ORDER
1. Petitioner Hartej Singh son of Joginder Singh gave a complaint dated 21-5-1994 to Station House Officer, Civil Lines, Amritsar (annexure P-11) wherein he had alleged that the property bearing No. 13 Khanna Street, Amritsar, was owned and possessed by Devinder Kaur (his paternal aunt) who had no issue and had executed a will in his (petitioner’s) favour in respect of the open space and one room and gave the constructed building to the Chief Khalsa Dewan, Amritsar (the third-respondent-herein). The petitioner has further alleged that Amarjit Singh (first respondent) claims to be the owner of vacant space on basis of some forged and fictitious sale deed, but, he has nothing to do with the property in the possession of the petitioner. According to the petitioner, Amarjit Singh intended to take forcible possession of the property of the petitioner, and Jasbir Singh (fourth-respondent-herein) also alleged himself to be the vendee from Chief Khalsa Dewan and is also threatening to take possession forcibly. The petitioner has further alleged that there is every likelihood of breach of peace, and therefore, had requested the Station House Officer, to initiate proceedings under section 145 of the Code of Criminal Procedure (since the parties have already been proceeded against under section 107/151 of the Code of Criminal Procedure, regarding the property No. 13, Khanna Street, Amritsar.
2. On the basis of this, the Station House Officer, Police Station Civil Lines, Amritsar, presented Calenra dated 23-5-1994 to the Executive Magistrate, Amritsar, alleging that Devinder Kaur was the owner of the House at No. 13 Khanna Street, Circular Road, Amritsar, that apart from the house there is vacant plot and a servant room in one corner, that as per the will of Devinder Kaur the constructed and covered part was given to Chief Khalsa Dewan, Amritsar, whereas the rent of vacant open area and the room on the one corner of the plot was bequeathed to the petitioner-Hartej Singh. He has further stated that after death of Devinder Kaur on 13-1-1988 the covered part of the house became the property of Chief Khalsa Dewan (third-respondent ) while the vacant plot and a room became the property of petitioner-Hartej Singh. According to this Calendra the Chief Khalsa Dewan had sold covered part of the house of Jasbir Singh (forth-respondent-herein) for Rs. 7 lakhs by an agreement and possession was also delivered.
3. It has further been alleged in the Calendra that there is only one main gate that the petitioner’s room is in front of this gate and that Hartej Singh used to go through this main gate. According to this Calendra Jasbir Singh, who had purchased the covered part of the house from Chief Khalsa Dewan, claiming right to the main gate and the open space did not allow petitioner-Hartej Singh to enter, whereas, Hartej Singh claims that he has right and was in possession of the main gate and the vacant area in front of the main gate and his room. The Station House Officer, has further alleged in the Calendra that both parties are in dispute and, therefore, proceedings under section 107/151 of the Code of Criminal Procedure have been initiated.
4. Therefore, the Station House Officer had requested that both parties be summoned to produce their documents and a Receiver may be appointed. He had also requested that the room, the main gate and the open spare in front of the main gate should not be allowed to be used by both the parties till the decision of the civil case pending in the Court.
5. The Executive Magistrate, Amritsar, on receipt of this Calendra issued summons to both sides to submit their documentary and oral evidence. Petitioner-Hartej Singh has filed a copy of the Will in his favour and also the copies of certain documents relating to the civil case pending in the Court, apart from certain documents relating to electric and water supply connections. Jasbir Singh the fourth-respondent filed a document relating to 325 sq. yards and a site plan filed by petitioner in the Court of Sub Judge 1st Class, Amritsar. The Executive Magistrate after hearing the arguments of both sides observed that the dispute regarding 325 yards is pending in Civil Court which has ordered status quo to be maintained, and that petitioner-Hartej Singh claimed ownership and possession of 325 yards on the basis of the will of his paternal aunt and contended that only the constructed building has been given to the Chief Khalsa Dewan. He further noted the contention of Jasbir Singh that the civil suit against Amarjit Singh, Daljit Kaur and Chief Khalsa Dewan was regarding plot of 325 yards consisting of the unbuilt and low area only, that he the petitioner has nothing to do with the open built area, and that the said built up area is part of the house given to Chief Khalsa Dewan, which has been purchased by Jasbir Singh. The Executive Magistrate concluded that ownership and possession of 325 sq. yards claimed by petitioner-Hartej Singh has shown in the site plan submitted by him in the Civil Court consists of the unbuilt and low area, and the petitioner has nothing to do with the gate and area in front of the gate. He rejected the contention of the petitioner that the open built area cannot be included with the building. The Executive Magistrate observed that the building and open built area in front of it seem to be in possession of Jasbir Singh (4th Respondent) who purchased the house from the Chief Khalsa Dewan through oral agreement and that possession and ownership will finally decided by the Civil Court. This order of the Executive Magistrate is Annexure P-13 dated 4-4-1995.
