BANAMALI MOHAPATRA Vs. BAJRA NAHAK

JUDGEMENT

(1.) THIS is a petition by the first party in a proceeding under Section 145, Cri. P. C. for quashing the proceeding which is now pending in the Court of the Sub-divisional Officer-cum-First Class Magistrate of Chatrapur.

(2.) THE petitioner had brought and suit (T. S. No. 173/1953) against the members of the opposite party and their predecessors in title for a permanent injunction restraining them from entering, on the disputed land. Though that suit was dismissed by the learned Munsif on 9-5-1957, on appeal the District Judge reversed the judgment and decree of the Munsif and decreed the plaintiff's suit. There was also a Second appeal before the High Court (Second Appeal No. 205 of 1959) in which the District Judge's order was upheld. The plaintiff's title to the disputed property was confirmed and the order of injunction restraining the defendants from entering upon the land was also confirmed. The Judgment of the high Court was pronounced on 24th March 1961. Then on 20-10-1962 the petitioner being apprehensive of trouble from the members of the opposite party sought the protection of the Executive Magistrate and prayed for action under section 144, Cri. P. C. A preliminary notice was issued and in response to the same the members of the opposite party filed a petition before the Executive Sub-divisional Officer saying that they were all along in possession of the property for the last three decades. They completely suppressed the fact that there was a previous litigation between the parties which ended in favour of the petitioner only in 1961. Then the Sub-Divisional Magistrate converted the pro ceeding under section 144, Cri. P. C. into one under Section 145, Cri. P. C.

(3.) THE petitioner first moved the Additional Sessions judge for recommending to the High Court to quash the proceeding. The learned Additional Sessions Judge while being aware of the previous litigation thought that as more than one year had elapsed from the date of the judgment of the High Court in Second appeal viz. , 24-3-1961 and the date on which the petitioner himself sought the protection of the Magistrate viz. , 20-10-1963, the opposite party might have obtained forcible possession of the land notwithstanding the order of injunction passed against them. He also observed that all the members of the opposite party were not parties in the previous litigation, and that consequently the judgment of the high Court may not bind those persons who were not parties. Here the learned additional Sessions Judge has committed an error. One Narasingha Naiako who was defendant No. 4 in the original suit died during the pendency of the appeal before the District Judge and in his place Mandi Nahakani, Hira Nahakani and Siria nahakani were substituted. They are all parties in the proceeding under Section 145, Cri. P. C. before the learned Magistrate. They are obviously bound by the decision in the previous litigation in which their predecessor-in-title Narasingha nahaka was a party. Thus as between the parties in the proceeding under Section 145, Cri. P. C. there was protracted civil litigation in which the petitioner (1st party) was eventually successful. His title to the suit lands was declared and the opposite parties were permanently restrained from interfering with his possession. The decree of the Civil Court ought to be respected by the criminal Courts. It is true that if the opposite party had come forward with the case that after the successful termination of the second appeal in the High Court in favour of the petitioner the latter again resettled the lands with the members of the opposite party there may be some justification for drawing up a proceeding under Section 145, Cri P. C. But the opposite party did not put forward any such plea in the proceeding under Section 145, Cri. P. C. They completely suppressed the fact that there was a previous litigation and urged that they were in possession all along, for three decades. Such a plea cannot possibly be accepted in view of the judgment of the High Court. Even if they attempt forcibly to take possession that would be disobedience of the order of injunction of the Civil Court which ought to be punished according to law. In a case of this kind the successful party in the civil litigation must be maintained in possession and any attempt to interfere with his possession should be prevented only by taking recourse to proceedings under section 107 or Section 144, Cri. P. C. if it becomes necessary. But the starting of a proceeding under Section 145, Cri. P. C. between parties who had already fought out litigation in the Civil Court would, to quote the words of Khawaja Mohamed Noor, J. in Rajendra v. Chintamani, AIR 1939 Pat 151 (at p. 152) "encourage defiance of the decrees of Civil Courts and paralyse the administration of justice. " for these reasons the revision is allowed, the proceedings under Section 145, Cri. P. C. are quashed and the executive Magistrate is directed to take appropriate preventive action if there is apprehension of breach of peace.