Punjab-Haryana High Court

Puran Singh vs Krishan And Ors on 10 January, 2025

Author: Sandeep Moudgil

Bench: Sandeep Moudgil

                                Neutral Citation No:=2025:PHHC:003105




  HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
                          ****
                   CRM-M-24739-2024
                  Reserved on 10.12.2024
                Pronounced on : 13.01.2025
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Puran Singh                                ... Petitioner

                                         VS.

Sri Krishan & Ors.                                    ... Respondents
                              ****
CORAM: HON'BLE MR.JUSTICE SANDEEP MOUDGIL
                              ****
Present: Mr. Gaurav Gupta, Advocate for the petitioner

          Mr. Rajesh Lamba, Advocate for the respondents
                               ****
Sandeep Moudgil, J.

(1). The petitioner has filed the instant petition under Section 482

CrPC for quashing of the order dated 02.04.2024 (Annexure P4) passed by

Addl. Sessions Judge, Faridabad; order dated 23.11.2023 (Annexure P2)

passed by SDM, Ballabgarh in case No.12/SDM dated 16.06.2023 under

Section 145 CrPC, Muja Fatehpur Billoch, Teshil Ballabgarh filed by

respondent No.1.

(2). Briefly stated that the petitioner along with other co-sharers are

stated to be the joint owner and in possession of agriculture land measuring

230 kanals, situated within the revenue estate of Village Fatehpur Billoch,

District Faridabad vide jamabandi for the year 2021- 22. The said land was

not partitioned by metes and bounds between the co-sharers, however, one of

the co-sharer namely Ranbir Singh illegally and unlawfully without getting

the land partitioned sold the land measuring 4 kanals out of above said land to

previous owner namely Smt. Sharmila Devi wife of Kapil Parashar without

knowledge and consent of petitioner and other co-sharers vide sale deed dated

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12.1.2017. The purchaser Sharmila Devi further sold the said 4 kanals land to

Lalta vide sale deed dated 15.11.2022, who alongwith her son Subhash and

Shrikrishan came to the said land and tried to take forcible possession of the

land. Thereafter, respondent No.1 namely Sri Krishan moved an application

against the petitioner and other 18 co-sharers to respondent No.2 who called

them in the police station and threatened to hand over the possession of the

land in question to Smt. Lalta and accordingly, respondent no.2 filed a DD

No.16 dated 15.6.2023 under section 145 Cr.P.C. before SDM, Ballabgarh

regarding attachment of the entire land measuring 230 kanals. On the said DD,

the SDM, Ballabgarh issued summons to the petitioner and other 18 co-

sharers without observing that both the sale deeds were executed only qua

land measuring 4 kanals but SHO of P.S. Sadar Ballabgarh in collusion with

Smt. Lalta, Smt. Sharmila, Subhash and Sri Krishan attached the entire land in

question.

(3). Learned counsel for the petitioner-revisionist averred that the

kalendra under section 145 Cr.P.C. was filed by respondent No.2 against the

petitioner alleging that he has breached the peace, however, no such evidence

has been placed by the respondents in this regard. He submits that the

petitioner-revisionist is a co-sharer over the disputed land which is still in joint

possession and no partition has ever taken place by metes and bounds and

despite that one of the co-sharer Ranvir executed a sale deed in favour of

Sharmila wife of Kapil Parashar vide Annexure R-2, without the knowledge

and consent of the petitioner and other co-owners of the disputed land and

even thereafter, Sharmila has further sold the disputed land measuring 4

kanals to Smt. Lalta vide Annexure R-3. He then submits that co-sharer

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Ranbir has given a specific possession by way of above mentioned sale deed

whereas he cannot do so unless the partition of land takes place. He urged that

the concerned Patwari has also conducted the demarcation and proved the

possession of the petitioner.

(4). It is vehemently contended that the petitioner is in continuous

cultivating possession over the disputed land and son of Lalta namely Subhash

and Sri Krishan are illegally trying to take the forceful possession of the said

land in collusion with the police and they have managed to lodge false FIR

against his sons in order to harass the petitioner. He submits that the land in

dispute cannot be interfered with in view of the fact that a complaint to the

police along with a civil suit against the sale deeds dated 12.1.2017 and

15.11.2022 respectively are still pending.

