Chattisgarh High Court

Harichandan Patel vs Setcharan Patel on 20 February, 2023

                                        1

                                                                          AFR

             HIGH COURT OF CHHATTISGARH, BILASPUR

                            CRMP No.1470 of 2021

   1. Harichandan Patel S/o Late Damodar Patel Aged About 63 Years R/o
      Village Jampali (Gorra), Tahsil And District Raigarh Chhattisgarh,
      Presently R/o Village Tarkela, Tahsil And District Raigarh Chhattisgarh

                                                                ---- Petitioner

                                     Versus

   1. Setcharan Patel S/o Late Damodar Patel Aged About 53 Years R/o
      Village Jampali (Gorra), Tahsil And District Raigarh Chhattisgarh

   2. The State Of Chhattisgarh Through The District Magistrate, Raigarh,
      District Raigarh Chhattisgarh

                                                               ---- Respondent



For Petitioner            : Shri Roop Naik, Advocate.
For Respondent No.1       : Shri Rajeev Shrivastava, Sr. Advocate with Shri
                            Dhani Ram Patel, Advocate.
For Respondent No.2.      : Ms. M. Asha, Panel Lawyer.


                    Hon'ble Shri Deepak Kumar Tiwari, J

                                Order On Board

20/02/2023 :

   1.   Being aggrieved by the order dated 6.12.2021 passed in Criminal

        Revision No.81/2021 by the learned Sessions Judge, Raigarh quashing

        the order passed by the Sub Divisional Magistrate under Sections 145

        and 146 of the CrPC dated 28th October, 2021 in Misc. Criminal Case

        No.29/2021, the present petition has been preferred.

   2.   Facts

of the case are that the petitioner and respondent No.1 are real

brothers. Father of petitioner and respondent No.1 namely, late

Damodar Patel was in possession of ancestral property bearing Khasra

No.76, total area 8.759 hectares situated at village Jampali, PH No.2,

Tehsil and District Raigarh. Father of the petitioner had executed a

registered sale deed in favour of respondent No.1 for about 10 acres of

land and also executed registered sale deed in favour of his grandson.

So, the petitioner had filed a civil suit for declaration and permanent

injunction and also to declare the aforesaid sale deed dated 23rd March,

2002 to be not binding upon the petitioner before the Civil Judge, Class-

2, Raigarh. On 16th July, 2002, the suit has been partly allowed and the

sale deed executed by late father of the petitioner namely, Damodar

Patel was held to be not binding on the petitioner. Late Damodar Patel

and respondent No.1 were also restrained from alienating the property

of Schedule A. Except some of the property mentioned in Schedule A,

B and C of the said suit was declared ancestral property. Against the

said finding, the petitioner has preferred First Appeal before the 1 st

Additional District Judge, Raigarh bearing Civil Appeal No.46-A/2012

and the learned First Appellate Court vide judgment dated 16 th April,

2014 affirmed the judgment and decree passed by the trial Court.

Thereafter the petitioner has challenged the same before this Court by

way of Second Appeal bearing SA No.253/2014, which is pending

consideration before this Court.

3. During the pendency of the said case, father of the petitioner and

respondent No.1 namely Damodar Patel had expired. As the property is

in the nature of ancestral property, so the petitioner and respondent No.1

have equal right. Therefore, with the consent of the parties, the matter

has been referred to the Lok Adalat which is scheduled to be held on

13th May, 2023 vide order dated 7.2.2023.

4. During the pendency of the aforesaid civil proceeding before the civil

Court and the High Court, on 31st August, 2021, the petitioner had

moved an application under Section 145 of the CrPC before the

concerned SDM against respondent No.1 wherein after obtaining report

from the concerned Police Station, the learned Magistrate has passed

the preliminary order on 28th August, 2021. The said order was

challenged by respondent No.1 before the Sessions Judge, Raigarh and

by the impugned order dated 6th December, 2021, the Revisional Court

quashed the order passed by the SDM. Hence this petition.

5. Learned counsel for the petitioner submits that as the petitioner has not

filed any suit for declaration of title and possession and his suit was for

declaration and permanent injunction, pendency of the said civil

litigation would not affect parallel proceeding under Section 145 of the

CrPC. As the entire property is ancestral property and some of the

property has been sold by the father of petitioner in an unauthorized

manner in favour of his brother and son of his brother, though as a

family settlement, the petitioner and respondent No.1 are cultivating the

land in peaceful manner.

6. Upon being asked by the Court, learned counsel for the petitioner

submits that there are sisters also of the petitioners but in the said suit,

they have not been impleaded as party. He further submits that during

pendency of the case, father of the petitioner had expired, so daughters

of late Damodar Patel have been brought on record being LRs of late

Damodar Patel. Learned counsel would refer to paras-299 and 301

of the judgment rendered by the Hon'ble Supreme Court in the matter

of M. Siddiq (Dead) through legal representatives (RAM

JANMABHUMI TEMPLE CASE) Vs. Mahant Suresh Das and

others {(2020) 1 SCC 1}.

