Crl. Rev. No. 210 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Rev. No. 210 of 2006 DATE OF DECISION: January 11, 2010 Rati Mod. and others .........PETITIONER(S) VERSUS Hasan Mohd. and others ......RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. Sachin Mittal, Advocate, for the petitioners. Mr. Sudhir Aggarwal, Advocate, for respondents. AJAI LAMBA, J. (ORAL) The revision petition is directed against order passed by Additional Sessions Judge, Gurgaon dated 29.10.2005, whereby the parties have been directed to appear before the Sub Divisional Magistrate for deciding the case afresh. The short and only question raised on behalf of the petitioners is that when the parties admittedly are co-sharers, proceedings under Section 145 Cr.P.C. cannot be initiated. The facts in detail need not be referred to in view of the fact that vide the impugned order, the matter has been remanded on the following ground noticed in para no. 7 of the impugned order:- “7. The learned counsel for the revisionist Crl. Rev. No. 210 of 2006 2 has argued that when the land in question was attached vide order dated 2.4.1998 and Nasru Lamberdar of village Bisru was appointed as receiver to take the possession thereof, then the S.D.M. had no power to drop the proceedings subsequently without deciding as to which party was in possession of the property on the relevant date i.e. Initiating proceedings and two months prior thereto. This position of law has been conceded by the learned counsel for the respondents. Hence, in view of the same, it can be said that the impugned order dropping the proceedings, was palpably wrong. Had the learned S.D.M. passed the speaking after recording the proper reasons in support thereof then the order could have been said to be correct but this is not the position, therefore, the impugned order is hereby set aside and the present revision petition accepted.” From the above extracted portion, it transpires that the Sub Divisional Magistrate had no power to drop the proceedings in review of an earlier order vide which the land in question was attached, without deciding as to which party was in possession of the property at the relevant date i.e. at the time of initiating proceedings and two months prior thereto. Learned counsel for the respondent-State has filed in Court a report of Sub Divisional Magistrate, Ferozepur Jhirka dated 24.11.2009 in regard to the possession at this point in time. Learned counsel for the respondent has contended that the possession at the initial stage was required to be seen and not at this point in Crl. Rev. No. 210 of 2006 3 time. Learned counsel has further pointed out that the possession of land was taken by the receiver. The possession of the land, however, was not given to one of the parties in due course of law. I have considered the issues. In 1994 (3) RCR 217 Prakash Chand Sachdeva Vs. State and another, the following has been held by the Hon'ble Supreme Court of India in para no. 3:- “3. True, a suit or remedy in civil Court for possession or injunction normally prevents a person from invoking jurisdiction of the criminal Court as observed by this Court in Ram Sumer Puri Mahant V. State of U.P., AIR 1985 SC 472,'particularly when possession is being examined by the civil Court and parties are in a position to approach the civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. The normal rule is as stated by the Court in Puri's case. But that was a suit based on title. And that could be decided by civil Court only. That ratio cannot apply where there is no dispute about title. When claim or title are not in dispute and the parties on their own showing are co-owners and there is no partition one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. Where the dispute is not on the right to possession but on the question of possession the Crl. Rev. No. 210 of 2006 4 Magistrate is empowered to take cognizance under Section 145, Cr.P.C. Neither the High Court nor the Sub Divisional Magistrate cared to ascertain if the respondent had any claim to lawfully prevent the appellant from entering into his own house. The proceedings under Section 107 are for public peace and tranquility whereas under Section 145 relates to disputes regarding possession between parties concerning any land or water or boundaries thereof. Therefore, dropping of proceedings under Section 107 could not furnish foundation for dropping the proceedings under Section 145. Nor the law laid down in Puri's case could result in rejecting the application filed under Section 145 of the Cr.P.C. There being no dispute of title between the appellant and respondent the only claim to the decided was if the appellant had been forcibly or wrongly dispossessed within two months next before the date on which the information was received by the Magistrate and the High Court instead of deciding this crucial aspect, failed to exercise its jurisdiction as the appellant had sought the remedy of civil suit without applying the mind if that decision was in any way helpful for dropping the proceedings. In law, therefore, the order passed by two Courts below cannot be maintained.” From the above extracted portion, it transpires that the Hon'ble Supreme Court has held that when claim or title are not in dispute and the parties of their own showing are co-owners and there is no partition, one Crl. Rev. No. 210 of 2006 5 cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. Where the dispute is not on the right of possession but on the question of possession, the Magistrate is empowered to take cognizance under Section 145 Cr.P.C. While the proceedings under Section 107 Cr.P.C. are for public peace and tranquility, Section 145 Cr.P.C. relates to disputes regarding possession between parties concerning any land or water or boundaries thereof. There being no dispute of title between the parties, the only claim to be decided would be if one of the parties had been forcibly or wrongly dispossessed within two months next before the date on which the information was received by the Magistrate. In my considered opinion, taking a cue from the judgment rendered by the Hon'ble Supreme Court of India in Prakash Chand Sachdeva's case (supra), portion of which has been reporoduced above, even in a case where both the parties to the lis under Section 145 Cr.P.C. are co- sharers, the Magistrate is empowered to see if one of the parties has been forcibly or wrongly dispossed within two months next before the date on which the information was received by the Magistrate. In a case of co- sharers, the title is not the dispute. Dispute can be in regard to possession in the absence of partition. In such a case, dispute is not on the right to possession but on the question of possession. If one party is in possession of a portion of property/property as a co-sharer, the other co-sharer cannot be permitted to act forcibly and unlawfully. In such circumstances, Magistrate is empowered to take cognizance under Section 145 Cr.P.C. In the light of the above, the impugned order is upheld and the Crl. Rev. No. 210 of 2006 6 petition is dismissed. The SDM is directed to ensure expeditious disposal of the matter. 11.01.2010 (AJAI LAMBA) shivani JUDGE 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the Digest?