IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.133 of 1994 (O&M) Date of decision: 10.5.2010 Sh. Gulab Rai through his LRs. -----Appellants Vs. Sub Divisional Magistrate & others. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH Present:- Mr. R.K. Gupta, Advocate for the appellant. Ms. Ritu Bahri, Sr. DAG, Haryana. --- ORDER: 1. This appeal has been preferred against order of learned Single Judge, dismissing the writ petition of the appellant for direction to restore possession of the land in dispute to him. 2. Case of the appellant is that he was in possession of the land in dispute in the year 1982. Proceedings under Section 145 of the Code of Criminal Procedure were initiated on a dispute between the appellant and one Kali Ram. The property was attached on 31.3.1982. The S.D.M. held that Kali Ram was in possession on 27.9.1982. The said order was set aside by the LPA No.133 of 1994 revisional Court on 4.4.1983 and after remand, vide order dated May 22, 1987, the appellant was held to be in possession. 3. Writ petition was filed to enforce the said order. Vide interim order dated 17.11.1988, the S.D.M. was directed to comply with the order of restoration of possession. Later, one Mohan Singh was impleaded as a party, who claimed to be the lessee of the Punjab Wakf Board. Thereafter, after recording the statement of the Secretary of the Wakf Board, finding has been recorded that the property was vested in the Wakf Board and was leased out to Mohan Singh. In view of the said finding, the writ petition was dismissed. 4. We have heard learned counsel for the parties. 5. It has been brought to our notice that Mohan Singh filed a civil suit on 10.5.1988 which was decided on 4.5.1995 and permanent injunction was granted in his favour and against the appellant from taking possession forcibly. Therein, the stand of the appellant that he was put in possession by the S.D.M. was also noted and dealt with. 6. Learned counsel for the appellant submitted that once order was passed by the Magistrate on 22.5.1987, holding the appellant to be in possession, the appellant acquired right to be put in possession irrespective of the rights of the parties and thus, leaned Single Judge was not justified in dismissing the writ petition. 2 LPA No.133 of 1994 7. We are unable to accept the submission. It is well settled that proceedings under Section 145 of the Code of Criminal Procedure are summary proceedings to prevent breach of peace. The Executive Magistrate does not decide rights of parties but only summarily determines as to who was in possession at a given point of time. Unsuccessful party may either seek possession in appropriate proceedings or even claim that it was in possession, notwithstanding finding of the Executive Magistrate to the contrary. Finding of the Executive Magistrate cannot be treated as conclusive in other legal proceedings. Life of such order is to co terminus with order of Civil Court. Even in injunction suit, Civil Court is free to record its own finding which will override the finding of the Magistrate. Reference may be made to law laid down by the Hon’ble Supreme Court in Shanti Kumar Panda v. Shakuntala Devi 2004(1) SCC 438, paras 10, 12 and 21 to 23. 8. In the present case, the Civil Court vide order dated 4.5.1995, recorded finding against the appellant. After the said finding, order of Executive Magistrate was rendered inoperative. 9. It is undisputed that for the last at least 26 years, possession is of Mohan Singh as tenant of the Wakf Board. This being the position, even if the appellant was held to be in possession, at some point of time, no direction can be issued to put him in possession on the basis of finding of the Executive 3 LPA No.133 of 1994 Magistrate when Civil Court and learned Single Judge have held to the contrary. 10. We, thus, do not find any ground to interfere with the view taken by the learned Single Judge, dismissing the writ petition. It is, however, made clear that this order will not affect remedy of the parties to have their rights determined in any other appropriate proceedings. 11. The appeal is disposed of. ( ADARSH KUMAR GOEL ) JUDGE May 10, 2010 ( ALOK SINGH ) ashwani JUDGE 4