(5). Another argument raised on behalf of the petitioner is that the

total land is measuring 230 kanals and the dispute is regarding 4 kanals only

whereas the SDM Ballabgarh vide impugned order has attached the entire

land illegally and arbitrarily while recording an absolutely contradictory

finding which shows that the SDM, Ballabgarh as well as the revisional Court

have passed the impugned orders without application of judicial mind and

hence liable to be set at naught.

(6). On the other hand, learned counsel for the respondent has filed

reply stating that co-sharer Ranbir initially entered into the agreement to sell

dated 10.02.2015 with regard to land measuring 5 kanals 18 marlas comprised

in Mu.No.81 Kill No.7/1(5-18) with Kapil Parashar but later reneged on

registering the sale deed. A panchayat was convened on 14.08.2016, where

Ranbir cited family disputes as the reason for not executing the sale deed and

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promised to repay the agreed amount within three months or execute the sale

deed as instructed by Kapil Parashar. The petitioner also attended and thumb

marked the writing of 14.08.2016 of the panchayat settlements. He further

submits that subsequently on an application dated 18.11.2016 at the instance

of Kapil, demarcation was conducted of the aforesaid land and the petitioner

participated in the demarcation on 03.12.2016 and thereafter again on

18.12.2016, it was settled between the parties that the agreement will be for 4

kanals and not 5 kanals 18 marlas.

(7). It is then averred that at every stage all the co-sharer knew as to

what has been agreed to be sold by Ranbir and since Ranbir failed to repay the

advance amount, subsequently, he executed sale deed in favor of Sharmila,

transferring possession to her vide sale deed (Annexure P5) and thereafter,

Sharmila, fenced the boundaries of the disputed land and remained in

possession and later, Sharmila sold the 4-kanal land to Smt. Lalta, handing

over possession, to her and she has since been in settled possession. He has

placed on record photographs of the above land at present as Annexures R-

1/6, R-1/7 and R-1/8 which shows that the disputed land has been fenced with

barbed wire.

(8). Heard learned counsel for the parties and gone through the

record.

(9). A Kalendra/complaint under Section 145 CrPC was filed by Shri

Krishan - respondent No.1 with a prayer that the petitioner and 18 other co-

sharers be stopped from forcibly occupying his land and his life and property

be protected alleging that the land situated in Mauza Fatehpur Billoch, Tehsil

Ballabgarh, as per its details given in para 1 of the the impugned order, total

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rakba 230 kanal and out of total land, 4 kanal land has been sold by Ranbir

Singh s/o Dharma to Mrs. Sharmila Devi w/o Kapil Parashar, the

measurement of which was as per the application given by the buyer and the

seller. Vide impugned order dated 23.11.2023, the SDM came to the

conclusion that since the fencing was done by Mrs. Sharmila (buyer) through

wires, it is proved that the respondent No.1-plaintiff and her mother Smt.

Lalta w/o late Keval Ram has legal possession since 15.11.2022 on 4 kanal

northern part of the land out of 5 kanal 18 marlas of Killa No.07/1. The SDM,

therefore, ordered the police to hand over the possession along with the crop

amount to the respondent No.1-plaintiff and restrain the petitioner-defendants

from interfering in respondent No.1's absolute possession which was affirmed

by the revisional court also.

(10). A perusal of the SDM's order would also reveal that in the

investigation done by the police on the application submitted by respondent

No.1, it has been found and rather admitted that there has been no division or

partition of the total land measuring 230 kanals and the land is dada lai i.e.

ancestral in nature of all the other shareholders and that both the parties claim

to be in possession of the disputed land whereas no one's possession over the

land in dispute has been proved and the respondent No.1/applicant has

concealed the material and actual facts in its application.

(11). From the records, it also transpires that no report had been

transmitted by SHO, Police Station Sadar, Ballabgarh to the SDM that there

was any apprehension of breach of peace but rather the SDM himself directed

the police for taking action under Sections 145 and attached the property

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under Section 146(1) CrPC on the basis of the application/complaint of

respondent No.1, which is against the provisions of law.

