In family property disputes involving real brothers, joint possession is presumed in the absence of a formal partition, and specific findings about exclusive possession are required under Section 145 Cr. P. C.

Heard Sri Dev Kant Pandey, learned Counsel for the revisionist, learned AGA and have gone through the record.

2. Instant revision has been filed against order dated 28-8-2006 passed by Sub-Divisional Magistrate, Pindara, District Varanasi, in Case No. 5 of 2006, Raghunath Pandey & Anr. v. Ramdhani Pandey, whereby proceeding under Section 145 Cr. P. C. was dropped.

3. In this case the revisionist Ramdhani Pandey and respondents Raghunath Pandey and Ram Naresh Pandey are real brothers. They are sons of Mahadeo Pandey and residents of village Karoma, police station Baragaon, District Varanasi. There being dispute of family property. The case was registered under Section 145 Cr. P. C. but after hearing the parties, it was found that division of the property had not taken place in accordance with law, therefore, proceeding under Section 145 Cr. P. C. was dropped by learned Sub-Divisional Magistrate. While dropping the proceeding it was directed to the Station Officer of police station Badagaon, District Varanasi, to have watch on the parties and their properties and if required proceedings be drawn under Section 17/116 and 116 (3) Cr. P. C.

4. The case of the revisionist is that mutual partition had taken place between the parties and the Sub- Divisional Magistrate was required to make attachment of the property. The Sub-Divisional Magistrate

has observed that respondent No. 2 Ram Naresh Pandey is a blind person. The dispute is to be resolved by filing case under Section 176 of U. P. Z. A. and L. R. Act for partition of property and thus the family property dispute, cannot be decided under Section 145 Cr. P. C. In order have to check on breach of peace the Station Officer concerned was directed accordingly.

5. The learned Sub-Divisional Magistrate also observed that there may be some mutual adjustment but there being no formal and legal partition of the property order under Section 145 Cr. P. C. cannot be passed. The position of law is clear that unless there is a formal partition in accordance with law amongst the parties, it cannot be held that any party is in exclusive possession of any part of the property. Section 145 Cr. P. C. requires specific finding about exclusive possession of a particular party. When the parties are real brothers. in law they have joint possession over the property and no order can be passed under Section 145 Cr. P. C.

6. In 1991 (2) Crimes 527, Kailash Nonia v. Shibu Nonia, it has been held that the possession of one co- sharer of joint family property is possession of the other co-sharer. Unless there is a partition by metes and bounds or there is a case of ouster, every co-sharer in law is deemed to be in possession of every little fraction of joint family property, irrespective of the fact that for the sake of convenience the parties were cultivating separately different portions of lands belonging to their joint family. Since law recognizes all the co- sharers to be in possession of a joint family property, one co-sharer cannot be restrained from going over the same merely because for the sake of convenience another co-sharer has cultivated the same. This being the position, a Civil Court cannot grant perpetual injunction in such a suit, which is bound to fail. If Civil Court cannot grant relief to the party in such a suit, it goes without saying that a Magistrate dealing with a summary proceeding like Section 145 Cr. P. C. cannot grant any relief by passing a prohibitory order.

7. In 1998 (1) JIC 642 (All) : 1998 Cr. L. J. 4689 (Allahabad), Jayanti Prasad v. Kamal Narain, it has been held that in respect of joint property where mutual partition is not has established, proceeding under Section 145 Cr. P. C. cannot be instituted. It was also held that where preliminary order was passed in respect of entire land belonging to the parties, the final order cannot be passed in respect of the part of the land.

8. In 1987 (3) Crimes 803, 805 (Ori), Purana Chandra Biswal v. Brindaban Biswal, it