K.S. Kumaran, J.
1. First respondentBagga Singh through his son Kamaljit Singh lodged a report with police against Chaman Lal Bhatia, Sukhdev Raj, Baldev Raj and Suraj Parkash sons of the said Chaman Lal Bhatia for initiating action under section 145 Cr.P.C. alleging that he is the owner of 4 marlas in Khasra No. 95/9/1 as detailed in his complaint and had also obtained stay from the Court of Mr. S.S. Hundal, Additional Senior Sub Judge, Kapurthala. He further alleged that a suit for partition is pending in the Court of Miss Manju Rani, Civil Judge, Kapurthala but in spite of the civil litigation, Sukhdev Raj, Baldev Raj, Suraj Parkash and Chaman Lal have violated the stay order, demolished the wall, and had not reconstructed the same. He has further alleged that they have spread jallis, stacked bricks, and have laid foundation so that partition could not be done properly. According to Bagga Singh, violating the orders of the court, they want to change the shape of the land and are bent upon initiating the quarrel, though he did not want to quarrel. He has also alleged that regarding the violation, a report was lodged in D.D.R. No. 22 dated 24.2.1996 at Police Station, Bholath.
2. The S.H.O. Police Station, Bholath has stated in the kalendra that he made enquiries at the spot, perused the record, and on enquiry, it was found that 4 marlas plot in Khasra No. 95/9/1/1 was purchased by Munshi Ram from Som Dutt on 19.10.1977, and mutation was snactioned in favour of Munshi Ram on 28.12.1977. The S.H.O. has further stated that Munshi Ram sold this plot to Bagga Singh on 31.7.1987 and mutation was also sanctioned. Girdawri for 1988 89 was also recorded in the name of Bagga Singh. The S.H.O. has also stated that on 13.6.1978, this very land i.e. 4 marlas in Khasra No. 95/9/1/1 was sold by Som Dutt to Chaman Lal Bhatia, but mutation was not sanctioned. According to the Kalendra, Bagga Singh took possession of the plot from Munshi Ram.
3. It has further been stated in the Kalendra that Chaman Lal etc. filed a civil suit in the Civil Court which was decided in their favour against which Bagga Singh had obtained stay on 12.9.1994. He has further stated that now the case Bagga Singh v. Sukhdev Raj, Bholath is pending in the Court of Miss Manju Rai, Civil Judge, Kapurthala, and stay orders have been passed on 12.9.1994.
4. According to the SHO, if any of the parties want to raise construction on this land, then a dispute can take place as both the parties assert their title over the same, and are in search of an opportunity to raise construction. By making these allegations, the SHO had requested the Sub Divisional Magistrate, Bholath to initiate proceedings under section 145 Cr.P.C., summon both the parties and stop the parties from raising contruction. This Kalendra is dated 19.4.1986.
5. Therefore, M/s Sukhdev Raj, Baldev Raj, Commission Agents through their partner Suraj Parkash have approached this Court under Section 482 Cr.P.C. for quashing the Kalendra under Section 145 Cr.P.C. and the consequential proceedings arising therefrom. According to the petitioners, they have been in possession of the plot measuring 4 marlas in Khasra No. 95/9/1 which was purchased from Som Dutt, and that Bagga Singh (first respondent herein) threatened to interfere with their possession. The petitioners contend that they filed a suit for permanent injunction against Bagga Singh which was decreed by the learned Sub Judge Ist Class, Kapurthala on 10.4.1991 and that the appeal filed by Bagga Singh against the same was dismissed by the Additional District Judge, Kapurthala, vide order annexure P1 dated 20.5.1994. According to the petitioners, they were held to be in possession of the plot at the time of the filing of the suit, that Bagga Singh had taken possession of the same illegally and forcibly during the pendency of the civil suit and, therefore, possession was ordered to be resorted to the petitioners in the said suit, which was confirmed in appeal. The petitioners claim that consequent upon the dismissal of the appeal by the Additional District Judge, they got possession of the said plot in execution of the decree through Bailiff on 24.5.1995, and have been in peaceful possession of the said plot since then. The petitioners also contend that Bagga Singh has also filed a suit regarding the said plot, which is pending before the Sub Judge Ist Class, Kapurthala. Therefore, the petitioners contend that the Sub Divisional Magistrate had no jurisdiction in these circumstances to entertain the Kalendra and to proceed further but in spite of their objection, the Sub Divisional Magistrate had not dropped the proceedings.
6. On notice, Ist respondent Bagga Singh and the second respondent State of Punjab entered appearance through counsel. The Deputy Superintendent of Police, Kapurthala filed a reply on behalf of the second respondent admitting the dismissal of the appeal by the Additional District Judge, Kapurthala but alleging that a suit for partition has been filed in the Court and status quo has been ordered, but in spite of the same, Sukhdev Raj and others demolished the wall over the disputed land and stored bricks etc. He has also alleged that both the parties are claiming title over the plot and were in search of opportunity to raise construction, and apprehending that there was likelihood of breach of peace arising out of the dispute, the Kalendra under Section 145 Cr.P.C. was submitted. He has further alleged that the Additional District Judge, Kapurthala has observed in his judgment dated 20.5.1994 that the defendant has remedy to claim possession of the plot by filing the suit for partition or possession. The Ist respondent has not filed any separate reply but produced annexures R1 to R4 in support of his case for the continuation of the proceedings under Section 145 Cr.P.C.
