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2020 Supreme(AP) 129
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI
U. Durga Prasad Rao, J.
A. Pullamma, YSR District - Appellant
Versus
State of AP - Respondent
Criminal Petition No. 7065 of 2013
Decided On : 28-01-2020
Advocate Appeared:
V.R. Reddy Kovvuri, Advocate
Point of Law: When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code.
Headnote:
Criminal Procedure Code, 1973 – Section 145 - Criminal Petition, at the instance of 1st petitioner/A-party, is to the order passed under Section 145 of Cr.P.C holding that the respondents/B-party were in possession of the schedule and they were entitled to be in possession until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction – Held, when the dispute touching the same subject property was either pending or already disposed of by a Civil Court, the proceedings under Section 145 of Cr.P.C are not maintainable. In the instant case, the B-party are seeking to justify the order of learned Executive Magistrate on the contention that an interim injunction was granted in their favour and the petitioner herein has admitted in O.S.No.183 of 2011 that B-party are in possession of the subject land and therefore the order of the Executive Magistrate which is in tune with the Civil Court's order is perfectly right - bone of contention is which order prevails over the other. In my considered view, in such an event, learned Executive Magistrate ought to have directed parties to vindicate their respective rights before the concerned Civil Court where the suit is pending. Hence, the impugned order is not legally maintainable - Criminal Petition is allowed
Facts of the Case:
Criminal Petition, at the instance of 1st petitioner/A-party, is to the order, dated 24.11.2012 passed under Section 145 of Cr.P.C by learned Executive Magistrate, Mydukur, YSR Kadapa District in M.C.No.33 of 2011 holding that the respondents/B-party were in possession of the schedule land of Ac.2.30 cents in S.No.326 in Ganjikunta Village and they were entitled to be in possession until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction.
Finding of the Court:
When the dispute touching the same subject property was either pending or already disposed of by a Civil Court, the proceedings under Section 145 of Cr.P.C are not maintainable. In the instant case, the B-party are seeking to justify the order of learned Executive Magistrate on the contention that an interim injunction was granted in their favour and the petitioner herein has admitted in O.S.No.183 of 2011 that B-party are in possession of the subject land and therefore the order of the Executive Magistrate which is in tune with the Civil Court's order is perfectly right - the bone of contention is which order prevails over the other. In my considered view, in such an event, learned Executive Magistrate ought to have directed parties to vindicate their respective rights before the concerned Civil Court where the suit is pending. Hence, the impugned order is not legally maintainable
Result: Criminal Petition is allowed
JUDGMENT :
U Durga Prasad Rao, J.
The challenge in this Criminal Petition, at the instance of 1st petitioner/A-party, is to the order, dated 24.11.2012 passed under Section 145 of Cr.P.C by learned Executive Magistrate, Mydukur, YSR Kadapa District in M.C.No.33 of 2011 holding that the respondents/B-party were in possession of the schedule land of Ac.2.30 cents in S.No.326 in Ganjikunta Village and they were entitled to be in possession until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction.
2. Learned Executive Magistrate passed the above order on the main observation that A-party has filed O.S.No.183 of 2011 on the file of Senior Civil Judge, Proddatur, wherein itself A-party admitted that B-party has been in possession and further, in the said suit, in I.A.No.1687 of 2011 the Court has granted interim injunction in favour of B-party by restraining A-party in any way interfering with peaceful possession and enjoyment of B-party over the schedule land till disposal of the suit and interim injunction order has become final, as no appeal was filed. No doubt, A-party has contended before learned Executive Magistrate that the schedule land belong to Ankireddipalli Obula Reddy, the husband of respondent No.1 of A-party and in respect of the said land and some other properties, there was a dispute and on 07.10.1998, learned Special Officer of Tenancy Tribunal-cum-Principal Junior Civil Judge, Proddatur, dismissed ATC No.8 of 1997 filed by Sala Veeramma against the respondent No.1 in A-party and other and further, the appeal in ATA No.7 of 1998 preferred by said Sala Veeramma was also dismissed by learned District Judge, YSR Kadapa and therefore, the said order being passed by a superior Court i.e., District Court, Kadapa, the same would prevail over the interim injunction order passed by inferior Court i.e., Senior Civil Judge, Proddatur in I.A.No.1687 of 2011 in O.S.No.183 of 2011. However, learned Executive Magistrate did not give weight to the above contention of A-party on the observation that in O.S.No.183 of 2011 filed by A-party, it has admitted the possession of B-party and prayed the Court for recovery of possession and declaration of title and therefore the possession of B-party was admitted irrespective of judgments in ATC No.8 of 1997 and ATA No.7 of 1998. Accordingly, the Executive Magistrate passed the impugned order.
3. Heard learned counsel for petitioner Sri V.R. Reddy Kovvuri and learned counsel for respondents Sri L.J. Veera Reddy.
4. Seriously castigating the order impugned, learned counsel for petitioner would vehemently argue that when a competent civil Court has seized the dispute relating to the title and possession over the property, the Executive Magistrate shall not take up the same issue and pass an order. On this main plank of argument, he sought to set aside the impugned order.
5. Per contra, while supporting the impugned order, learned counsel for respondents 3 to 5 argued that in this case even according to the admission of the petitioner in O.S.No.183 of 2011, the B-party herein are in possession of the schedule land and in fact, the Civil Court granted interim injunction in their favour in I.A.No.1687 of 2011 and therefore considering these facts learned Executive Magistrate passed the order stating that the possession of B-party shall continue until they are evicted by due course of law. Since the said order is in consonance with the interim order of the Civil Court, the same cannot be found fault. He prayed to dismiss the petition.
6. The point for consideration is whether there are merits in the criminal petition to allow?
7. The law on the powers of Executive Magistracy to pass an order under Section 145 of Cr.P.C is no more res integra. The power conferred under Section 145 Cr.P.C is one of preventive but not decisive in respect of the title concerning to any land or water or the boundaries of a property which is the bone of contention betwee
