VANYA @ BANESINGH Vs. STATE OF MP

JUDGEMENT

(1.) Subject matter of this petition is an agricultural land bearing survey nos. 371 and 391 admeasuring 5.92 and 1.92 hectare; situated in Village Pipliyaham, Tappa Panbihar, Tehsil Ghatiya District Ujjain.

(2.) Genesis of the dispute between the parties lies in the compensation on account of loss of crops to be given by the government to the owner of the land. Both the parties claimed title and possession over the disputed land. One of the Respondent Ashivini Singh (respondent no.2/R-2) filed a civil suit before the First Additional Civil Judge, Class II, Ujjain to the First Civil Judge, Class II, Ujjain along with the application for interim injunction under order 39 rule 1 and 2 of the CPC on 09.03.2016. This application was later dismissed as withdrawn vide order dated 18.11.2016. During pendency of this petition, the respondents also approached the police alleging that the petitioners are interfering in their possession. SHO, Police Station Bherugarh found that there was a serious dispute regarding possession over the disputed land and it may disturb tranquillity of the vicinity and may create law and order problem. He filed an Istaghasa under section 145 of the Cr.P.C. before the City Magistrate, District Ujjain. The City Magistrate passed a preliminary order on 12.04.2016 and appointed Nayab Tehsildar, Tehsil Ghatiya, District Ujjain receiver and directed him to take possession of the land and also issued notices to the parties to appear before him and to present their case. This order was challenged before the Additional Sessions Judge, Ujjain by filing Revision no.85/2017. Vide order dated 12.04.2017, the Additional Sessions Judge, Ujjain partially allowed the revision. The ASJ maintained the order of appointing receiver and directed the City Magistrate to pass final order in accordance with law after hearing the parties. Against this order, the petition bearing M.Cr.C. No.4860/2017 was filed by the petitioners, but was dismissed vide order dated 22.07.2019 as during the pendency of this petition, the final order was passed by the SDM on 05.12.2017 confirming the preliminary order of appointing Nayab Tehsildar, Ujjain as receiver of the disputed land. This final order was challenged by filing Revision no.65/2018, which was disposed of by order dated 16.05.2018 passed by the Additional Sessions Judge, Ujjain inter alia stating that the order of the City Magistrate, Ujjain dated 05.12.2017 lacks legality. The learned ASJ set aside the order. This is the order of the ASJ against which the petitioners have preferred the present petition.

(3.) Question raised before this Court is that as to whether Executive Magistrate is competent to pass as order in exercising powers under Section 145 Criminal Procedure Code, 1973, when a civil suit for title and possession with respect to the same land is pending before the civil Court?