7. I have heard the counsel for both the sides. The petitioners have produced they copy of the judgment of the Additional District Judge, Kapurthala in (sic) 97 of 26.4.1991 filed by Bagga Singh against Sukhdev Raj, Baldev Raj, Commission Agents by partnerSuraj Parkash and also Kamaljit Singh son of Bagga Singh himself. A perusal of the judgment shows that according to Bagga Singh, Som Dutt, the owner of the plot in question, sold the plot to Munshi Ram on 18/19th October, 1977 and Munshi Ram sold it to Bagga Singh on 31.7.1987. Bagga Singh also claimed to have taken possession of the plot. But the present petitioners who are the plaintiffs in the suit, claimed to have purchased as this property from Som Dutt in the name of Chaman Lal on 13.6.1978 is seen from the Kalendra also. The plaintiffs in the suit namely Sukhdev Raj, Baldev Raj Commission Agents originally filed the suit for permanent injunction, but, alleged that during the pendency of the suit, Bagga Singh had taken forcible possession of the same. Therefore, the Sub Judge Ist Class, Kapurthala decreed the suit directing Bagga Singh to deliver possession of the property. It is against this decree that Bagga Singh filed this appeal C.A. 97 of 1991 but, the same was dismissed by the Additional District Judge, Kapurthala by his Judgment dated 2.5.1994 (annexure P1). The petitioners claim that by virtue of this decree, they have taken possession of the property in execution of the same on 24.5.1995.
8. But the learned Additional District Judge while disposing of the appeal, observed that the sale by Som Dutt in favour of Munshi Ram was earlier to the sale deed in favour of the plaintiffs, meaning thereby, that he could have superior right to ownership than the plaintiffs in the suit but, he also observed that Bagga Singh ousted the plaintiffs in the suit forcibly during the pendency of the suit and therefore, he was directed to restore the possession to the plaintiffs. He further observed that Bagga Singh would have the remedy to claim possession by filing a suit for partition or possession. That is why Bagga Singh filed a suit for possession by partition of this property which is pending before the Sub Judge Ist Class, Kapurthala (annexure R1). Bagga Singh also prayed for permanent injunction restraining the present petitioners from making any construction on the plot. The Additional Civil Judge, Kapurthala has ordered status quo as is seen from annexure P3. Therefore, it is clear that the Ist respondentBagga Singh was directed to restore possession of the property in dispute to the present petitioners and the appeal filed by him was also dismissed, subject to the observations as pointed out above. The present petitioners claim that they had taken possession of the property in execution of the decree on 24.5.1995, has not been denied by the Ist respondent. Further, Bagga Singh has himself filed a suit for possession by way of partition. Therefore, the Sub Divisional Magistrate was not right in initiating the proceedings under Section 145 Cr.P.C. when there is already a decree against the Ist respondentBagga Singh and he has himself filed a suit for possession by way of partition. The contention of the learned counsel for the Ist respondent that the petitioners have violated the order passed by the Additional Senior Civil Judge directing the parties to maintain status quo, will not help the Ist respondent, firstly because the Ist respondent himself had prayed only for an injunction restraining the present petitioners from making any construction or alienating the property in question, as is seen from annexure P3, and secondly, because there is no evidence to show as to when the petitioners made any construction.
9. The learned counsel for the Ist respondent contended that the proceedings before the Executive Magistrate are not parallel proceedings to the proceedings pending before the Civil Court, but, have been initiated by the Sub Divisional Magistrate to defend the order of status quo passed by the Civil Court and, therefore, the proceedings under Section 145 cr. P.C. are competent. in this connection, he also relied upon the decision of this Court in Phuman Singh v. District Development and Panchayat Officer, 1993(1) RCR 434 , but, this decision will not be of any help. Because the person had approached the Executive Magistrate for initiating action under Section 145 Cr.P.C. since the other party who had been restrained from interfering with the possession cannot try to take forcible possession of the land in spite of the order of the Civil Court, and also that in the circumstances, proceedings under Section 145 Cr.P.C. are not parallel proceedings but were proceedings to defend the order pased by the civil Court. This decision will have no application to the facts of the present case because, as pointed out already, Ist respondentBagga Singh is not in possession and has also filed a suit for possession.
10. The learned counsel for the Ist Respondent also relied upon a decision of the Hon''ble Supreme Court in Parkash Chand Sachdeva v. State and another, 1994(3) RCR 217 . That was a case where the son dispossessed his father and the father had initiated proceedings under Section 145 Cr.P.C. and also filed a civil suit for injunction. It was contended that proceedings under Section 145 Cr.P.C. should be dropped in view of the pendency of the civil suit. The Hon''ble Supreme Court held that when ownership is not disputed and there is no partition one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. The Hon''ble Supreme Court also held that where the dispute is not on the right to possession but on the question of possession, the Magistrate is empowered to take cognizance under Section 145 Cr.P.C. This decision again will have no application to the facts of the present case in as much as the Ist respondent is not in possession and was also not forcibly dispossessed by the petitioners. As pointed out already, the 1st respondent has filed a suit for possession by way of partition. As is seen already, the petitioners claim title by virtue of one sale deed and the Ist respondent claims title by virtue of another sale deed. In these circumstances, the proceedings under Section 145 Cr.P.C. are not competent.
11. Another contention taken by the learned counsel for the Ist respondent is that the petitioner could have approached the Sub Divisional Magistrate himself for necessary relief instead of approaching the High Court. But this contention cannot be accepted. The petitioner has specifically stated that he had filed objections before the Magistrate and the proceedings have not been dropped. Further, in the circumstances of this case also, where it is also clear that the proceedings under Section 145 Cr.P.C. are not competent, this Court can certainly interfere in exercise of its power under Section 482 Cr.P.C. In these circumstances, I am of the view that the proceedings under Section 145 Cr.P.C. are not competent.
12. Accordingly, this petition is allowed quashing the impugned proceedings under Section 145 Cr.P.C. by the Sub Divisional Magistrate, Bholath and the consequential proceedings arising therefrom.
