by the same, The case of Kalapdin v. State, Jafar Hussain v. State2 Mst. Honsanki v. State3 and Tikendra v. State4 are authorities on the point. It has been even held that even if there is any temporary injunction order the Magistrate can proceed. In the case of R. A. Bhurani v. Mismani5, it was held that once a preliminary order is passed the Magistrate has to decide the matter under Section 145(4), Criminal Probedure Code, as to pass a final order accordingly. The case of Kaiapdin (Supra) relied upon by the applicants Counsel does not lay down any different proposition of law. It was urged that if the decision of the civil court was later determining the rights, the Magistrate .has to give effect to the same. Such observations are made in the contest of the provisions corresponding to the provisions of Section 145(4) and sub. clause (6) of the present Criminal Procedure Code. It may be desirable to add at this stage the Scheme contained in Section 145 Criminal Procedure Code Section 145(1), Criminal Procedure Code, provides for preliminary order, sub-clause (4) provides for a decision on the right of possession and sub-clause (6) then provides that if the Magistrate decides that one of the parties was or should be treated being in such possession, he shall issue an order declaring such properly to be entitled for possession there of, until evicted there from in due course of law, and forbidding any disturbance until such eviction. This in itself makes abundantly clear that the party, who is declared in possession in the proceedings under Section 145, Criminal Procedure Code, is to have possession undisturbed by other parties, unless he is evicted indue course of law. Reliance was further placed upon the case 6 of Nata Padhan v. Banchha Baral. What has been held in that case is that if final order is passed in a pending suit later, that may take away the effect of the order passed under Section 145, Criminal Procedure Code.