RATAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner, by this miscellaneous petition, has challenged the order dated 5.4.91, passed by the Sub -Divisional Magistrate, Balotra, as well as for quashing the proceedings under Section 145 Cr. P.C. initiated against him on the complaint filed by Mithu Singh.

(2.) MITHU Singh filed an application under Section 145 Cr.P.C. against Madho Singh, Ratan Singh, Inder Singh, Sawi Singh and Chhotu Singh in the Court of the Sub -Divisional Magistrate, Balotra. It was alleged in the complaint that Madho Singh, Ratan Singh, Indra Singh and Sawi Singh are the sons of Kishore Singh and the petitioner and Chhotu Singh are the sons of Madho Singh and grand -sons of Kishore Singh. They, alongwith their father, are in possession over the land bearing Khasra Numbers 28/1, 28/2, 28/3, 28/4, 30, 50, 38, 67 and 72 of village Lalana measuring 38 Bighas 10 Biswas, 31 Biswas, 12 Biswas, 13 Bighas, 12 Bighas 8 Biswas, 1 Biswa, 9 Bighas and 7 Biswas, 17 Bighas and 4 Biswas and 18 Bighas 12 Biswas after the death of Kishore Singh, which took place in Samvat Year 2023. They are paying the amount of Bigodi. The respondents never interferred with the possession of the petitioners but, now, as the prices of the land have increased, therefore, they are trying to take forcible possession over the land from the petitioner and on 12.6.88, when the petitioners were doing the work of farm weeding in the Khasara, the respondents came there armed with weapons to dispossess the petitioners and to kill them. It was, therefore, prayed that there is an apprehension of breach of peace with respect to the land in question and, therefore, the proceedings under Section 145 Cr. P.C. may be initiated. An application under Section 146 Cr.PC was, also, moved by the applicant Mithu Singh for attachment of the property and appointment of the Receiver. The learned Magistrate, on 13.6.88, drew the preliminary order under Section 145 Cr.P.C. after coming to the conclusion that there is an apprehension of breach of peace regarding the possession of the land between the party No. l and the party No. 2. He, also, passed an order under Section 146(1) Cr.P.C. and attached the property and appointed the Tehsildar, Siwana, as the Receiver to take over the possession of the property. The learned Sub -Divisional Magistrate, also, issued notice to the Party No. 2. Party No. 2 appeared before the learned Magistrate and filed the reply. A preliminary objection was taken by the party No. 2 that as the revenue dispute between the same parties is already pending adjudication before the competent Revenue Court, therefore, the proceedings under Section 145 Cr.P.C. are not maintainable. This preliminary objection, raised by the petitioners, was considered by the learned Sub -Divisional Magistrate and the learned Magistrate, vide his order dated 5.4.91, dismissed the application filed by the petitioners on the ground that neither order regarding the possession has been passed by the Civil or Revenue Court nor any injunction has been issued by the Court and, therefore, he has jurisdiction to entertain the application under Section 145 Cr.P.C. and to declare the possession and to pass an order regarding attachment of the property in order to prevent the breach of peace. It is against this order, passed by the learned Sub -Divisional Magistrate that the petitioners have preferred this miscellaneous petition.

(3.) I have considered the submissions made by the learned Counsel for the parties.