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PATNA HIGH COURT
C.N.Tiwary, J.
Md.Muslehuddin And Another
Versus
Md.Salahuddin
Criminal Miscellaneous No. 764 of 1975 ;
Decided On : JUNE 27, 1975
Held, that the pendency of a Civil Suit is no bar to the initiation of a proceeding under Section 145 of the Code, but ordinarily proceeding under Section 145 should be avoided when a civil suit is pending between the parties for determination of their rights. When there is an apprehension of breach of the peace in such a case, the Magistrate will use his discretion and see whether action under Section 107 or a proceeding under Section 145 of the Code would be more appropriate.
(Para 7)
Code of Criminal Procedure 1973, Section 146 (1)-Proceeding under section 145 drawn up-Magistrate attaching the land and directing the parties to product documents and evidence-Jurisdiction of the Magistrate to proceed after the order of attachment.
Held, that the Magistrate is not entitled to proceed to decide under Section 145 as to which of the parties is in possession after he has attached the subject of dispute under section 146 (1) of the Code. Therefore, the order of the learned Magistrate directing the parties to adduce evidence in order to enable him to decide the question of possession after he has attached the subject matter of dispute under Section 146 (1), is illegal.
(Para 9)
Code of Criminal Procedure 1973, Section 482-Magistrate drawing up a proceeding under Section 145, attaching the land in dispute under section 146 (1) and asking the parties to adduce document and evidence- Order being composite -Portion of the order being illegal-Whole order whether should be quashed.
Where the Magistrate after drawing up the proceeding under section 145 attached the lauds in dispute under section 146 (1), directed the parties to adduce evidence and documents and the contention raised was that the order being separable, that portion of the order which is illegal should only be set aside, Held, that the composite order attaching the subject of dispute and directing the parties to adduce documents and evidence in support of their respective claim to enable the Magistrate to decide the question of possession which is illegal. If the Magistrate could not legally attach the property under Section 146, he could not legally proceed under section 145 of the Code to decide the question of possession. Once the Magistrate considers that it is a case of emergency and attaches the subject of dispute under section 146 (1) of the Code, he has no jurisdiction to take evidence and decide as to which of the parties was in possession at the relevant time. In the circumstances, the entire impugned order has to be quashed.
(Para 10)
1. This is a petition under Sec. 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) for quashing the order of the Sub-Divisional Magistrate, Arrah dated the 14th of March, 1975 drawing up a proceeding under Sec.145 of the Code by converting a proceeding under Sec. 144 into one under Sec.145 and attaching the lands in dispute under Sec.146(1) of the Code.
2. Petitioners Mahammad Muslehuddin and Mohammad Nayeemuddin and the opposite party Mahammad Salahuddin are full brothers. Their father Abdul Heyat died on the 14th of February, 1975.
Abdul Heyat is said to have executed a will and thereafter made a gift of his properties in favour of the petitioners on the 27th of January, 1975. The opposite party filed a petition before the Sub-Divisional Magistrate on the 1st of March, 1975 for action under Sec.144 of the Code. He alleged in the petition that on the death of his father Abdul Heyat he and the petitioners inherited all his properties and came in possession of the same. It was also alleged that the opposite party being the eldest son was in actual possession of the lands left by Abdul Heyat and was managing and controlling the same. It was further said that the petitioners on the basis of a forged, fabricated and concocted deed of gift said to have been executed by Abdul Heyat in their favour were creating trouble in peaceful possession of the opposite party over the lands specified in Schedule A of the petition and they were also creating trouble in the peaceful possession of the opposite party over the lands mentioned in Schedule B of the petition and they were ready to loot away the standing crops which were ripe for harvesting. On the basis of this petition the learned Sub-Divisional Magistrate, Arrah drew up a proceeding under Sec.144 of the Code against the parties on the same day (1-3-1975). The petitioners filed allow cause petition on the 13th of March, 1975 stating inter alia, that Abdul Heyat executed the deed of gift and thereafter on the 27th of January, 1975 gifted the lands to them and they came in possession of the disputed lands during the lifetime of Abdul Heyat by accepting the gift. The petitioners thus denied the claim of the apposite party to have a share in the lands. According to them, the opposite party never got possession over any portion of the disputed lands.
3. The learned Sub-Divisional Magistrate on perusal of the show cause and after hearing the counsel of the parties by his order dated the 14th of March, 1975 converted the proceeding under Sec.144 into one under Sec.145 of the Code and considering the case to be one of emergency attached the disputed lands under Sec.148(1) of the Code. It is against this order that this petition has been filed.
4. It is urged on behalf of the petitioners that the opposite party has also filed a suit being Partition Suit No. 20 of 1975 of the Court of the Subordinate Judge, Arrah on the 21st of February, 1975 claiming one-third share in the properties of Abdul Heyat and has stated in the plaint that he (opposite party) along with the petitioners is coming in possession of the disputed lands and there is unity of title and possession and that the parties are coming in possession according to their share. The learned counsel for the petitioners submits that when a title (partition) suit filed by one of the parties in respect of the subject-matter of dispute is pending the initiation of a proceeding under Sec.145 of the Code is misconceived. He has relied upon some decisions of this Court in support of his contention.
Facts of the case Kamo Sharma V/s. Jagdambi Mahto, (1968 Pat LJR 427) are not similar to the facts of the instant case. In that case a proceeding under Sec.144 of the Code was started on the 30th of November, 1967. Opposite party Jagdambi Mahto had filed a Title (Partition) Suit on the 19th of July, 1966 in the Court of the Subordinate Judge. He filed an application for appointment of a receiver on the 13th of N
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