FAKIR CHAND Vs. SUB DIVISIONAL MAGISTRATE

JUDGEMENT

(1.) IN this petition under Section 482 of the Code of Criminal Procedure (hereinafter called 'the Code') the proceedings under section 145 and 146 of the Code taken by the Sub-Divisional Magistrate, Kaithal, respondent No.1, are sought to be quashed.

(2.) THE land in dispute situated in village Kheri Sankra in district Kurukshetra was owned by Smt. Kanti widow of Harphool. The petitioners as well as Smt. Siria, respondent No.2 are rival claimants of this land. Each of them has alleged that Smt. Kanti has transferred the ownership of this land with possession to them. The respondent No.2 filed a suit on March 10, 1986 (Annexure P.1) against the first two petitioners, namely, Faquir Chand and Narsi for being declared as owner in possession of the land and seeking permenant injunction restraining the defendants from interfering in her possession. In the wake of an application for temporary injunction filed alongwith the suit the learned trial Court initially on March 11, 1986 passed an ex parte order restraining the defendants from interfering with the possesion of the plaintiff but subsequently after hearing both the parties the order was modified on November 19, 1986 and maintenance of status quo was ordered. At the instance of respondent No.2 proceedings under Section 145 of the Code vis-a-vis the land in dispute were initiated by the Sub-Divisional Magistrate, respondent No.1 vide an order dated August 8, 1986 (Annexure P.4). Subsequently an order dated 9.2.1987 (Annexure P.5) was passed by the learned Magistrate under Section 146 of the Code attaching the land in dispute and appointing Naib Tehsildar, Pundari, as its Receiver. The petitioners have contended that a civil litigation being pending between the parties regarding the disputed land, the learned Magistrate was neither competent to initiate proceedings under Section 145 nor attach the land under Section 146 of the Code. The legality of both these orders (Annexures P.4 and P.5) has, therefore, been assailed in this petition.

(3.) THE order dated February 9, 1987 (Annexure P.5) passed under Section 146 of the Code, however, stands on a different footing. The order of status quo has been passed by the civil Court in the suit pending between the parties. The object of this order is that whichever party was in possession of the the disputed land, should remain in possession during the pendency of the suit. The passing of the order under Section 146 of the Code must, therefore, be considered to interfere with the order of status quo passed by the Civil Court. The Executive Magistrate cannot be allowed to order for the taking away of the property from the hands of the party in possession and to hand it over to the Receiver appointed by him. This view has earlier been taken by this Court in Crl. Misc. No.1833-M of 1985 (Jai Singh and others v. State of Haryana and another), (1985(2) Recent Criminal Reports 159) decided on July 16, 1985. In case the learned Magistrate is apprehensive of breach of peace then it is open to him to initiate proceedings under Section 107 of the Code. Admittedly, the provisions of this Section have already been employed in this case.