RANGANATH KULABA CHAVAN Vs. DATTATRAYA KESHAVRAO CHAVAN

JUDGEMENT

(1.) This petition arises out of a dispute between the parties relating to an agricultural Land, Gat. No. 36, admeasuring 21 acres and 27 gunthas situate at Mahammadabad, Taluka Jalna. This land originally belonged to respondent No. 1, Dattatraya Keshavrao Chavan. One Asruba was declared to be the owner of this land under section 38-E of the Hyderabad Tenancy Act. By a registered Will dated December 29, 1969, Asruba bequeathed the said land to his daughters, petitioner Nos. 2 and 3 and his pre-deceased sons son, respondent No. 2 to the extent of 1/3rd share each. Thereafter, Asrub died in the year 1970. On his death, petitioner Nos. 2 and 3 and respondent No. 2 became joint owners to the extent of 1/3rd share each in this land. Respondent No. 1 who was the original owner of this land got executed a registered agreement of sale from the guardian of respondent No. 2 in his favour agreeing to sell the entire land to him. On the basis of this agreement of sale the respondent No. 1 tried to interfere with the possession and enjoyment of the land by the petitioner Nos. 2 and 3. The petitioner Nos. 2 and 3 and petitioner No. 1 who is the son of the petitioner No. 2 filed Civil Suit No. 225/78 against respondent Nos. 1 and 2 and also Kamalabai who is the guardian of respondent No. 2 for a declaration of ownership to the extent of 2/3rd share and for an injunction restraining the said respondent Nos. 1 and 2 and Kamalabai from interfering with the possession of the entire land alleged to be in their exclusive possession. By order dated January 23, 1979, the Court, holding that the petitioners had made out a prima facie case both on title and possession granted the petitioners application for injunction and passed an order restraining respondent No. 1 who was claiming to be in possession of the land from interfering with the petitioners possession and enjoyment of the suit land. Respondent Nos. 1 and 2 as well as Kamalabai preferred an appeal challenging the order of interim injunction. The appeal came to be dismissed on February 17, 1979. Thereafter, on May 7, 1979, the sub-Inspector of Maujpur submitted a report that there exists a dispute between the two parties for ownership and possession over the land and that since November 19, 1978, four complaints overs one dispute regarding the land, had been lodged at the Police Station and there was a likelihood of breach of peace. On this report made by the sub-Inspector under Section 145 of the Criminal Procedure Code, the Executive Magistrate passed a preliminary order under section 145 of the Cri.P.C. calling upon the parties to submit written statement and produce evidence. Accordingly, on June 14, 1979, the petitioners filed their written statement stating all the facts, including orders regarding injunction passed by the Civil Court. They also filed four affidavits in support of their case. The respondent Nos. 1 and 2 also filed their written statements on June 15, 1979. On August 10, 1979 the Executive Magistrate passed an order under section 146 of the Criminal Procedure Code attaching the property. This order was challenged by the petitioners in Revision Application filed by them in the Sessions Court at Aurangabad. The learned addl. Sessions Judge held that the proceedings initiated under section 145 of the Criminal Procedure code in this case were misconceived on the facts of the case particularly having regard to the interim orders passed by the Civil Court and the fact that they were joint owners. The learned Judge, however rejected the revision application on the ground that no revision was maintainable against an interlocutory order passed under section 146 of the Criminal Procedure Code. In the meantime, respondent No. 2 filed a suit bearing Civil Suit No. 287 of 1979 in the Civil Court against the petitioner Nos. 2 and 3 for injunction restraining the petitioners from interfering with his joint possession and enjoyment of his 1/3rd share in the land. The application for interim injunction filed by respondent No. 2 in the said suit was rejected. The application of respondent No. 2 for appointing a receiver of the land also came to be rejected on January 4, 1980. Thereafter, on January 22, 1980, the petitioners again applied to the Magistrate to vacate the order of attachment by pointing out the subsequent developments relating to Civil Suit No. 287 of 1979. On this application the Magistrate passed a fresh order on February 20, 1980, attaching the land under section 146 of the Criminal Procedure Code. Being aggrieved by the orders of attachment dated August 10, 1979, and February 20, 1980 the petitioners have filed this revision application.

(2.) It is clear on the facts of this case that the Magistrate had no jurisdiction to pass any order under section 146 of the Code of Criminal Procedure. In Suit No. 225/1978 filed by the petitioner, the Civil Court had passed an order of temporary injunction restraining the respondent No. 1 from interfering with their possession and enjoyment of the suit land. Respondent No. 2 was obviously not made a party, in view of the registered agreement of sale executed in favour of respondent No. 1 by the guardian of respondent No. 2. This order of interim injunction was confirmed in appeal. Then, the respondent No. 2 through his guardian filed a separate suit viz., Suit No. 287 of 1979 against the petitioners. In that suit the respondent No. 2 applied for an interim injunction restraining the petitioners from interfering with his joint possession of the land. This application also came to be rejected. The above facts would show that the orders for attachment under section 146 of the Code of Criminal Procedure was passed by the Magistrate during the continuance of an order of injunction in Suit No. 225/1978 which suit is still pending. The respondent No. 2 failed to get an order for interim injunction in his Suit No. 287 of 1979. As the Civil Court was seized of the matter, the Executive Magistrate could not pass an order so as to nullify the interim injunction granted by the Civil court. The scheme of provisions of sections 145 and 146 of the Code of Criminal Procedure shows that orders passed by the Executive magistrate should be subject to orders passed by the Civil Court. The impugned orders of attachment, under the circumstances, are clearly without jurisdiction. The Magistrate, could not have passed an order under section 145 of the Code of Criminal Procedure on the specious ground that there was a likelihood of breach of peace.

(3.) Mr. Agarwal, the learned Counsel for the petitioners, relied on two decision of this Court in support of his contention that the order of attachment was without jurisdiction as the same was passed when the order of interim injunction passed by the Civil Court was operative. These two decisions are (1) (Sayyad Munira Begam v. Mathew Abraham) Criminal Application No. 1009/75, decided on October 5, 1976, by a Divisions Bench of this Court Chandurkar and P.S. Shah, JJ. and (2) (Yashwant Ganpat Khot v. Smt. Anusayabi Anna Khot) Criminal Revision Application No. 114 of 1978 decided on July 28, 1978, by Jahagirdar, J.