RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL MISC. APPLICATION NO.228 OF 2007 (U/s 482 Of Cr.P.C.) Surendra Chandra & others …………Applicants Versus State of Uttaranchal & others …………Respondents Sri Siddhartha Singh, Advocate for the applicants Sri P.S. Bohra, Brief Holder for the State/respondent nos.1 and 2 Sri J.S. Virk, Advocate for respondent nos.3 and 4 (2) CRIMINAL MISC. APPLICATION NO.331 OF 2008 (U/s 482 Of Cr.P.C.) Navraj Gill …………Applicant Versus State of Uttarakhand & another …………Respondents Sri J.S. Virk, Advocate for the applicant Sri P.S. Bohra, Brief Holder for the State/respondent no.1 Sri Siddhartha Singh, Advocate for respondent no.2 Dated: August 3, 2011 HON. SERVESH KUMAR GUPTA, J. These criminal miscellaneous applications pertains to the same subject matter between the same parties, so these are being disposed of by a single order. Having heard the learned counsel of either parties, it appears that Sri Surendra Chandra and four others in petition no.228 of 2007 are the real brothers and one of the brothers. Sri Amir Chand who is the opposite party no.3 in the said petition executed a registered sale deed on dated 5.8.2005 regarding the land in dispute which is Khasra Nos.51/2, 52, 53 and 571/ having respective area of 0.576 hectare, 0.607 hectare, 0.130 hectare and 0.405 hectare (Total 1.718 hectare) in favour of Sri Navraj Gill, who is opposite party no.4 in petition no.227 of 2007 while he is a petitioner in petition no.331 of 2008. Sri Surendra Chandra and brothers filed a revenue suit no.22/515 on dated 9.9.2006 u/s 229-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 before the Assistant Collector, Haldwani (Nainital) seeking the declaration of their Bhumidhari rights over the land in dispute. Along with the declaration, they prayed for another relief of injunction u/s 229-D of the said Act and the S.D.M. Ramnagar passed a stay order dated 18.9.2006 whereby the said Amir Chand {one of the brothers} as well as co-owners of the land in dispute were restrained to transfer the land in any manner whatsoever. In that revenue suit no.22/515 Sri Navraj Gill was not made a party initially, but has been added as opposite party no.6 on 12.6.2008, i.e. he was added as a party in that revenue suit of 229-B of the Act after passing the stay order by the S.D.M. on 18.9.2006. It is the contention of the learned counsel for the respondent no.4-Navraj Gill that since the stay order was passed by the learned S.D.M. before he was made party, so this order was not applicable upon him. This contention of the learned counsel for respondent no.4 is not acceptable because once he has been made a party on 12.6.2008, all the orders which have been passed in the case ever since its filing, will be deemed to have been applicable upon him. This way it can be said that the said order of the S.D.M. dated 18.9.2006 is binding upon Sri Navraj Gill also. The relevant fact of this controversy is that Sri Amir Chand, who was a vendor of the land in dispute filed a suit for cancellation of the sale deed in the court of Civil Judge (Senior Division) on dated 10.3.2007 while the mutation has already been taken place in favour of Navraj Gill on dated 28.6.2006 in the revenue courts. It has been contended on behalf of Navraj Gill that Sri Amir Chand along with the other brothers became dishonest because of the shooting of the price of the land in question within 2-3 years, so on the one hand they filed a suit for declaration and injunction u/s 229-B and 229-D of the Z.A. Act and on the other, a suit for cancellation of the sale deed was filed in the court of Civil Judge. This controversy between Navraj Gill on the one hand, who was the purchaser of the land and Surendra Chand and his brothers on the other, gave rise to the proceedings u/s 145(1) of Cr.P.C. and the learned S.D.M. of the area passed an order dated 11.4.2007 u/s 145(1) Cr.P.C. as well as u/s 146(1) Cr.P.C. and attached the land, gave it in the custody of Inspector In- charge Police Station, Ramnagar, because he apprehended the breach of peace between the parties questioning the possession of the land in dispute. In another development, the S.D.M. Ramnagar in view of lis between the parties in the High Court vide petition no.228 of 2007, passed an order dated 19.5.2007 to stay the proceedings of case no.9/1 of 