(12). It is also the case of the petitioner that he had also filed a civil

suit titled "Puran Singh vs. Lalta & Ors." in 2023 (Annexure P1) for

declaring the sale deeds entered into by Ranbir s/o Dharma as the sale of land

measuring 4 kanals out of agricultural land forming part of Rect. No.81, Killa

No.7/1(5-18) Min North, has been done by Ranbir without getting the suit

land partitioned by metes and bounds. This fact was very much in the

knowledge of the SDM as well as the revisional court and despite that they

went on to exercise powers under Section 145 & 146 CrPC and ordered

attachment of the property without fulfilling the pre-requisites for invocation

of such powers.

(13). It is trite that in respect of land in joint possession of parties, a

dispute under Section 145 cannot be raised. Unless there is a partition by

metes and bounds, any member of a joint family, who is in separate

possession of any part of the joint family property, can only be in possession

thereof, on behalf of the other members of the joint family and no member of

a joint family can claim or sell any part of the joint family property

exclusively for himself, because every member of the joint family has a right

in the property, though some portion thereof, may be in possession of one of

the members of the joint family. In a proceeding under Section 145 CrPC, the

dispute must be between parties, each of whom claims exclusive possession of

the property in dispute and where the dispute is with regard to property in

joint possession of parties, a proceeding under Section 145 of the Code cannot

be initiated.

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(14). Where the disputed property is in joint possession of both parties

to the proceeding, it would be open for this Court to rescind the order passed

by the trial Court relegating the parties to the same position in which they

were prior to the commencement of the proceeding under Section 145 CrPC

but the disputed property may be attached under Section 146 CrPC.

(15). The question whether when owners or co-sharers are fighting

and there is a likelihood of a breach of the peace between them, can the

Magistrate pass an order under Section 146 CrPC or not was considered by

the Allahabad High Court way back in the year 1932 in case Chiranji Lal v.

Mahadeo Prasad, AIR 1932 AH 683, wherein while referring to Section 146

CrPC and the expression "unable to satisfy himself as to which of them was in

possession" occurring in Section 146, the High Court held that if there are two

joint owners in possession jointly, it is a case where the Magistrate cannot

decide which of them was in exclusive possession. The relevant portion of the

judgment is reproduced as under:-

"...The question is whether when two joint owners are fighting and there is a likelihood of a breach of the peace between (them a Magistrate is entitled to pass an order under Section 146, Criminal P.C., or I not. The property in the present case is barren land in an urban area and possession can only be exercised by actual physical possession. The wording of Section 146(1) is:

If the Magistrate decides that none of the parties was then in such possession or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute he may attach it until a competent Court has

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determined the rights of the parties thereto and the person entitled to possession thereof.

3. Do the words "unable to satisfy himself as to which of them was in possession" cover the case of two joint owners both in joint possession or do they not? I consider that these words do cover that case and that if there are two joint owners in possession jointly, it is a case where the Magistrate cannot decide which of them was in exclusive possession. Learned Counsel then argued that such a case of joint possession would not come under Ch. 12 at all or that the Court should take security under S. 107, Criminal P.C. But the wording of Section 145(1) is:

...that a dispute likely to cause a breach of the peace exists concerning any land.

4. The section does not defend the land as being land in the possession of one party or another but merely that it is land and that there is a dispute and that dispute is likely to cause a breach of the peace. All these elements exist in the present case where there is land and there is a dispute and the dispute is likely to cause a breach of the peace. The fact that the land is admittedly in joint possession of the parties merely in my opinion makes it unnecessary to prodace evidence as to it being in the exclusive possession of one party, that is, if it is admittedly in possession of both parties. In any case the finding is apparently that it is in possession of both parties and it is on that account that the Magistrate has ordered a partition to be obtained from the civil Court."

(16). It thus culls out that Section 145 CrPC allows an Executive

Magistrate to intervene when a dispute over land or water is likely to cause a

breach of peace. The primary focus of this provision is to determine who is in

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actual possession of the property at the time the proceedings are initiated,

rather than resolving issues of title or ownership, which are reserved for civil

courts.

(17). A suit or remedy in civil court for possession or injunction

normally prevents a person from invoking jurisdiction of the criminal court

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. When claim or title is 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. Where 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. This view of mine is reinforced from the decision of

the Apex Court in "Prakash Chand Sachdeva Vs. State" (1994) 1 SCC 471.

