Singh Vs. Dalbir Singh & Ors  Insc 159 (20 March 2002)
Mohapatra & Brijesh Kumar D.P.Mohapatra,J.
appeal filed by the first party in the proceeding under Section 145, Criminal
Procedure Code (for short 'Cr.P.C.') is directed against the judgment dated
16.07.2001 of the High Court of Delhi in Criminal Revision No.540 of 2000. The
Revision Petition was filed by the second party, who is respondent no.1 herein,
under Section 397 read with Section 401, Cr.P.C. for setting aside the order
dated 14.11.2000 passed by the learned Magistrate under Section 146(1) of the Cr.P.C.
attaching the land in dispute. The High Court allowed the Revision Petition and
quashed the preliminary order passed by the learned Sub-Divisional Magistrate
under Section 145(1) as well as the order of attachment of the land under
Section 146(1) Cr.P.C. The operative portion of the judgment reads thus :
Court, therefore, is of the considered view that impugned orders under Section
145(1) of the Code as well as proceedings under Section 146(1) pf the Cr.P.C.
were an abuse of the process of law and as such cannot be sustained. The orders
passed by learned SDM under Section 145(1) dated 11.7.2000 as well as Section
146(1) dated 14.11.2000 are therefore quashed. The learned SDM is directed to
restore the possession of the land to the petitioner within 10 days as he was
in possession thereof at the time of the attachment. The Trial Court file be
sent back immediately." The factual matrix of the case over which there is
no dispute between the parties may be stated thus :
Singh, respondent no.1 herein, is the owner of the land in dispute measuring
about 40 bighas and 16 biswas situated in Mouza Chattarpur, Tehsil Mehrauli, New Delhi. He had given a registered Power of
Attorney in favour of his son-in-law, Karnail Singh in July, 1991. Karnail
Singh had executed sale deeds transferring the land in favour of M/s.Homestead
on account of which disputes arose between respondent no.1 on one side and Karnail
Singh and M/s.Homestead, on the other side. Respondent no.1 filed the suit,
Original Suit No.2830/91 (renumbered as 389/93) seeking a decree of permanent
injunction against Karnail Singh and M/s.Homestead. The said suit was dismissed
as withdrawn by the order of the trial Court dated 29.4.1994. The order was
passed on the statement made by the parties that they had amicably settled the
dispute relating to the suit property. Thereafter, M/s.Homestead transferred
the land in dispute in favour of Ranbir Singh, the appellant herein, under the
registered sale deed dated 20.8.1996. The property was mutated in the name of
the purchaser. Subsequently, on a petition filed by respondent no.1 on
18.10.1996 the order dismissing the suit as withdrawn was recalled and suit No.2830/91
(renumbered as 389/92) was restored to file. The said order having not been
challenged by any party has attained finality.
23.6.1997, the appellant filed the suit, O.S.No.300/97 praying for a decree of
permanent injunction against respondent no.1. On the same day, an order of ad
interim injunction was passed in the suit.
matter stood thus the appellant filed the petition dated 17.9.1997 before the
learned Sub-Divisional Magistrate seeking initiation of proceedings under
Section 145, alleging inter alia that immediately after the order of interim
injunction was passed by the Civil Court, respondent no.1 and his supporters
forcibly dispossessed him (the appellant); in the circumstances, there was an
apprehension of breach of peace. About three years after filing of the said
petition, the learned Sub-Divisional Magistrate passed the preliminary order
under Section 145(1) Cr.P.C. on 11.7.2000. This was followed by the order dated
14.11.2000 in which considering the application filed by the first party
(appellant) under Section 146(1), the land in dispute was attached and the
local S.D.P.O. was given charge of the property. The respondent no.1 filed an
application on 15.11.2000 praying for recall/modification of the preliminary
order passed by the learned Sub-Divisional Magistrate under Section 145(1) Cr.P.C.
