1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Cri. Writ Petition No.131/2010 1 Laxmanrao s/o Kishanrao Sampate, Age : 49 years, Occu. Agriculture, 2 Satish s/o Laxmanrao Sampate, Age : Major,Occu. Agriculture, 3 Sumanbai w/o Laxmanrao Sampate, Age : 44 years, Ocu. Household, 4 Tukaram s/o Laxmanrao Sampate, Age : 25 years, Occu. 5 Atmaram s/o Laxmanrao Sampate, Age : 22 years, Occu. All R/o Hipparsoga Tq. Ausa Dist. Latur. ..Petitioners. Vs. 1 Padamsing s/o Bhagwantrao Patil, Age : 35 years, Occu. Agriculture, 2 Dattasaheb s/o Bhagwantrao Patil, Age : 39 years, Occu. Agriculture, 3 Bhagwantrao Govindrao Patil, Age : 69 years, Ocu. Pensioner, All R/o Hipparsoga Tq. Ausa Dist. Latur. 4 Vyankatesh s/o Hanmantrao Deshpande, Age : 72 years, Occu. Advocate & Agriculture, R/o Hipparsoga Tq. Ausa Dist. Latur, At Present signal Camp, Latur, Tq & Dist. Latur. 5 The State of Maharashtra, (Copy to be served on P.P. In the High Court of Judicature of Bombay Bench at Aurangabad. ..Respondents. 2 Mr. C.R. Deshpande, Advocate for petitioners. Mr. V.D. Salunke, Advocate for respondents no.1 to 3. Mr. R.A. Adgaonkar, Advocate for respondent no.4. CORAM : A.V. NIRGUDE, J. Date : 22nd APRIL, 2010 ORAL JUDGMENT : - 1 This writ petition is filed against the judgment and order passed by the learned Sessions Judge, Latur in Cri. Revision Application No.127/2005. 2 The facts leading to this revision, can in short, be stated as under. The subject of this litigation is a land situated at village Hipparsoga Tq. Ausa Dist. Latur. It is a land ad measuring 4 acres and 20 gunthas. It is an agricultural land. There is no dispute that one Venkatesh was owner of this land. It is case of the petitioner Laxmanrao that Venkatesh agreed to sell this land to him by executing an agreement for sale on 21/06/2002. The petitioner further stated that on 09/05/2003, a fresh agreement for sale was executed and Venkatesh put him in possession of the land. Before the petitioner no.1 could get the sale deed executed from Venkatesh, Venkatesh surreptitiously sold the land to the respondent no.1, on 31/01/2005. In view of this, the petitioner filed 3 a civil suit on 18/03/2005 for specific performance of contract and for perpetual injunction. It seems, the respondent no.1 took up a stand that at the time of sale deed, he was put in possession of the disputed land by vendor. The petitioner filed an application for temporary injunction but the same was rejected on 30/04/2005. Even in the appeal filed against the said order, the petitioner could not get favourable order. 3 On 06/06/2005 the Police made a report to the Executive Magistrate under sub section (1) of Section 145 of Cr.P.C. stating that a dispute had arisen between the parties in respect of possession of the disputed land and such dispute was likely to cause breach of peace in the locality. The learned Executive Magistrate accepted the report and passed a preliminary order, under sub section (1) and directed parties to appear before him with their submissions. It seems thereafter, the learned Executive Magistrate passed an order to take over the possession of the property and to put it on auction for 'yearly cultivation'. Accordingly, the auction took place and a party came forward for cultivation of the land. Such party was put in possession. 4 The respondent no.1 challenged this action of the learned Executive Magistrate before the learned Sessions Judge, by filing a revision application. The learned Sessions Judge inter alia held 4 that the learned Executive Magistrate could not have taken cognizance of the report of the Police which they filed under sub section (1) of Section 145 of Cr.P.C. because the parties were already before civil court. The Court was seized of the matter and the Civil Court would have decided the question of the possession etc. This contention was accepted by the Ld. Judge of revisional court. Against this order of the revisional court, present writ petition is filed. 5 The learned advocate appearing for petitioner, inter alia contended that the learned judge of revisional court committed grave error in not directing the learned Executive Magistrate to hand over the possession of the land from whom he had taken the same while allowing the revision and terminating the proceedings u/s 145 Cr.P.C. In other words, Mr. Deshpande is suggesting that since the Executive Magistrate had taken possession of the land initially from his client – the petitioner-; when the proceedings are ordered to be terminated the learned judge of the revisional court should have taken care to restore the status quo ante, and should have directed Executive Magistrate to put the petitioner in possession of the land. The question is whether such order would have been lawful and appropriate. I am afraid, the answer is in 5 negative. 6 The learned Sessions Judge rightly placed reliance on the judgment of Supreme Court in the Case of Ram Sumer Puri Mahant Vs. State of Uttar Pradesh reported in AIR 1985 (SC) 472. The Supreme Court in unequivocal terms held that when a civil litigation is pending for the disputed property wherein the question of possession is involved and when such question is adjudicated, initiation of parallel criminal proceeding under section 145 of Cr.P.C. would not be justified. The Supreme Court clearly held that such parallel proceeding should not be permitted to continue. 7 In this case, when the proceeding was initiated in June 2005, the Civil Court as stated above, was already seized of the matter. The parties had made their submissions before the Civil Court. The parties inter alia contended and claimed that they are in possession of the disputed property and therefore, the civil court was in a position to decide even at that stage prima facie as to which of the parties, was in possession of the disputed land. In fact, the Civil Court held, while deciding the interim application seeking temporary injunction that the petitioner was not in possession of the disputed land. In this back ground, there was no possibility for the Executive Magistrate to take cognizance of the 6 report of the Police, filed under sub section (1) of Section 145 of Cr.P.C.. The learned Executive Magistrate should have rejected the report at least after he learnt that the parties were already before the Civil Court and the Civil Court would decide the question of possession. The Executive Magistrate could not have therefore,undertaken the disputed property and put it on auction for yearly cultivation. This action of the learned Executive Magistrate was patently illegal. 8 There is further development in respect of the Civil suit. I am told that Civil Court finally decided the suit and inter alia held that the petitioner could prove that Venkatesh had agreed to sell disputed land to him but the Civil Court held that the petitioner was not put in possession at the time of the agreement dated 31/01/2005. The Civil Court also held that the petitioner was not entitled to the relief of specific performance of contract. The Civil Court further held that it was the respondent no.1 who was put in possession, when he purchased the disputed land in March, 2005. The Civil Court thus partly decreed the suit and directed Venkatesh to refund earnest amount to the petitioner with interest. I am told that the petitioner has filed an appeal against this judgment. But the petitioner did not apply to the appellate court for an order of 7 temporary injunction or an order of mandatory temporary injunction seeking possession of the disputed land pending the appeal. All that he sought and secured from appellate Court, I am told is, to prevent the respondent no.1 from creating third party right in respect of disputed land. In view of this, Mr. Deshpande’s request and contention has no basis at all. He can not assert before this Court that the petitioner was in possession, until the Executive Magistrate took charge of the disputed property. Even otherwise, the Civil Court held that the petitioner was not put in possession of the disputed land when the agreement in his favour on 09/05/2003, was executed by the vendor. The petition should therefore, fail. The petition stands dismissed. [A.V. NIRGUDE, J.) tsk/ok