Chand Sachdeva Vs. State  INSC 526 (14 December 1993)
R.M. (J) SAHAI, R.M. (J) PANDIAN, S.R. (J) CITATION:
1994 AIR 1436 1994 SCC (1) 471 1993 SCALE (4)657
Judgment of the Court was delivered by R.M. SAHAI, J.- Ingratitude of a son,
compelled his father, the appellant, a retired Assistant Engineer aged 77 years
to knock the doors of the courts, both civil and criminal, to enter into
possession of his own house. As if this by itself was not sufficient, the respondent-son
in the affidavit filed in this Court, has accused his father of 'abusing
process of Court' on 'false and fabricated allegations'. He has even taken the
plea that his father was 'trying to overawe him' and instead of seeking
partition of the property as it was ancestral and he was co-owner of it, he was
arose about an independent portion in House No. G-39, Jangpura Extension, New Delhi. It was in occupation of a tenant
who admittedly vacated in February 1992. The appellant claims to have occupied
it. The claim is supported by a letter written by the tenant to the appellant
on April 14, 1992 to the following effect:
have vacated your Ground Floor Flat at G- 39, Jangpura Extn. today and
possession of the same was handed over to your goodself.
issue me a no dues certificate at the earliest.
you and with regards," The authenticity of the letter is not disputed. But
its effect had been attempted to be diluted by the respondent by claiming that
it was written to harm him as he got the house vacated. The respondent claims
that the appellant never resided in the house in dispute. May be so. Why the
appellant who was residing in another House No. 15/239, New Moti Nagar of his
own with family of his other son, who died, decided to shift to the house in
dispute, is immaterial. An owner of the house could at his option reside at his
one or the other house. Even if it is assumed that the disputed house is ancestral
the appellant was not required to explain the reason for his decision to come
and live in it. His right to reside could not be disputed. But no sooner he came
the problem started. And according to the appellant his report to the police
for misbehaviour of his son and his family members went unheeded. That the father
had to approach the police authorities against his own son is indeed painful.
But that speaks volumes about the son.
inaction of the police on which reliance was placed by the son is explainable
but not understandable. It does not help the respondent. It only adds to the
helplessness of the appellant. In June 1992 it is alleged when he and his wife
went to Jaipur to see their ailing daughter, they to their shock, on return
after four days, found that their belongings had been removed, the portion had
been locked and they were treated harshly and abusively. And that too by his
family members. What must have been his feeling is not easy to comprehend but
as said by Shakespeare in King Lear, '[h]ow sharper than a serpent's tooth it
is to have a thankless child'. Failing to understand the 'cause in Nature that
make these hard hearts', the appellant approached the criminal 474 court by way
of proceedings under Sections 107 and 145 Criminal Procedure Code. He also
filed a civil suit for injunction in which status quo order was granted. But
status quo of what? He had already been thrown out of possession. It is not
necessary to comment on the merits of these proceedings. However, proceedings
under Section 107 were dropped, and in our opinion rightly, as the nature of
these proceedings 'are of preventive justice' as held by this Court in Madhu Limaye
v. Sub-Divisional Magistrate, Monghyr1. It is to be invoked when any person is
likely to commit a breach of peace or disturb public tranquility. But the order
dropping the proceedings under Section 107 led the Sub-Divisional Magistrate to
drop the proceedings under Section 145 CrPC as the proceedings under Section
107 having been dropped there was no apprehension of breach of peace.
High Court while agreeing with this reasoning added that the appellant having
sought civil remedy the proceedings under Section 145 could not be continued.
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.2 '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 case2. 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.
the dispute is not on the right to possession but on the question of possession
the Magistrate is empowered to take cognizance under Section 145 CrPC. 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 those under Section 145 relate 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
case2 could result in rejecting the application filed under Section 145 of the CrPC.
There being no dispute of title between the appellant and respondent the only
claim to be 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 1 (1970) 3 SCC 746: AIR 1971 SC 2486 2 (1985) 1 SCC 427 :
1985 SCC (Cri) 98 : AIR 1985 SC 472 475 Magistrate and the High Court instead
of deciding this crucial aspect, failed to exercise its jurisdiction as the
appellant had sought the remedy in 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 the two courts below cannot be maintained.
equity and justice the appellant has still stronger case. On own showing of the
respondent the property is ancestral. The behaviour of the son is cruel and
learned counsel for the respondent during arguments stated that the son was
willing to keep his father with him.
charitably disposed son the respondent appears to be.
willing to permit the father to live with him but not agreeable to permit him
to occupy a separate portion which was in his possession. In the light of the
averments made by the son in the affidavit filed in this Court and the alleged misbehaviour
by him and his family members this appears to be only an excuse for preventing
the father from living in peace in the end of his life.
the circumstances we allow this appeal, set aside the order passed by the High
Court and the Magistrate dismissing the application filed under Section 145 CrPC
and direct that the appellant shall be placed in possession of the green
portion forthwith, shown in the map filed by the appellant the correctness of
which was not disputed even if third party interest had been created with the
help of the police, if necessary. We hope that the respondent shall not create
any further hindrance in peaceful living of his father. The map filed by the
appellant is made a part of this order. Any observation that has been made
shall not be taken as binding in any civil dispute between parties.