2007 u/s 145/146 Cr.P.C. and at the same time, permitted Sri Jagdish Chandra, one of the brothers to harvest the wheat crop standing on the land with certain conditions. The same S.D.M. on dated 27.10.2007 modified his earlier order dated 19.5.2007 and this way both the orders of learned S.D.M., i.e. of 19.5.2007 and 27.10.2007, became the subject of challenge through writ petition no.331 of 2008. In this regard, this Court is of the view that when the matter was in cessation with the High Court for adjudication vide petition no.228 of 2007, then learned S.D.M. could not have passed these orders. So, this way, the C482 petition no.331 of 2008 deserves to be allowed and the orders of learned S.D.M. dated 19.5.2007, as amended vide order dated 27.10.2007, are liable to be quashed. Sri Surendra Chandra and brothers have challenged the legality and validity of the order of attachment dated 11.4.2007 passed by learned S.D.M. of the area on the ground that once the stay order had been passed in the suit no.22/515 by the learned S.D.M., then this order of 11.4.2007 could not have been passed because the order dated 18.9.2004 was equivalent to the order which a civil court passes under Order 39 Rule 2 C.P.C. and when a stay order of a civil court is effective and in operation, then the learned S.D.M. neither could have attached the property in dispute nor he has jurisdiction to appoint the Receiver over the property. Learned counsel on behalf of the applicants/brothers has relied upon a precedent of the Hon’ble Apex Court in the case of “Amresh Tiwari Vs. Lalta Prasad Dubey and another reported in (2000) 4 S.C.C. 440”, wherein it was held that if the civil court has taken the matter under its adjudication, then the proceedings u/s 145 Cr.P.C. should not have been normally initiated. But this is not the position in every case that where a civil suit is filed; proceedings u/s 145 Cr.P.C. would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where interim or final relief regarding possession of the property concerned is granted by the civil court then proceedings u/s 145 Cr.P.C. should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil court would be binding on the Magistrate. Learned counsel on behalf of opposite party no.4-Navraj Gill has relied upon a precedent of this Court in the case of “Manohar Lal Sharma Vs. State of Uttarakhand and another reported in 2010 (1) U.D. 674” wherein a learned Single Judge of this Court has held that in case of emergency, the Magistrate could not be expected to wait for the decision of the civil court and can pass an order u/s 146(1) Cr.P.C. and that, in the circumstances of the case at hand, the attachment could not be said to be illegal. It was also reiterated by the learned Single Judge of this Court that the settled position of law is that when the suit in respect of the property is already pending before a civil court, proceedings u/s 145 Cr.P.C. are not desirable. This legal position, what has been observed by the learned Single Judge of this Court, is in the circumstances when there is no stay order of the civil court in operation. In the precedent of Manohar Lal Sharma (Supra), the eventuality when the stay order is in operation, has not been discussed, while the precedent laid down by the Larger Bench of Hon’ble Apex Court is clear in the matter in controversy and the learned S.D.M. could not have any occasion to pass the orders u/s 145(1) and 146(1) Cr.P.C. when the stay order passed u/s 229-D of the Z.A. Act dated 18.9.2006 was in operation. If Shri Navraj Gill had any grievance, then he was at liberty to contest the suit of declaration u/s 229-B and resisted the stay order granted u/s 229-D of the Z.A. Act besides contesting the civil suit for cancellation of the sale deed pending in the court of Civil Judge. In view of the above, petition no.228 of 2007 has force and it is liable to be allowed and the impugned order dated 11.4.2007 passed by the Magistrate is liable to be quashed. As discussed above, both the petitions, i.e. C482 petitions no.228 of 2007 and 331 of 2008 are allowed. Impugned order dated 11.4.2007 which is under challenge in petition no.228/2007 is quashed and at the same time, order of the Magistrate dated 27.10.2007 impugned in petition no.331 of 2008 is also quashed. (Servesh Kumar Gupta, J.) August 3, 2011 Rdang