K.P. Mohapatra, J.@mdashThis revision is directed against an order passed by the Executive Magistrate, Bhadrak, declining to interfere with the preliminary order dated 29-11-1988 and directing the local Revenue Inspector to remain as the custodian of the disputed land.
2. Facts of the case. The disputed lands with an area of 3.85 acres are situate in three villages named. Ishanpur, Sadanandapur and Guamal within Tihidi Police Station of Bhadrak sub-division as per the land schedule of the preliminary order. Mohan Misra, admittedly was the owner thereof Opposite party No. 1 who is the first party claims possession of the disputed lands as the adopted son of Mohan Misra whereas, the Petitioner who is a member, of the second party in the proceeding u/s 145 Code of Criminal Procedure claims that he is the adopted son and is in possession thereof. There cannot be two adopted sons of one adoptive father and both of them cannot at the same time remain in possession of the lands left by him. Either opposite party No. 1 is the adopted son in possession of the suit lands or the Petitioner is the adopted son of Mohan Misra who is in possession thereof. In order to resolve their mutual dispute, both of them have taken recourse of civil as well as criminal proceedings. On the civil side opposite party No. 1 has filed Title Suit No. 86 of 1988 in the Court of Munsif Bhadrak claiming to be the adopted son of Mohan Misra and consequently he is entitled to the disputed lands left by him. Petitioner is the Defendant in that suit. Title Suit No. 194 of 1987 was instituted by the widow of Mohan Misra for setting aside the deed of adoption said to have been executed in favour of the Petitioner. Facts are not clear as to who has been substituted as the legal representative in the suit after her death. But this much is clear and is not in the dispute that in Title Suit No. 86 of 1988 opposite party No. 1 filed a petition under Order 39, Rule 1, CPC which has since been disposed of and both parties to the suit have been temporarily injuncted from alienating the disputed lands or any part thereof. Against the aforesaid order opposite party No. 1 has filed Miscellaneous Appeal No. 39 of 1988 which ii pending in the Court of the Subordinate Judge. Bhadrak. In the said appeal Misc. Case No. 147 of 1988 has also been filed by him under Order 39 Rule 1, CPC praying for injuncting the Petitioner from coming over and disturbing his possession in respect of the disputed lands. On the criminal side, Misc. Case No. 67 of 1988 u/s 145 Code of Criminal Procedure was initiated and as already referred to above, a preliminary order was passed by the Executive Magistrate on 29-11-1988. This case is pending.
3. The point of dispute between the parties being very simple the case has been taken up for final disposal with the consent of the learned Counsel so as to avoid delay and ready settlement of, the present dispute. On bearing them it is found that the sole point for consideration is whether in view of civil proceedings there was any necessity of initiating a case u/s 145, Code of Criminal Procedure and if two simultaneous proceedings should be permitted to continue.
In this respect, it is necessary to make reference to a few decisions. In Ashok Kumar Agarwalla and Anr. v. Sankarlal Choudhury 1974 C.L.R. 259, a learned Judge of this Court held that the purpose of an order u/s 145, is to prevent the breach of public peace at the instance of the parties and to compel them to have their rights adjudicated by a competent Civil Court and not to take the law into their own bands: When the parties have already approached the Civil Court and the Civil Court has made an order of temporary injunction, there is no necessity of taking recourse to Section 145, Code of Criminal Procedure.
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It has, however, been held in Brajamohan Nath v. Sm. Kesi Tripathy and Anr. 1984 Cri.L.J. 112, by a learned Judge of this Court that the Magistrate has always jurisdiction to initiate and continue a proceeding u/s 145, Code of Criminal Procedure to prevent breach of peace and to maintain law and order irrespective of the pendency of a civil suit unless an interim order of the civil Court with respect to possession of the disputed land is in operation. There are also some other decisions of this Court holding the same View.
In consideration of the views expressed in the above decisions, it cannot be laid down as an absolute proposition of Jaw that during pendency of a civil suit, in the event of apprehension of breach of peace, a proceeding u/s 145, Code of Criminal Procedure cannot be initiated by an Executive Magistrate, when it is reported or otherwise it comes to his notice that there is serious and imminent breach of peace relating to lands between two or more parties and there is no to me or it is not possible to obtain orders urgently from the civil Court in a pending suit/case so as to avert the breach of peace which might lead to bloodshed and loss of life, the Executive Magistrate must have to spring into action and exercise his jurisdiction u/s 145, Code of Criminal Procedure. So all that can be said is that facts will differ from case to case and in appropriate cases when there has not been an interim order with regard to possession of land by the civil Court and if the Executive Magistrate finds imminent apprehension of breach of peace, in order to prevent the as me he has jurisdiction to initiate a proceeding u/s 145, Code of Criminal Procedure. But if there is time and opportunity and the civil Court in a pending suit can give relief by virtue of which breach of peace can be averted, parallel proceedings in civil and criminal Courts should not be permitted to continue, because the intention of law is not to encourage multiplicity of proceedings for which not only public time is wasted but the parties are also harassed to a great extent.
4. In the case in hand as already referred to above both opposite party No. 1 and the Petitioner claim as adopted son of Mohan Misra. Two suits have been filed. In a proceeding arising out of one of the suits (Title Suit No. 86 of 1988) a petition for temporary injunction has been filed by opposite party No. 1. If the Court after hearing both parties grants injunction restraining the Petitioner from entering upon the disputed land, then there shall be no possibility of apprehension of breach of peace and in case the Petitioner shall violate the order there is appropriate penalty provided in the CPC itself for punishment. If, on the other hand, the petition for temporary injunction will be rejected it must be deemed to mean that the Court intends the property to be retained by the Petitioner till the disposal of the suit. So in either case, the civil Court is competent to pass orders, whereby apprehension of breach of peace between the parties can be averted. In such an event, there is absolutely no necessity to take recourse to parallel proceedings in the civil Court and u/s 145, Code of Criminal Procedure.
5. In view of the above analysis, I would direct the learned Subordinate Judge, Bhadrak before whom Miscellaneous Appeal No. 39 of 1988 and Misc. Case No. 147 of 1988 are pending, to dispose of the same within period of two months. Till the disposal of these two cases the local Revenue Inspector as already directed by the Executive Magistrate shall remain as custodian of the disputed land. He shall perform agricultural operations and shall render accounts to the Executive Magistrate. He shall also deposit the net income after deduction of the cultivation expenses in the said Court which shall lie in deposit till the rights of the parties are finally determined in the civil suit. The Executive Magistrate shall implement the order and give necessary directions. In the light of this direction, it is not necessary to retain the preliminary order u/s 145, Code of Criminal Procedure.
6. In the result, the preliminary order u/s 145, Code of Criminal Procedure in Misc. Case No. 67 of 1988 is quashed and the criminal revision is disposed of subject to the observations made above.
Ordered accordingly.