7. On the other hand, Shri Shrivastava, learned Senior Counsel appearing

on behalf of respondent No.1 would submit that when the matter is

pending before the civil Court, then only the Civil Court has jurisdiction

to pass orders of injunction and the parties having failed to obtain the

order of injunction from the civil Court, they could not have invoked

the proceeding under Section 145 of the CrPC. The said proposition is

well settled in the matter of Ram Sumer Puri Mahant Vs. State of UP

and Others {(1985) 1 SCC 427} and it has been reiterated by the

Constitution Bench in the matter of M. Siddiq (Supra). He submits

that the revisional Court has rightly quashed the order passed by the

SDM, which is well merited and does not call for any interference.

8. Heard learned counsel for the parties at length and perused the

documents annexed with the petition with utmost circumspection.

9. In the matter of M. Siddiq (Supra), the question relating to scope of

Section 145 of the CrPC when the civil suit is pending came for

consideration, which is no longer res integra, having already dealt with

by the Constitution Bench and the following was held at paras 299.1,

299.2, 300 & 304:-

"299.1 In Amresh Tiwari v Lalta Prasad Dubey {(2004) 4 SCC 440}, Justice S N Variava, speaking for a three judge Bench of this Court held thus {SCC P.445, Para-12}

12... The law on this subject-matter has been settled by

the decision of this Court in the case of Ram Sumer Puri Mahant v. State of U.P. [(1985) 1 SCC 427 : 1985 SCC Cri 98] In this case it has been held as follows:

(SCC pp. 428-29, para 2)

2..... When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the civil court is binding on the criminal court in a matter like the one before us...parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, the criminal court should not be allowed to invoke its jurisdiction 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. We are, therefore, satisfied that parallel proceedings should not continue."

299.2 The Court in Amresh Tiwari (Amresh Tiwari Vs. Lalta Prasad Dubey, (2000) 4 SCC 440 : 2000 SCC (Cri) 806 rejected the submission that the principle in Ram Sumer Puri Mahant v State of UP {Ram Sumer Puri Mahant Vs. State of UP, (1985) 1 SCC 427 : 1985 SCC (Cri) 98} will apply only after the civil court has adjudicated on the issue: (SCC P.445, para-13)

13. We are unable to accept the submission that the principles laid down in Ram Sumer case [(1985) 1 SCC 427 : 1985 SCC (Cri) 98] would only apply if the civil court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumer case [(1985) 1 SCC 427 : 1985 SCC (Cri) 98] is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the civil court and parties are in a position to approach the civil court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue."

300. Dealing with the issue as to when the proceedings

under Section 145 should not be pursued any further on the institution of a suit for adjudication, this Court in Amresh Tiwari held: (SCC p.446, para-14)

14. Reliance has been placed on the case of Jhummamal v. State of M.P. [(1988) 4 SCC 452 : 1988 SCC (Cri) 974] It is submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings under Section 145 of the Criminal Procedure Code should be set at naught. In our view this authority does not lay down any such broad proposition. In this case the proceedings under Section 145 of the Criminal Procedure Code had resulted in a concluded order. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded order under Section 145 of the Criminal Procedure Code should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An order of status quo had already been passed by the competent civil court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram Sumer case [(1985) 1 SCC 427 : 1985 SCC (Cri) 98] fully applies. We clarify that we are not stating that in every case where a civil suit is filed, Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court that proceedings under Section 145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil court would be binding on the Magistrate.

(Emphasis supplied)

304. In view of the settled position in law, as it emerges from the decisions of this Court, after the Magistrate's order dated 29 December 1949 for attachment of property, nothing prevented Nirmohi Akhara from filing a declaratory suit for possession and title. The Magistrate's order did not decide or adjudicate upon the contesting rights to possess or the

merits of conflicting claims of any of the parties. Substantive rights with respect to title and possession of the property could have been dealt with only in civil proceedings before a civil court. The Magistrate did not have jurisdiction to determine questions of ownership and title. The proceedings under Section 145 could not have resulted in any adjudication upon title or possession of the rightful owner as that is within the exclusive domain of civil courts. Nirmohi Akhara cannot take the defence that no final order had been passed in Section 145 proceedings and as a result limitation did not commence. The Magistrate simply complied with the directions given by a civil court with respect to maintaining status quo in Suit 1 and accordingly, deferred the proceedings under Section

145."

10. It is admitted that the petitioner has already filed a civil suit on 16 th

April, 2002 in respect of the same property for which he has preferred

an application under Section 145 of the CrPC before the SDM, as the

relief regarding protection of property concerned can be applied and

granted by the civil Court.

11. So, this Court is of the view that continuation of the proceeding under

Section 145 of the CRPC should not be allowed to continue and the

order passed by the revisional Court is just and proper, which does not

call for any interference invoking jurisdiction under Section 482 of the

CRPC.

12. For the foregoing, the present petition being bereft of any substance