HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION No.2262 OF 2008 Dated 21-12-2011 Between: Devareddy Narayana Reddy. …Petitioners. And: T h e Tahsildar & Executive Magistrate, Chittamur, Nellore District and others. … Respondents. HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION No.2262 OF 2008 ORDER: The petitioner seeks for the quashment of the proceedings of the Tahsildar-cum-Executive Magistrate, Chittamur, Nellore District in proceedings bearing No.Rc.B.62/2008, dated 15-4-2008 on the ground that proceedings under Section 145 Cr.P.C. are not maintainable where civil case is pending in respect of the same property and also on the ground of procedural irregularities on the part of the Executive Magistrate. 2. The case of the petitioner is that the petitioner was assigned a patta in respect of Ac.2.16 cents of dry land situate in S.No.364 Aruru Chittamur Mandal, Nellore District. The assignment was effected on 4-1-1979. 3. It is further contended that the petitioner brought the land into cultivation and installed a motor and electricity shed and has been growing crops in the land assigned to him. On the other hand, Tahsildar-cum- Executive Magistrate, Chittamur considered that there was dispute regarding possession of the land and that the petitioner shall be restrained from entering on to the property covered by S.No.364. T h e Harijans and Arundhatiyas of Mitta Harijanawada of Aruru were also similarly restrained through proceedings under Section 145 Cr.P.C. Assailing the same, the petitioner filed the present petition. 4. Sri P.Sridhar Reddy, learned counsel for the petitioner contended that on account of the political factions in the village, the respondents 2 to 4 herein tried to interfere with the possession of the petitioner over the property assigned to him and that the petitioner consequently filed O.S.No.47 of 2007 before the vacation Court, Nellore for grant of a perpetual injunction. The petitioner obtained exparte ad-interim injunction from the vacation Court on 28-5-2007 through orders in I.A.No.174 of 2007. After vacation, O.S.No.47 of 2007 was transmitted to the regular Court and was renumbered as O.S.No.30 of 2007 on the file of the Junior Civil Judge, Kota, Nellore District. I.A.No.174 of 2007 on the file of the vacation Court was renumbered as I.A.No.175 of 2007. Through orders dated 28-2-2008, the learned Junior Civil Judge, Kota made the ad-interim injunction absolute pending disposal of the suit. 5. It is the further case of the petitioner that the petitioner obtained police aid from the Court through orders dated 12-3-2008 in I.A.No.106 of 2008 and that the petitioner also filed a petition in I.A.No.142 of 2008 to implead the Government as one of the parties. His contention is that when a civil dispute is sub judice, the Executive Magistrate has no right to interfere with the dispute. 6. Sri M.Venkata Narayana, learned counsel for respondents 2 to 4 on the other hand contended that interim orders in I.A.No.174 of 2007/175 of 2007 was the respect of the assignment of 1979 and that the very assignment was without proper enquiry. His contention is that the property assigned in favour of the petitioner was Kunta poramboke and could not have been assigned in favour of the petitioner. The learned counsel for the contesting respondents also pointed out that the alleged assignment in favour of the petitioner is false and that the document in that regard was rank forgery. The learned counsel for the contesting respondents submits that the injunction in favour of the petitioner cannot be granted where the alleged patta in favour of the petitioner is fake and that the petitioner did not have title to the schedule property in dispute. Whether the petitioner possesses title or otherwise, the petitioner has been in possession of the property in S.No.364 in respect of which proceedings under Section 145 Cr.P.C. are initiated by the Executive Magistrate. The possession of the petitioner over the disputed property consequently is clearly made out. 7. In that view of the matter, the Executive Magistrate cannot pass any order restraining the petitioner from entering into the petition schedule property where the petitioner is prima facie found to be in possession of the petition schedule property. Added to it, the dispute is before a competent Civil Court. When the dispute regarding possession and perhaps regarding the title of the petitioner is sub judice before a competent civil Court, proceedings under Section 145 Cr.P.C. on the ground that the petitioner has been interfering with the property which did not belong to him is not sustainable. 8. Added to it, Section 145 (3) Cr.P.C. envisages notice to the parties in Section 145 Cr.P.C. proceeding. Admittedly, such a notice was not issued to the petitioner herein. However, as rightly submitted by the learned counsel for the respondents 2 to 4, it would not have been a ground to quash the proceedings but would have been a ground to remit the case to the Executive Magistrate ordering the consideration of the case afresh. 9. It is contended by Sri M.Venkata Narayana that the Executive Magistrate is not debarred from exercising jurisdiction under Section 145 Cr.P.C. if the civil suit is based on possession and not on title. In support of his contention, he placed reliance upon a decision of the apex Court reported in PRAKASHCHAND SACHDEVA v. THE STATE AND ANOTHER ([1]). The Supreme Court distinguished the proceedings under Sections 145 and 107 Cr.P.C. in that case. The Supreme Court held that proceedings under Section 145 Cr.P.C. need not be dropped on the ground of pendency of a civil suit for injunction when the suit was not based on title but raised a question only of dispossession of one co-owner by another co-owner. In the present case, civil suit of the petitioner is not merely on the ground of possession. The petitioner claimed that he was an assignee and thus he became the owner of the property and consequently, came into possession of the property. The possession of the property is on account of assignment and not otherwise. I therefore consider the decision relied upon by the learned counsel for the respondents 2 to 4 has no application to the facts of the case on hand. 10. However, where the dispute is before a Civil Court and where the Executive Magistrate cannot interfere when the lis is sub judice before competent civil Court, I agree with the contention of the learned counsel for the petitioner that this is a case where impugned proceedings dated 15-4-2008 are liable to be quashed. 11. This petition, in view of the above mentioned circumstances, is allowed. The proceedings in Rc.B.62/2008, dated 15.4.2008 on the file of the Tahsildar-cum-Executive Magistrate, Chittamur, are hereby quashed against the petitioner. __________________ Justice K.G.SHANKAR Dated 21-12-2011. Dvs HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION No.2262 OF 2008 Dated 21-12-2011 [1] 1994 AIR (SC)-0-1436