(18). In Mohd. Abid vs. Ravi Naresh, 2022 LiveLaw SC 921, the

Supreme Court held that inter se rights of the parties under litigation regarding

title or possession are eventually to be determined by the Civil Court and

when a civil court takes cognizance of a matter, any concurrent proceedings

under Section 145/146 of the CrPC must necessarily come to a halt, as the

civil court has the exclusive jurisdiction to finally determine the parties' rights

and interests in the disputed property. The relevant portion of the said

judgment reads as under:-





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CRM-M-24739-2024                                                         - 10 -

"3. While the petitioners claim that they have purchased the subject property by way of four consecutive registered Sale Deeds dated 05.10.2020, the case of the respondents is that the suit property was purchased by their predecessors-in-interest way back on 16.11.1949 by way of a valid Sale Deed.

4. It is, however, an admitted fact that the petitioners have already filed a suit for injunction in which ex-parte adinterim injunction has been granted by the Civil Court, Faizabad, Uttar Pradesh on 05.12.2020. Once the Civil Court is seized of the matter, it goes without saying that the proceedings under Section 145/146 Cr.P.C. cannot proceed and must come to an end. The interse rights of the parties regarding title or possession are eventually to be determined by the Civil Court."

(19). The dispute in relation to ownership and possession of the

dispute land sans partition proceedings could be obtained through the civil

court itself and the Magistrate has no jurisdiction to entertain the petition

under Section 145 of CrPC inasmuch as it is the civil court who is competent

to decide the question of title as well as possession between the parties and the

order/injunction so passed would be binding on the Magistrate as well.

Reference can be made to Amresh Tiwari v. Lalta Prasad Dubey, 2000 SCC

OnLine SC 718, the relevant extract thereof, is reproduced as under:-

"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. Counsel for Respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, the

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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...."

(20). In the present case, firstly, the sale of a piece of disputed land by

Ranbir to any person itself is bad in the eyes of law, for, if the disputed

property was indeed a dadi lai or Joint Hindu Family ancestral property, a

specific piece of land could not be alienated by a coparcener or co-sharer

without first undergoing with the partition proceedings, and at the most, the

coparceners could only claim a share in the property and not any specific

portion of the land.

(21). Secondly, the assertions of the respondents that the petitioner

was having knowledge of the sale of land and was party to the panchayat

settlement or that Sharmila or Lalta had installed barbed wire and fenced the

boundaries of the disputed land showing them to be in cultivating possession

of the same, is of no significance for the reason that there is no material or

cogent evidence to prove and establish that Ranbir was actually competent or

qualified to enter into any sale transaction as no coparcener has a defined and

identified share in the property until there is a partition and that his only right

is to obtain by a suit for partition the share to which he would be entitled.

That being the state of affairs, there was no occasion for the Magistrate to

have invoked Section 145/146 CrPC for the reason that both the parties

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claimed possession over the disputed land and the best recourse which could

have been was to relegate the parties to ascertain ownership and possessory

rights over the disputed land in accordance with law before the competent

civil court. A Magistrate is not empowered to decide ownership of property

under Section 145 CrPC and rather, the focus is solely on determining

possession to prevent a breach of peace because the inquest proceedings are

summary in nature and do not delve into the merits of the ownership claims.

(22). Thirdly, under Section 52 of the Transfer of Property Act, 1882,

any sale deed executed which has been subjected to challenge and in relation

to which a suit is pending before the competent court of law, would be subject

to the final decree by such competent court, irrespective of fact whether the

purchaser was party to the suit. Section 52 of the 1882 Act reads as under:-

"52. Transfer of property pending suit relating thereto.--

During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the

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suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."

(23). A perusal of the above provision sufficiently means that the

coparceners or the subsequent purchasers shall be bound by the outcome of

suit and till then, the sale deed executed in relation to any piece of land or the

entire property without the consent of other co-owners/coparceners, especially

when the property remains undivided, cannot be held to be a valid transaction.

So much so, in a coparcenary property the shares of the person in the

property can be alienated but not the piece of the property which belongs to

Hindu Joint Family Property.

(24). That being so, once the civil suit between the parties is pending

for declaration of title or possession or regarding validity of the sale deed, in

that situation, a parallel proceeding under Section 145 of CrPC cannot be

initiated or allowed to be continued.