RATI MOD Vs. HASAN MOHD

JUDGEMENT

(1.) The revision petition is directed against order passed by Additional Sessions Judge, Gurgaon dated 29.10.2005, whereby the parties have been directed to appear before the Sub Divisional Magistrate for deciding the case afresh. The short and only question raised on behalf of the petitioners is that when the parties admittedly are co-sharers, proceedings under Section 145 Cr.P.C. cannot be initiated. The facts in detail need not be referred to in view of the fact that vide the impugned order, the matter has been remanded on the following ground noticed in para no. 7 of the impugned order:-

(2.) From the above extracted portion, it transpires that the Sub Divisional Magistrate had no power to drop the proceedings in review of an earlier order vide which the land in question was attached, without deciding as to which party was in possession of the property at the relevant date i.e. at the time of initiating proceedings and two months prior thereto. Learned counsel for the respondent-State has filed in Court a report of Sub Divisional Magistrate, Ferozepur Jhirka dated 24.11.2009 in regard to the possession at this point in time. Learned counsel for the respondent has contended that the possession at the initial stage was required to be seen and not at this point in time. Learned counsel has further pointed out that the possession of land was taken by the receiver. The possession of the land, however, was not given to one of the parties in due course of law. I have considered the issues. In 1994 (3) RCR 217 Prakash Chand Sachdeva Vs. State and another, the following has been held by the Hon'ble Supreme Court of India in para no. 3:-

(3.) From the above extracted portion, it transpires that the Hon'ble Supreme Court has held that when claim or title are not in dispute and the parties of their own showing are co-owners and there is no partition, one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. Where the dispute is not on the right of possession but on the question of possession, the Magistrate is empowered to take cognizance under Section 145 Cr.P.C. While the proceedings under Section 107 Cr.P.C. are for public peace and tranquility, Section 145 Cr.P.C. relates to disputes regarding possession between parties concerning any land or water or boundaries thereof. There being no dispute of title between the parties, the only claim to be decided would be if one of the parties had been forcibly or wrongly dispossessed within two months next before the date on which the information was received by the Magistrate. In my considered opinion, taking a cue from the judgment rendered by the Hon'ble Supreme Court of India in Prakash Chand Sachdeva's case (supra), portion of which has been reporoduced above, even in a case where both the parties to the lis under Section 145 Cr.P.C. are co- sharers, the Magistrate is empowered to see if one of the parties has been forcibly or wrongly dispossed within two months next before the date on which the information was received by the Magistrate. In a case of co- sharers, the title is not the dispute. Dispute can be in regard to possession in the absence of partition. In such a case, dispute is not on the right to possession but on the question of possession. If one party is in possession of a portion of property/property as a co-sharer, the other co- sharer cannot be permitted to act forcibly and unlawfully. In such circumstances, Magistrate is empowered to take cognizance under Section 145 Cr.P.C. In the light of the above, the impugned order is upheld and the petition is dismissed. The SDM is directed to ensure expeditious disposal of the matter.