Proceedings under Section 145 Criminal Procedure Code are not competent where there is a decree against the party seeking possession and the other party has filed a suit for possession by way of partition.

JUDGMENT

K.S. Kumaran, J. - First respondent-Bagga 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 Criminal Procedure Code 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 Criminal Procedure Code, 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 Criminal Procedure Code for quashing the Kalendra under Section 145 Criminal Procedure Code 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 P-1 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 resort