CRM No. M 2168 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 2168 of 2009 Date of decision: 23.09.2010 Mahant Sher Singh Chela Mahant Jai Singh and others ........ Petitioner Versus Balkar Singh and another .......Respondent Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. S S Brar, Advocate for the petitioner Mr. Onkar Singh, Advocate for Advocate No. 1 Mr. K S Pannu, DAG, Punjab for the respondent State -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This is a petition under Section 482 of the Code of Criminal Procedure for quashing of complaint case No. 73/04 dated 11.02.2004 titled as Balkar Singh v. Sher Singh and others (Annexure P-1) under Section 148, 232, 342, 392, 435, 440, 452, 506 of Indian Penal Code read with Section 149 of IPC pending in the Court of Additional Chief Judicial Magistrate, Kurukshetra as well as the summoning order dated 15.09.2007 (Annexure P2). As per the complaint and the summoning order, the complainant was in possession of the nursery known as Love Kush Nursery CRM No. M 2168 of 2009 2 in Pipli and Sher Singh-Petitioner No. 1 who is claiming himself to be the owner of the same, had tried to dispose the respondent-complainant. Accordingly, the present complaint was filed against him stating therein that on 28.01.2004 afternoon, accused Sher Singh and other accused persons along with some strangers attacked on the complainant in the Nursery. Accused Nos. 1 to 4 were having kulharies in their hands while accused No. 5 was having his revolver at the time when they trespassed with criminal intention. After entering the Nursery accused Sher Singh caught hold of the complainant and accused No. 5 gave slap to the complainant. After that, accused Nos. 2, 3 and 4 tied the complainant with a Gulmor tree with a rope and all the accused deputed one stranger with Kulhari near the complainant. While seeking quashing of the said complaint and the summoning order, learned counsel for the petitioners submitted that the criminal proceeding suffers from mala fide which is nothing but a sheer abuse of process of law as the same is the counter blast to the civil suit filed by the petitioners for declaration and permanent injunction against the real brothers and father of Balkar Singh. In that suit, interim injunction had been granted to the petitioner No.1 regarding the same land over which the complainant himself was claiming to be in possession and running a Nursery in the capacity as a tenant. It was further contended that:- a) Balkar Singh-complainant was not in possession and thus, the question of dispossessing him does not arise. Balkar Singh had filed a civil suit seeking permanent injunction against petitioner No. 1 which was dismissed on 02.05.2008. The appeal against the said order was also dismissed. CRM No. M 2168 of 2009 3 b) Petitioner No. 1 was held to be in peaceful possession through an injunction issued by the Civil Court and on his request, directions was also given by the Court to the SHO, Police Station, Sadar Thanesar qua providing of help to petitioner-Mahant Sher Singh and therefore, Balkar Singh-complainant out of frustration had filed the present complaint against the present petitioners. Learned counsel for respondent No. 1, on the other hand, opposed the claim of the petitioners and stated that although it is correct that respondent No. 1 - Balkar Singh filed a civil suit for permanent injunction against the petitioner when the petitioner issued threats to him to oust him from Love Kush Nursery, later on, when the threats for ousting respondent No. 1 from the land in dispute disappeared, the suit was not proceeded against the petitioner. It is further submitted that complainant was in continuous and peaceful possession of the land in dispute for the last so many years. He is preparing the plants and selling the same since 2000 till today. To substantiate the point in issue some of the receipts, part of the record of complainant, issued by respondent Balkar Singh against the payment of sold plants have been attached. Moreover, though respondent No.1 was in possession in some part of the land comprised in khasra No. 429, he was not made party in the aforesaid suit filed by the petitioners for the reasons best known to him. Thus, when respondent No. 1 was not made the party in civil suit, he is not bound by its proceedings and outcome. Learned counsel for the parties are heard. While praying for quashing of the complaint as well as summoning order, learned counsel for the petitioners has relied on the order dated 11.02.2003 passed by the Civil Judge, Junior Division, Kurukshetra, CRM No. M 2168 of 2009 4 vide which, the respondents/defendants, in that suit, were restrained from interfering in the peaceful possession of the petitioners over the suit property. However, perusal of the said order shows that the present complainant/respondent No. 1 was not a party to the aforesaid suit. Learned counsel for the petitioner has further relied on the order dated 25.11.2003 passed by the Civil Judge, Jr. Division, directing the SHO, Police Station Sadar Thanesar to give necessary police help to Petitioner No. 1 to carry out its earlier order dated 11.02.2003. However, once again, the present complainant Balkar Singh was not a party to the said dispute. The third argument raised by learned counsel for the petitioners was that the suit filed by Balkar Singh against present petitioner No. 1 was dismissed, may also not be a conclusive proof of the fact that Balkar Singh was not in possession as the same was dismissed in default. Thus, the question of possession over the suit land is one of the issues, it is not within the jurisdiction of this Court to decide the disputed question of facts in the present proceedings. The same is a matter of evidence. Accordingly, the present petition is dismissed being devoid of merit. However, nothing said herein will have any bearing on the merit of the case. (Nirmaljit Kaur) Judge September 23, 2010 mohan