The said application is stated to be pending for consideration before the
learned Sub- Divisional Magistrate. The respondent no.1 moved the High Court in
revision on 5.12.2000 by filing the application under Section 397 read with
Section 401 Cr.P.C. The Criminal Revision has been disposed of by the High
Court by the order dated 16.7.2001 in the manner noted earlier.
main thrust of the submissions made by Shri A.M.Singhvi, learned senior counsel
appearing for the appellant was that the High Court has approached the case as
if it was deciding an appeal. Elucidating the point, Shri A.M.Singhvi submitted
that if the High Court found certain lacunae in the preliminary order passed by
the learned Sub-Divisional Magistrate, it should have set aside the said order
and remitted the matter to the Magistrate for passing a fresh order in
accordance with law. The further contention of Shri A.M.Singhvi is that the
High Court has gone beyond the scope of Section 145 of the Code and has dealt
with the question of title and right to possession without paying due attention
to the undisputed factual position that the parties are before the Civil Court
in a suit which is pending and in that proceeding the Civil Court will
determine the question of possession and may incidentally go into the question
of title to the property also. According to Shri Singhvi in any view of the
case, the High Court was in error in directing the learned Sub-Divisional
Magistrate to restore possession of the land in dispute to the petitioner,
respondent no.1 herein.
contra, Shri S.C.Maheshwari, learned senior counsel appearing for respondent
no.1, contended that from the preliminary order passed by the learned
Sub-Divisional Magistrate it is clear that he has not stated grounds for his
satisfaction that there was apprehension of breach of peace relating to
possession of the property. Since the preliminary order did not comply with the
conditions prescribed in Section 145(1) the High Court rightly quashed the
same. The further contention of Shri Maheshwari was that since the order under
Section 145(1) is unsustainable in law, the order under Section 146(1) could
not have been allowed to continue.
no exception can be taken to the order of the High Court quashing the order
under Section 146(1),Cr.P.C. also. Shri Maheshwari further submitted that in
the meantime, the respondent no.1 has also filed a civil suit challenging the
validity of the sale deeds executed by Karnail Singh in favour of M/s.Homestead
and those executed by M/s.Homestead in favour of the appellant and the said
suit is pending.
perusal of the relevant papers on the record and on consideration of the
contentions raised by learned counsel for the parties, we are of the view that
in the context of the facts of this case, the order passed by the High Court
setting aside the order dated 11.7.2000 passed under Section 145(1) as well as
the order dated 14.11.2000 passed under Section 146(1) Cr.P.C. is unassailable.
the High Court was in error in dealing with the Revision Petition as if it was
exercising appellate jurisdiction. The High Court has dealt with the
developments in the case relating to the acquisition of title, the allegations
of fraudulent transfers made by Karnail Singh and M/s.Homestead and the
circumstances in which the suit was dismissed as withdrawn. Keeping in view the
limited scope of the proceeding under Section 145, Cr.P.C. these questions were
not material for determination of the main issues in the case. The Court, while
dealing with a proceeding under Section 145 Cr.P.C., is mainly concerned with
possession of the property in dispute on the date of the preliminary order and
dispossession, if any, within two months prior to that date; the Court is not
required to decide either title to the property or right of possession of the
same. The question for determination before the High Court in the present case
was one relating to the validity or otherwise of the preliminary order passed
by the learned Sub-Divisional Magistrate under Section 145(1) Cr.P.C. and
sustainability of the order of attachment passed under Section 146(1) Cr.P.C.
For deciding the questions it was neither necessary nor relevant for the High
Court to have considered the matters relating to title to and right of
possession of the property. Further, both the parties in the case have filed
suits seeking decree of permanent injunction against each other and in the suit
filed by the appellant an order of interim injunction has been passed and an
objection petition has been filed by respondent no.1. The suits and the interim
order are pending further consideration before the civil court.
these circumstances, we are of the view that while maintaining the order of the
High Court quashing the preliminary order passed by the Sub-Divisional
Magistrate under Section 145(1) and the order of attachment of the property
under Section 146(1) Cr.P.C., leave should be granted to the parties to
approach the civil court for appropriate interim order and the civil court
should deal with the application for interim order without being influenced by
the observations made/findings recorded by the High Court in the impugned
judgment. It is ordered accordingly.
order to enable the parties to approach the civil court for interim order and
with a view to avoid further complication in the matter, the interim order
passed by this Court on 18.01.2002 directing status quo regarding possession of
the property in dispute to be maintained shall remain in force for a period of
three weeks from today.
appeal is disposed of on the above terms.