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IN THE HIGH COURT OF ALLAHABAD
JYOTSNA SHARMA, J.
Prabhakar Tiwari – Appellant
Versus
State Of U.P. And Others – Respondents
Matters Under Article 227 No.10770 of 2022
Decided on : 09-10-2023
The petitioner sought to set aside an order passed under section 146(1) Cr.P.C. and a subsequent revisional court order affirming the same. The petitioner claimed to be in possession of a disputed property, which was challenged by the respondent. The court considered the provisions of section 145 Cr.P.C., which provides for a procedure to prevent breach of peace in cases of land disputes. The court emphasized that the proceeding is preventive and procedural in nature, aimed at maintaining public order and tranquility. The court highlighted the limited scope of enquiry under section 145 Cr.P.C., which focuses on de-facto possession and not on the right to title or ownership. The court also discussed the applicability of section 146(1) Cr.P.C. in cases of emergency or when the Magistrate is unable to determine actual possession. The court found that none of the parties were in actual possession and upheld the decision of the lower courts.
Fact of the Case:
The petitioner claimed to be in possession of a disputed property, which was challenged by the respondent. The dispute arose during construction of a boundary wall, leading to an order of attachment under section 146(1) Cr.P.C. The petitioner sought to set aside the order and subsequent revisional court order affirming the same.
Finding of the Court:
The court found that none of the parties were in actual possession of the disputed property, leading to the order of attachment under section 146(1) Cr.P.C. The court upheld the decision of the lower courts, dismissing the petitioner's claim.
Issues: The main issue revolved around the actual possession of the disputed property, as claimed by the petitioner and challenged by the respondent. The court also considered the applicability of section 146(1) Cr.P.C. in the absence of actual possession by either party.
Ratio Decidendi: The court emphasized the limited scope of enquiry under section 145 Cr.P.C., focusing on de-facto possession and not on the right to title or ownership. The court also discussed the applicability of section 146(1) Cr.P.C. in cases of emergency or when the Magistrate is unable to determine actual possession.
Final Decision: The court upheld the decision of the lower courts, dismissing the petitioner's claim and affirming the order of attachment under section 146(1) Cr.P.C.
JUDGMENT :
1. Heard Sri K.K.Tiwari, Advocate holding brief of Sri Sandeep Kumar Tiwari, learned counsel for the petitioner, Sri Shivanand Mishra, learned counsel for respondent nos.2 to 6 and Sri Hari Pratap Gupta, learned A.G.A. for the State.
2. This petition under Article 227 of the Constitution of India has been moved by the petitioner-Prabhakar Tiwari, against the respondent nos. 2 to 6-Satya Prakash Pandey and 4 Others, all sons of Ram Chandr, and the State-respondent no.1, with a prayer to set-aside the order dated 12.10.2021 passed by the learned Sub-Divisional Magistrate under section-146(1) Cr.P.C., as well as the order dated 15.11.2022 passed by revisional court, affirming the same.
3. As per the submissions of the petitioner:-
• He executed a sale deed in favour of Narendra Pathak and Ratan Pathak on 11.07.1980.
• The name of the vendees came to be recorded in revenue record by order dated 16.01.1992 passed by Naib Tehsildar.
• The order dated 16.01.1992 was recalled on the application of one Ram Chet Pandey, by order dated 14.03.2012.
• The aforesaid order of recall was challenged by Narendra Pathak and Another and the order dated 14.03.2012 was recalled on 18.04.2018, therefore the order dated 16.01.1992 came to be maintained.
• Once again a restoration application was filed by the opposite party challenging the order dated 18.04.2018 and the operation of the order dated 18.04.2018 was stayed, till disposal of restoration application.
• This stay order was passed on 06.07.2018 and the same was in fact set-aside by Tehsildar Budhanpur, by order dated 25.10.2019.
• The aforesaid order dated 25.10.2019 was challenged by Jai Prakash Pandey and Others, by filing a Revision No.2436 of 2019, before the Board of Revenue at Lucknow (Jai Prakash Pandey and Others vs. Narendra Pathak and Another).
• This revision was dismissed on 18.04.2022. Thus the order of stay dated 25.10.2019 was maintained. Therefore, the name of Narendra Pathak and Ratan Pathak continued to remain in the revenue record in the light of order of Board of Revenue dated 18.04.2022. Their names continued to be recorded in revenue record and they executed a registered sale deed in favour of the petitioner on 23.06.2018 and the possession was handed over to the petitioner.
• The name of the petitioner was mutated in the revenue record by order dated 30.11.2019.
4. The main contentions of the petitioner are:-
The petitioner is in actual possession of the disputed property;
The order of the Board of Revenue dated 18.04.2022 has attained finality.
The dispute arose during construction of the boundary wall of the school by the petitioner;
The opposite parties opposed the construction and filed an F.I.R. being Case Crime No.11 of 2020, under sections-147, 148, 379, 427, 504, 506 I.P.C.; the trial is pending;
Meanwhile, the police station-Atraulia, submitted a report on 25.02.2020 for initiating a proceeding under section 145 Cr.P.C. in connivance with the opposite party; a supplementary report was also given by the police on 07.03.2020.
The Sub-Divisional Magistrate without going through the material available on record and without considering the supplementary report of the police and further ignoring the fact of actual possession of the petitioner over the disputed property, passed an order of attachment on 12.10.2021 passed under section 146(1) Cr.P.C.
The criminal revision preferred by the petitioner challenging the order dated 12.10.2021 was dismissed by order dated 15.11.2022.
Both the orders are wholly illegal, arbitrary and unsustainable.
The petitioner is in possession of the disputed property. The opposite parties have no right and title over the same.
They lost their case up to the Board of Revenue, therefore the impugned orders, being bad on facts and in law, are liable to be set-aside.
5. The submissions of the respondent nos.2 to 6 are a
The judgment emphasizes the limited scope of enquiry under section 145 Cr.P.C., focusing on de-facto possession and the applicability of section 146(1) Cr.P.C. in cases of emergency or when the Magis....
Executive Magistrates cannot initiate proceedings under Section 145 Cr.PC if a civil suit related to the same property is ongoing, as it encroaches on civil jurisdiction without established emergency....
The main legal point established in the judgment is the importance of preventing breach of peace and the different objectives of the civil court and the Magistrate in cases of possession disputes.
Parallel proceedings under Section 145 Cr.P.C. are impermissible when a civil suit regarding the same property is pending, as the civil court's decisions on title and possession are binding.
Courts must focus on possession and breach of peace under Section 145 Cr.P.C., and not decide title or right of possession. Proceedings under Section 145/146 Cr.P.C. must end if Civil Court is seized....
Point of law: When a civil litigation is pending for the same property wherein the question of possession is involved and the parties are in a position to approach the civil court for interim orders ....
The ingredients necessary for passing an order under Section 145 (1) of the Code would not automatically attract for the attachment of the property. Under Section 146, a Magistrate has to satisfy him....
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