DHARAM CHAND Vs. CHHAJU

JUDGEMENT

(1.) THE plaintiff has filed this second appeal in a suit for declaration and injunction.

(2.) THE dispute between the parties pertains to a 'Gwada' situated in village Milikpur, District Alwar. The plaintiffs case is that he is the owner of this 'Gwada' and is also in possession of the same. However in proceedings under Section 145 Cr.PC. the Sub -divisional Magistrate, Behror declared the possession of the defendants on this 'Gwarda'. Thereafter the plaintiff filed the present suit proving that he may be declared the owner of this 'Gwada' and since he was in possession of the same the defendants may be restrained from interfering with his possession by grant of a perpetual injunction against them. The defendants denied the plaintiff's claim and asserted their own right to the 'Gwada' in question. After recording the evidence of the parties the trial court came to the conclusion that the plaintiffs were proved to be the owners of the 'Gwada' and were also in possession of the same. Consequently he decreed the plaintiff's suit and granted an injunction against the defendants as prayed. The defendants thereupon filed an appeal. The learned Civil Judge, Alwar who decided the appeal by his judgment and decree dated 15 -9 -1966 came to the conclusion that the plaintiff had established his ownership to the 'Gwada' in question but the suit for injunction was not maintainable, in as much as the order in the proceedings under Section 145, Cr.P.C. having been passed against the plaintiff declaring the plaintiff not be in possession of the property, the plaintiff was bound to sue for possession. In this view of the matter the defendants' appeal was allowed and the plaintiff's suit was dismissed by the Civil Judge. The plaintiff has, therefore, come up in second appeal to this court.

(3.) IT is well established that an order under Sub -section (6) of Section 145, Cr.P.C. declaring any party to be entitled to possession until evicted therefrom in due course of law and forbidding the opposite party from such possession until such eviction, amounts to dispossession of the party against whom the order is passed. In Sewa Das v. Ram Parkash AIR 1947 Lah. 173 it was held that the finding of a criminal court that a particular party was in possession of a property on the date on which the breach of peace was likely to occur could not be questioned in Civil court and that party must be held to be continuing in possession until he was evicted in due course of law. It was also held that it was not open to the contesting party in the criminal court to show in a civil suit that he was in possession of the property on the date of the order under Section 145, Cr. P.C. and the party declared to be in possession by the criminal court must be assumed to be in possession at the date of the suit. It was further held that in such circumstances no injunction could be granted by the Civil Court in respect of such properly. It was, therefore, necessary for the plaintiff to have asked for possession of the 'Gwada' in question.