S.B. CRIMINAL MISC. PETITION NO. 612/2008 (Lal Mohammad Vs. State of Raj. & Anr.) Date : 19.11.2008 HON'BLE MR. C.M. TOTLA, J. Mr. B.M. Bhojak for the petitioner. Mr. O.P. Rathi, P.P. Mr. Rajesh Panwar for the respondent. = = = = The Executive Magistrate, Sardarshahar initiating proceedings under Section 145 Cr.P.C No. 17/98 (6/92) ordered attachment of plot and possession taken by receiver on 04.07.92. The application under Section 145 (4) Cr.P.C was decided by Magistreal court on 06.04.04. The above order dated 06.04.04 was challenged in S.B. Criminal Misc. Petition No. 932/04 decided on 18.01.2008 according to which directions for quashing of proceedings are like this ; “Undoubtedly, civil litigation came into being between the parties and in this civil litigation, certain observations have given in favour of the parties. In that view of the matter, proceedings under Section 145 (4) cannot survive for the simple reason that Civil court had reason to decide the case. In that view of the matter, the proceedings under Section 145 are not liable to continue and the same are quashed.” In compliance of the above order, learned Executive Magistrate vide impugned order of 28.4.08 dismissing the proceedings directed that as per civil court judgment dated 16.04.03 and as the land is allotted to Anjuman Kureishian Muslim Musafir Khana Samiti” possession be given to it i.e. respondent no.2. Petitioner requests reversing of above order and direction for handing over possession to the petitioner. Learned counsel for the petitioner argued that (i) proceedings under Section 145 Cr.P.C began apprehending some breach of peace and (ii) at that time the possession was with petitioner – 1 according to memo of taking possession by receiver itself, the possession was taken from the wife of petitioner – (iii) in proceedings under Section 145 Cr.P.C, if the order registering proceedings is set aside then, possession is to be given to the person from whom possession is taken (iv) learned Magistrate wrongly and without any authority has mentioned about the intent of High Court order 18.01.08 (v) wrong interpretation and inference is taken in terms of dismissal of civil suit. Argued that provisions of Section 145 Cr.P.C and related are very much clear – either the possession is to be given to the party with whom the possession was within preceding two months or as per orders of civil court or on termination possession can be directed only to the person who was in possession. Argued that though civil suit of petitioner was dismissed but in that suit, possession and title was never in dispute and that suit dismissed long years after initiation of proceedings under Section 145 Cr.P.C and in any case because of dismissal of civil suit, possession cannot be given to other parties as when possession was taken, only and exclusively petitioner was in possession. In support of contentions, reliance placed on decisions :- (i) 1982 Cri.L.J 890 Wajid Mirza Vs. Mohammad Ali Ahmed & ors. (ii) 2002 Cr.L.R. (SC) 352 Ranbir Singh Vs. Dalvir Singh & Ors (iii) 1988 Cr.L.R. (Raj) 606 Mst. Dhan Kaur Vs. State of Rajasthan & Ors. (iv) AIR 1959 SC 960 Bhinka & ors. Vs. Charan Singh. On behalf of petitioner, it is submitted that as the possession is taken from him while terminating proceedings of Section 145 Cr.P.C, in absence of any specific order of Civil court, the possession is to be given to the petitioner. Learned counsel for the respondent argued that prior to these proceedings under Section 145 Cr.P.C, petitioner instituted a civil suit against respondent no.2 and Municipality in August, 1989 for declaration and injunction – suit after evidence dismissed on 16.7.03. Submitted that first appeal is also dismissed vide judgment dated 17.8.06 and though second appeal is pending, no stay is. Argued that as civil suit 2 of petitioner for injunction and declaration stands dismissed, then petitioner cannot claim any right or possession. Extensive attention drawn towards points raised and issues framed. Submitted that neither tittle is of plaintiff nor was. Argued that specific is the finding on the title and possession and Plot is allotted to defendant no.2 (respondent no.2). Considered arguments and perused the impugned orders and also that of civil suit. While proceeding under Section 145 Cr.P.C and subsequent provisions, Magistrate is not to decide question of title. As per Section 145 (4) Cr.P.C, if any party is dispossessed within preceding two months, then possession to so dispossessed can be directed. While deciding under Section 145 (4) Cr.P.C, if a party was in possession or should be in possession then forbidding disturbance such possession can also be ordered. As per provisions of Section 146 Cr.P.C, if Magistrate is unable to satisfy himself as to who was in possession, then attachment can be till determination of rights of parties by competent court. Here, in this particular case, prior to initiation of proceedings, petitioner instituted civil suit for declaration and permanent injunction. According to judgment, issue no.1 is for title and possession of plaintiff and also if plaintiff entitled for regularisation, issue no.2 is in terms whether allotting plot to defendant no.2 (respondent no.2) possession is handed over. Issue no.4A is regarding nullifying lease deed executed by Municipality in favour of respondent no.2. Specific finding on issue no.1 is to the effect that plaintiff could not prove his possession and title and also not as to get it regularized in his favour. Finding on issue no.2 is also negative i.e. against the petitioner. Finding for lease deed from Municipality in favour of respondent no.2 is also against the plaintiff. These findings on all the issues are upheld in first appeal. Petitioner's basic argued seems to be like this that nowhere it is held that he was not in possession, whereas, as per memo taking possession, possession taken by receiver from the year 1992. It is not the position neither is the intent that determination 3 of rights of parties by Civil Court is necessarily to be consequential to the direction of a Magistrate or in proceedings (civil suit) to be instituted after narration of proceedings under Section 145, Cr.P.C. Considering all above, particularly exhaustive judgment of Civil court, the contentions of petitioner have no force. Specific is issue no.1 with regard to possession and title and very specific is the finding that plaintiff could not prove his possession or title. The suit was filed in year 1989. Similarly, specific is the finding that plaintiff i.e. petitioner not entitled for possession. Plain and clear are the provisions of possession as to above either who was dispossessed within preceding two months or who is in possession or as per determination of rights of parties by Civil court. There is a positive finding to the effect that plot is allotted to respondent no.2 and also that possession also given to respondent no.2. As such, for the instant contentions that Civil Court has not decided possession or suit was not for possession and that possession is to be restored only to petitioner, holds no ground. The petition is devoid of merit and is dismissed. (C.M. TOTLA), J. 4