ISHA SHARMA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Respondents 3 to 6 herein filed a complaint (Annexure P-I) before the Sub Divisional Magistrate Mukerian against the petitioners herein alleging that a civil suit is pending in respect of the property described in the petition before the Civil Court Dasuya for a declaration to the effect that the property alienated by the father of respondents 3 to 6 is illegal without necessity ultra vires and as having no effect on their rights. Respondents 3 to 6 also alleged in the complaint that they had already submitted a complaint dated 6-1-1996 alleging that the petitioners have destroyed! damaged the wheat crop sown by them and that there is apprehension of causing breach of peace in respect of the property in question. Therefore the respondents 3 to 6 prayed the Sub Divisional Magistrate to initiate proceedings under Section i45 Cr. P.C. and to appoint a Receiver for attaching the property. This complaint was filed on 25-1-1996. On i4-6-1996 the Sub Divisional Magistrate passed an order (Annexure P-2) appointing Naib Tehsildar Talwara to attach the land in dispute (except one particular number about which we are not concerned). The learned Magistrate stated in his order as follows: Whereas it has been made to appear to me that dispute likely to induce a breach of peace existed the parties Sh. Kamal Singh etc. 5,10 Onkar Singh. Bhabnal Tehsil Mukerian Party No.i and Smt. Isha Sharma etc. w /O Surender Mohan s/o Om Parkash r / o V. Hajipur hi respect of abovenoted land in dispute within the limits of my jurisdiction and said parties were thereupon duly called upon to state in writing their respective claims as to the effect of actual possession of the said land in dispute. Both the parties have appeared and requested for the time to put their respective claims. Whereas upon due enquiry. I am unable to satisfy myself as to which of the said personiparties is in possession.

(2.) The petitioners have approached this Court under Section 482 Cr. P.C. for quashing this complaint Annexure P-I and the order of the Sub Divisional Magistrate Annexure P-2 dated 14-6- i996 mentioned above. The petitioners allege that they are owners and are in possession of the lands in dispute as per the registered sale deed. According to them previously the lands were mortgaged to them with possession since 1984. The petitioners also allege that respondents 3 to 6 filed a civil suit on 15-12-i995 for declaration and other reliefs in respect of the lands in dispute that they filed an application under Order 39 Rules i and 2 C.P.C. for restraining the petitioners from interfering with their possession and that the Court granted the injunction only with regard to one Khasra Number. The petitioners allege that the respondents 3 to 6, having failed in the Civil Court approached the Sub Divisional Magistrate by filing a petition under Section i45 Cr. P.C. According to the petitioners proceedings before the Civil Court and the Criminal Court simultaneously are bad in law and especially so when the competent Civil Court has already passed an order. The petitioners alleged that they are in possession of the disputed lands for the last many years and the appointment of the Receiver is unsustainable.

(3.) Upon notice the State of Punjab and the Naib Tehsildar (respondent Nos. 1 and 2) have filed a reply admitting that the names of the petitioners are shown in the column of ownership in the jamabandi, and that Khasra Girdawari is also in the name of the petitioners but also stating that the actual possession was with respondents 3 to 6. These respondents while admitting the mortgage actual possession but when they tried to take forcible possession the private respondents approached the Sub Divisional Magistrate for initiating the proceedings under Section 145 Cr. P.C. The Respondents 1 and 2 have admitted in their reply that the Civil Court has restrained the petitioners only in respect of one Khasra Number. But they have stated the mere pendency of proceedings before the Civil Court does not bar the jurisdiction of Sub-Divisional Magistrate to initiate the proceedings under Section 145 Cr. P.C.