SOHAN SINGH Vs. MALOOK SINGH

JUDGEMENT

(1.) THIS is a Criminal Misc. petition filed under Section 482 Cr.P.C. by Sohan Singh and others - petitioners whereby they have prayed the quashing of order dated 16.5.1989 (Annexure P-2) passed by the Sub-Divisional Magistrate, Gurdaspur initiating proceedings under Sections 145 Cr.P.C. and ordering the land in their possession to be attached, receiver to be appointed for taking possession of the said land from them. They have further prayed for the quashing of order dated 8.1.1991 (Annexure P-3) passed by the Additional Sessions Judge, Gurdaspur, dismissing their revision against the order Annexure P-2. Now the facts in brief :

(2.) SOHAN Singh-petitioner has been in possession of agricultural land measuring 20 kanals 5 marlas situated in village Theh Thikha, Tehsil and District Gurdaspur since 8.4.1974 in pursuance of mortgage deed executed by its previous owner Tara Singh. Respondent No. 1 Malook Singh claims that he has purchased this land from Wassam Singh son of Tara Singh after the death of Tara Singh vide registered sale deed executed in the year 1983. Respondent No. 1 wanted to use force so as to take possession from Sohan Singh unlawfully and forcibly. To thwart his effort to dispossess him forcibly, Sohan Singh filed a civil suit for permanent injunction in the Court of Sub Judge Gurdaspur on 23.7.1983, which was decreed on 18.12.1984 and thereby respondent No. 1 was restrained from taking possession of land forcibly i.e. otherwise than in due course of law. In that suit, respondent No. 1 appeared and made statement that he would take possession in due course of law. Thereupon the Sub Judge, Ist Class, Gurdaspur passed order on 16.3.1984 directing Malook Singh that he shall take possession in due process of law and that he will take possession only after redeeming the land. Thereafter, the said suit was decreed. Malook Singh filed a suit for possession by way of redemption in the Court of Sub Judge on 14.5.1984. On 8.1.1985, the suit was decreed ex parte preliminarily. On 10.5.1985, the suit was finally decreed for possession through redemption. The decree obtained by respondent No. 1 for possession through redemption was without jurisdiction because in Punjab, redemption of agricultural land is governed by the Punjab Redemption of Mortgages Act, 1913 and the redemption can be ordered by the Collector on an application made to him in that behalf by the mortgagor desirous of redeeming the land. When Sohan Singh came to know of the ex parte decree for redemption in favour of Malook Singh, he filed application under Order 9 Rule 13 CPC for its setting aside. That application is pending. On 22.11.1985, the executing Court stayed the execution of the decree and recalled the warrant of possession as Sohan Singh furnished security in pursuance of the direction given by the executing Court while staying the execution of the decree. These facts have been taken note of by the Additional Sessions Judge in order Annexure P-3, which is sought to be quashed now. In proceedings under Order 9 Rule 13 CPC, Sohan Singh filed an application under Order 6 Rule 17 C.P.C. for amendment which was declined. Sohan Singh-petitioner filed revision against that order in the High Court. The civil revision petition No. 2511 of 1990 arising out of an interim order passed in proceedings under Order 9 Rule 13 C.P.C. was disposed of by the High Court and the matter was ordered to be taken up again by the Subordinate Judge for recording evidence. It is claimed that Sohan Singh is in actual possession of the land and he has not been dispossessed so far through any process issued by the Court. The warrant of possession which has been issued was recalled on petitioner's furnishing security. Order Annexure P-1 staying the execution of the decree for redemption is still in force. Respondent-Malook Singh filed complaint under Section 145 Cr.P.C. with SHO Police Station, Kalanaur, District Gurdaspur, who put in Kalendra in the Court of Sub Divisional Magistrate, Gurdaspur. The petitioner appeared before the Sub Divisional Magistrate, Gurdaspur and brought to his notice the entire facts. Vide order Annexure P.1/A, the Sub Divisional Magistrate, Gurdaspur ordered the dropping of proceedings under Section 145 Cr.P.C. He ordered that the receiver will hand over the possession to the party who succeeds in the civil suit. The application under Order 9 Rule 13 CPC filed by Sohan Singh petitioner for setting aside the ex parte redemption decree is still pending. The redemption decree has not so far been executed. The execution proceedings have been stayed. Malook Singh respondent got instituted proceedings under Sections 145/146 Cr.P.C. unjustifiably. The Sub Divisional Magistrate, Gurdaspur passed order Annexure P-2 on 16.5.1989 without noticing Annexure P.1. The facts mentioned in Annexure P.1 were not disclosed to the Sub Divisional Magistrate, Gurdaspur by Malook Singh-respondent. The Sub Divisional Magistrate, Gurdaspur passed order Annexure P-2 and appointed respondent No. 2 as receiver and directed him to take possession of the land in ignorance of order Annexure P-1 passed by the Civil Court. The Additional Sessions Judge, Gurdaspur dismissed the revision vide order Annexure P-3 unjustifiably. The Additional Sessions Judge, Gurdaspur while disposing of the revision observed that Sohan Singh-petitioner is mortgagee and he is unnecessarily sticking to the land. He is entitled to receive Rs. 10,000/- only which has been deposited. Order Annexure P-2 was only an interlocutory order and therefore no revision lay. These observations made by the Additional Sessions Judge Gurdaspur are wrong inasmuch as possession is with the petitioner and there is no evidence that he has been dispossessed. Sections 145/146 Cr.P.C. cannot be used to dispossess the one who is in possession. Order Annexure P-2 aims at removing him from possession. It is of civil consequence and affects the civil rights of the petitioner. It is not interlocutory order. Revision was competent against such an order.

(3.) THE proceedings under Sections 145/146 Cr.P.C. could not have been taken when Sohan Singh was in possession and he was sought to be dispossessed by Malook Singh through execution of decree.