Crl.Misc. No.M-24792 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-24792 of 2008 (O&M) Date of Decision:September 01 , 2010 Joginder Pal Sharma ...........Petitioner Versus State of Punjab and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.R.C.Chauhan, Advocate for the petitioner. Mr.Amandeep Singh Rai, Assistant Advocate General, Punjab Mr.R.S.Manhas, Advocate for respondents No. 2 to 5 ** Sabina, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure (for short `Cr.P.C.) seeking quashing of order dated 29.8.2008 passed by the Sub Divisional Magistrate Pathankot (Annexure P1) vide which proceedings under Sections 145(1)/146(1) Cr.P.C. have been ordered to be invoked against the settled principles of law. Respondents No. 2 to 5 moved an application under Sections 145/146 Cr.P.C. for initiation of proceedings. The case of the applicant was that Piara Lal, husband of Raj Rani, respondent No.2 was owner in exclusive possession of the residential house marked `ABCDEF' in the site plan in view of the sale deed dated 27.1.1956. Piara Lal died in the year Crl.Misc. No.M-24792 of 2008 2 1988 and respondents No. 2 to 5 succeeded to the property in dispute. The petitioner had taken illegal possession of two marlas of land out of the plot measuring 4 marlas which has been purchased by Piara Lal. The Sub Divisional Magistrate, Pathankot vide the impugned order attached the property in dispute marked `CDEF' in the site plan and appointed Incharge Police Control Room Pathankot as a Receiver. Hence, the present petition. Learned counsel for the petitioner has submitted that the private respondents were not in possession of the property in dispute. The said fact was evident from the civil suit filed by the private respondents seeking possession of the property in dispute marked `CDEF' in the site plan. Since the dispute was already pending before the Civil court qua possession of the land in dispute, the Magistrate could not initiate proceedings under Sections 145/146 Cr.P.C. Learned counsel for the private respondents No. 2 to 5, on the other hand, has submitted that the petitioner had taken forcible possession of the property in dispute and hence, the Magistrate was competent to exercise jurisdiction under Sections 145/146 Cr.P.C. After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed. In the present case, the dispute relates to two marlas of land out of the plot purchased by Piara Lal vide sale deed dated 27.1.1956. Anneuxre P6 is the copy of the plaint qua the civil suit filed by respondents No. 2 to 5 against the petitioners and others. Headnote B(c) of the plaint is reproduced herein below:- “(C) SUIT FOR POSSESSION of portion of residential house Crl.Misc. No.M-24792 of 2008 3 marked CDEF shown in red colour in the site plan attached and bounded as under:- North - portion of suit property South - street East - Parkash Chand West - House of Rattan Mahajan Situated at Ishwar Nagar, Pathankot, Tehsil Pathankot, District Gurdaspur.” Para 2, 3 ,4, 5 and 6 of the plaint reads as under:- 2. That after the death of Shri Piare Lal on 5.11.1998 plaintiffs have inherited the residential house fully detailed and described above by way of natural inheritance. During the year 2004 defendant no. 1 threatened to dispossess the plaintiffs from suit property and the plaintiffs had filed a civil suit for permanent injunction against the defendant no.1 and in the written statement filed by the defendant no.1 in that suit, he disclosed to be in possession of the sale deed dated 14.3.1969 qua ½ share in the suit property. 3.That on coming to know about the execution of above referred sale deed plaintiffs had immediately applied for certified copy of the sale deed dated xx and on the perusal of the sale deed plaintiffs came to know that father of the defendants no. 1 & 2 by playing fraud got executed sale deed dated 14.3.1969 by producing some one else without the knowledge of Shri Piare Lal and got the deed thumb marked inspite of the fact that Shri Piare Lal was literate and 8th standard pass and used to put his Crl.Misc. No.M-24792 of 2008 4 signatures in Hindi and there was no need for Shri PiareLal to put his thumb impression on the alleged sale deed dated 14.3.1969. The alleged sale deed dated 14.3.1969 is forged, fabricated out of fraud, null and void, illegal without consideration and an act of fraud upon the part of father of the defendants no. 1 and 2 and liable to be set aside. Moreover, the mutation entered and sanctioned on the basis of the above sale deed dated 14.3.69, bearing No. 5835 is also null and void, illegal and an act of fraud upon the part of father of the defendants no. 1 and 2 and liable to be set aside and is not binding on the rights of the plaintiffs. Moreover, there was no need for Shri Piara Lal to execute sale deed qua ½ share of house in which he alongwith his family was residing exclusively. 4.That the plaintiff had filed a civil suit titled as Raj Rani etc. vs. Ram Piarai and another on 15.1.2004 and challenged the above referred forged sale deed dated 14.3.69 and the Hon'ble Civil Judge has been pleased to grant injunction in favour of the plaintiffs during the pendency of the civil suit, but due to some formal defect in the plaint, the above referred civil suit was withdrawn by the plaintiffs and permission to file fresh suit on the same cause of action vide order dated 20.4.06 passed in the court of the then Civil Judge (Junior Division), Pathankot. 5.That after the withdrawl of the above suit, when the plaintiffs were about to institute fresh suit, defendant no.1 persuaded the plaintiffs to compromise the matter and undertook to vacate the portion marked as CDEF shown in red colours after few months Crl.Misc. No.M-24792 of 2008 5 and the plaintiffs agreed to the proposal and did not institute the fresh suit, but the defendant no.1 with malafide intention kept on taking time on one pretext or the other and ultimately defendant no.1 had again in a most fraudulent manner executed sale deed dated 03.07.2007 qua ½ share in respect of the suit property inspite of the suit property inspite of the fact that as per revenue record defendant no.1 was onwer qua ¼ share only. 6.That the sale deed dated 3.7.2007 is illegal, even qua ¼ share as the original sale deed dated 14.3.69 was itself forged and fabricated and did not confer any ownership right on defendants no. 1 and 2, as such both the sale deeds dated 14.3.69 alleged to be executed by late Shri Piare Lal and sale deed dated 3.7.07 executed by defendant no.1 are illegal, fabricated without consideration and an act of fraud and liable to be set aside and do not confer any right in favour of the defendants no.1 and 2 and also not binding on the rights of the plaintiffs. The mutation no. 5835 in favour of defendants no. 1 and 2 as also illegal, collusive and liable to be set aside also not binding on the rights of the plaintiffs.” The said suit was filed on 20.7.2007. Thus, a perusal of the plaint reveals that respondents No. 2 to 5 were not in possession of the portion marked `CDEF' in the site plan on 20.7.2007. The Civil Court is already seized of the matter in dispute. Hence, the Sub Divisional Judicial Magistrate could not initiate the proceedings under Sections 145/146 Cr.P.C. in the year 2008 as respondents No. 2 to 5 were not in possession of the property in dispute at that time. Proceedings under Section 145 Cr.P.C. Crl.Misc. No.M-24792 of 2008 6 could have been initiated, if both the parties were claiming possession over the property in dispute which could result in breach of peace. However, in the present case, admittedly, the possession is with the petitioner and the matter is pending before the Civil Court for adjudication. Hence, no proceedings could be initiated under Sections 145/146 Cr.P.C. Accordingly this petition is allowed. The impugned order is set aside. ( Sabina ) Judge September 01, 2010 arya