RAM NIWAS Vs. BHAGIRATH

JUDGEMENT

(1.) THIS revision is directed against the order dated 30.10.2008 Annexure P.1 passed by the Court of learned Additional Sessions Judge Narnaul whereby he set aside the order dated 17.5.2007 rendered by the learned Sub Divisional Magistrate, Mahendergarh by accepting the revision preferred there-against.

(2.) THE brief facts giving rise to this petition are that the petitioners had filed an application under Section 145 of Cr.P.C for attaching the land in dispute. Initially, Ram Kishan was the owner in possession of such land. He sold it to Mohan and others vide sale deed dated 20.5.1954. Prabhu and others were four brothers. Parbhati was looking after the affairs of the family. They filed a Civil Suit No. 173 dated 23.3.1955 titled as 'Dilsukh v. Mohan and others in the name of the head of the family for possession by way of pre- emption wherein the predecessor-in-interest of the parties were impleaded as parties. The suit was dismissed. The appeal was filed, which was accepted vide judgment and decree dated 24.3.1956. A decree for possession by way of pre- emption was passed in favour of Dilsukh and others on the basis of judgment/decree dated 24.3.1956. The mutation No. 505 was entered and sanctioned. Parbhati filed a suit for possession by way of pre-emption of 1/9th share. Prabhu and his brothers Parbhati, Mam Chand and Sheo Chand bore expenses of 1/4th share each. During consolidation proceedings, Dilsukh and others and Prabhu got separated their land measuring 9 kanals 16 marlas being half share. Out of this, half share was transferred to Surender, Maha Singh, Ramesh Kumar sons of Mam Chand, 5/12th share to defendants No. 8 to 12, 1/12th share to defendants No. 13 and 14 vide gift deed No. 1584 dated 22.8.2001 secretly. Whereas the petitioners should have been given 1/4th share and others also should have taken 1/4th share after the death of their father Prabhu. Parbhati was wrongly shown as owner in possession of the land in dispute. Respondents No. 1 to 4 by taking an undue advantage of the serious illness of Parbhati got executed Will No. 63 dated 22.8.2001. Thus the Will and the mutation sanctioned on its basis were illegal and liable to be ignored. The petitioners have also filed a civil suit in which status quo has been ordered. Earlier also, the petitioners had filed an application in Police Station Mahendergarh, where the matter was compromised on 16.6.2002 with the intervention of the respectables. The respondents did not act upon the compromise and started interfering in the ownership as well as possession of the petitioners on the property in dispute. Consequently, the proceedings under Section 145 of Cr.P.C were initiated. The parties were granted ample opportunities of being heard before the learned Sub Divisional Magistrate. The report from SHO Police Station Mahendergarh was obtained. Ultimately, the learned Sub Divisional Magistrate held that from the evidence on record, it was not proved as to which party was actually in possession over the land in question and there is apprehension of breach of peace between the parties with regard to possession. As such, the land in question was attached and the Naib Tehsildar was appointed as a Receiver under Section 146 of Cr.P.C. Thereagainst, the respondents filed a revision petition which has been accepted vide impugned order, which is liable to be set aside being unsustainable. The learned Additional Sessions Judge has wrongly held that "a civil suit regarding the declaration and possession is pending between the parties in the Civil Court which has passed the order of status quo and since the Civil Court is seized of the matter, it is not open to the Magistrate to initiate the proceedings under Section 145/146 of Cr.P.C." I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.

(3.) TO drive home the point, he has sought to place abundant reliance upon the observations rendered in re: Mukhtiar Singh v. State of Punjab, 1997(3) RCR(Crl.) 14, Pushpinder Kaur v. Sub Divisional Magistrate, Rajpura, 1997 (3) RCR(Crl.) 315 and Jaswant Singh v. State of Punjab, 1997 (3) RCR(Crl.) 705.