IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 496 of 2009 Paltu Ram. ………. Applicant Versus Kirtha ..…. Respondent Present : Sri Sharad Sharma, Sr. Advocate assisted by Sri J.S. Bisht, Advocate for the applicant. Sri Siddhartha Singh, Advocate for the respondent Dated : 29th August, 2011 Hon’ble Servesh Kumar Gupta, J. The challenge, by way of this Criminal Misc. Application, is to the order dated 10.07.2009 passed by officiating Sessions Judge, Haridwar in Criminal Revision No. 209 of 2009 and it has been prayed that the said order along with entire proceedings of the said revision be quashed. 2. The background facts qua controversy are that a piece of land bearing Khasra No. 507 admeasuring 0.1707 hectares situated in village Salempur Mahdood Pratham, Pargana Roorkee, District Haridwar was owned by tenure holders Sri Satish and Sri Kunwar Pal, sons of Sri Om Prakash and Smt. Kailasho, wife of Sri Om Prakash, resident of village Roshnabad, Pargana Roorkee, District Haridwar. The said land was sold to Shri Rati Ram, father of Sri Paltu Ram (petitioner) through a sale deed dated 28.12.2005 but on the basis of that sale deed no entry in the revenue records could be made soon after and meanwhile, the tenure holders named above executed another sale deed of the same land on dated 30.01.2006 in 2 favour of respondent Sri Kirtha. Sri Kirtha filed a mutation case no. 282 of 2006 and got his named mutated on 17.03.2006 in the relevant revenue records. When this fact came into the notice of Sri Rati Ram (previous purchaser of the land), he raised an objection before the Tehsildar concerned and the order of the mutation dated 17.03.2006 was recalled by the Revenue Authorities on dated 04.04.2007. Sri Rati Ram filed a separate case no. 188 of 2006 for mutating his name on the piece of land and the same was allowed on 02.06.2007. Thus, the name of Sri Rati Ram, father of Sri Paltu Ram, was mutated on the said land in the revenue records. 3. It appears that Sri Kirtha filed another mutation case no. 288 of 2006 but the same was dismissed. Thus, the fact remains that Sri Paltu Ram, son of Sri Rati Ram, is the owner of the land, in dispute, on the strength of earlier sale deed dated 28.12.2005. It transpires from the controversy between the parties that Sri Kirtha occupied the land, in dispute, on the strength of sale deed dated 30.01.2006 got executed by him from the tenure holders so a dispute regarding the possession over the land cropped up and a case no. 2 of 2009 was registered by Sub Divisional Magistrate, Haridwar under section 145 Cr.P.C. on the application of Sri Paltu Ram. The Sub Divisional Magistrate, Haridwar asked a report from the police station Ranipur. The inquiry was conducted by a Head Constable, Police Sri Rajendra Prasad. The report was submitted on dated 18.06.2009 wherein it was divulged that there is a tension between both the parties claiming their respective possession over the land but in fact the land, in dispute, is in possession of Sri Kirtha. 3 4. The Sub Divisional Magistrate issued notices under section 145 Cr.P.C. to both the parties, asking them to appear in the court on 09.07.2009 and produce their respective evidence regarding their possession over the land. The Sub Divisional Magistrate, Haridwar on 26.06.2009 expressed his view that he was unable to decide as to which party is in possession, so he directed the Inspector In-charge, Kotwali Ranipur, for attachment of the land, in question. This order of Sub Divisional Magistrate dated 26.06.2009 directing the Inspector, Police for attachment of the land, in question, was challenged by Sri Kirtha in Criminal Revision No. 209 of 2009 and the learned officiating Sessions Judge, Haridwar passed an order of abeyance to the direction of the attachment issued by Sub Divisional Magistrate, Haridwar. The learned Sessions Judge did not assign any reason in the impugned order except that the Sub Divisional Magistrate, Haridwar has fixed 09.07.2009 for hearing of the parties but has passed order of attachment on 26.06.2009 without hearing of the parties. This order has been challenged by way of this Criminal Misc. Application under section 482 Cr.P.C. 5. Having heard both the parties, it also comes out that a Civil Suit No. 62 of 2007 was filed by Sri Rati Ram, father of Sri Paltu Ram, against Sri Kirtha asking a relief of permanent injunction to restrain Sri Kirtha from interfering in the possession of Sri Rati Ram as well as restraining him from raising illegal construction thereupon. This suit was filed in the court of Civil Judge (Junior Division), Haridwar on dated 01.02.2007 but after filing of the suit, Sri Rati Ram died before its adjudication. During the life time of Rati Ram, the Court sent its Amin for spot inspection and the Amin in his report 4 dated 22.05.2009 verified the possession of Sri Kirtha over the land. During the life time of Rati Ram, on 14.03.2007 he moved an amendment application under Order VI Rule 17 of CPC stating that Sri Kirtha on the strength of his muscle power had made an adverse possession over the land and started construction thereupon, so he converted the relief, seeking for the removal of the illegal construction made by Sri Kirtha nay the mandatory injunction for recovery of the possession over the land. This amendment application moved by Sri Rati Ram is enough to show that land, in question, is in possession of Sri Kirtha, notwithstanding the legality or illegality of the nature of his possession is to be determined by the Civil Court. 6. Learned counsel for Sri Kirtha has submitted his argument that proceedings of the civil suit no. 62 of 2007 has attained finality because the suit has been abated due to death of Sri Rati Ram and the substitution application moved by Sri Paltu Ram to fight that suit ahead has been rejected by the court on dated 29.05.2009, this way, he argued that the proceedings in the civil suit no. 62 of 2007 have now attained finality and in such a situation proceedings under section 145 Cr.P.C. cannot be allowed to sustain. He relied upon a judgment of the Hon’ble Apex Court passed in Kunjbihari Vs. Balram and others reported in (2006) 11 SCC 66. In that case where the rights of the parties in respect of the property, in question, settled by a compromise decree passed by a civil court during the pendency of the civil proceedings, then it will be deemed that the civil proceedings had achieved finality and the proceedings under section 145 Cr.P.C. then cannot be initiated. Initiation of such proceedings under section 145 Cr.P.C. is abuse of the process of the court. 5 7. Having gone through the ratio, as held by the Hon’ble Apex Court in the case cited by the learned counsel for the respondent, this court is unable to agree on the fact that proceedings in O.S. No. 62 of 2007 have attained finality because the substitution application filed by Sri Paltu Ram was rejected not on merit but only for the technical reason and it was that no consequential amendment was sought in the said application. This court is of the view that still there is a scope open for Sri Paltu Ram to move another application, if it is rejected by the Civil Court, then the course open to him, to go to the higher court and get his rights including the title, adjudicated by the competent court of civil jurisdiction. This way, this court holds that rights of the parties in the civil litigation have not attained finality. Undoubtedly, the property, in question, is in the possession of Sri Kirtha so there is no probability of breach of peace at the spot and the proceedings under section 145 Cr.P.C. pending before Sub Divisional Magistrate are of no avail. It is all the more for the reason that Paltu Ram can not be allowed to snatch possession of the property in question forcibly all the same having first sale deed in his favour nay the recording his name in the relevant revenue papers. With the above observation, no purpose is likely to be achieved by quashing the order of learned Sessions Judge of dated 10.07.2009 but the fact remains that the question of legal ownership over the land, in question, is still to be adjudicated by the civil court. 8. With the above observation, this petition is liable to be dismissed. Accordingly, the petition is dismissed. (Servesh Kumar Gupta, J.) 29.08.2011 SKS