6. Aggrieved by this order, the petitioner has filed this petition for quashing this order of the Executive Magistrate wherein he has held that the fourth-respondent-Jasbir Singh is in possession of the property in dispute. The petitioner has alleged in the present petition that his paternal aunt Devinder Kaur was the owner of 567 sq. yards situated in No. 13, Khanna Street, Amritsar, that she had bequeathed part of the property to the petitioner, while the constructed area on the western side was given to Chief Khalsa Dewan. He has produced a copy of the will as Annexure P-1 and of the site plan as Annexure P-2. The petitioner has also alleged that he filed a suit for a declaration that he was owner in possession of the said area and praying that the respondents Nos. 1 and 2 be restrained from forcibly dispossessing him, and that the sale deed dated 2-5-1985 under which they claimed the property, was a forged and fictitious document. The copy of the plaint has been attached as Annexure P-3. The petitioner has also alleged that the Civil Court after issuing notice to respondents Nos. 1 to 3 ordered on 30-4-1988 that the parties should maintain status quo with regard to the possession. The copy of the said order is Annexure P-4. The petitioner has alleged that the appeals filed by both petitioner and respondents 1 and 2 were dismissed by the District Judge. The petitioner has further alleged that in a subsequent application against the third-respondent, the third-respondent was restrained from alienating the suit property till the disposal of the application for the appointment of Commission (Annexure P-5). The site plan prepared by the Local Commissioner has also been attached as Annexure P-2. The petitioner has also alleged that since the fourth-respondent-Jasbir Singh, claiming himself to be a purchaser from the third-respondent, threatened the petitioner that he would take possession of the property he (petitioner) gave a report to the Police (Annexure P-7) and also that proceedings under S. 107/151 of the Code of Criminal Procedure were initiated against them. According to the petitioner the fourth-respondent could not have come into the possession of the property in view of the orders of the Civil Court to maintain status quo and the order of injunction against any alienation. The petitioner has also alleged that the fourth-respondent has not produced any documentary proof to establish his ownership. Therefore, the petitioner prayed that the order and the finding of the Executive Magistrate regarding possession be set aside.
7. Though notice of this petition was served upon all the respondents, respondents Nos. 1 to 3 did not appear. The fifth-respondent-State of Punjab, filed a reply stating among other things that the Executive Magistrate has decided the matter legally after giving opportunity to the parties.
8. The fourth-respondent-Jasbir Singh filed a reply alleging that the Executive Magistrate recorded a finding that the area of 325 sq. yards claimed by Hartej Singh in Civil Suit consists of the unbuilt and low area, that he has nothing to do with the gate and the area in front of the gate, and that the same is in possession of Jasbir Singh, who purchased it from Chief Khalsa Dewan (the third-respondent) through oral agreement. He has also alleged that the suit filed by the petitioner is pending and that the parties have been directed to maintain status quo. According to him, the petitioner is in possession of the area of 325 yards claimed by him. He also claims that simultaneous proceedings under section 145, Cr.P.C. though, not maintainable were initiated at the instance of the petitioner and have been decided by the Executive Magistrate. According to him the rights of the parties have to be finally decided by the Civil Court as observed by the Executive Magistrate, and the petitioner is not in possession of the area in front of the main gate, whereas the same is being used by him. This respondent also claims that he is in possession of this area in part performance of the agreement to sell entered into between the third-respondent and himself on 7-12-1993. He also claims to have paid Rs. one lakh by way of cheque date 7-12-1993 and the remaining price on 6-5-1994. The fifth-respondent claims that in view of the order of the Civil Court restraining the alienation, the sale is yet to be executed. He claims that the built up area along with the open built area was owned and possessed by the third-respondent, and possession of the same was delivered to him in part performance of the oral agreement to sell. He has also alleged that the question of title cannot be gone into in these proceedings under S. 145 of the Code of Criminal Procedure.
9. I have heard the counsel for both the sides.
10. The total extent of the area was 567 sq. yds. The petitioner has filed a suit (Annexure P-3) in respect of a plot measuring 325 sq. yards out of this total extent against the respondents Nos. 1 to 3 herein, claiming to be the owner in possession of the same under the Will (copy-annexure P-1) executed by his paternal aunt Devinder Kaur. In that suit Sub Judge Ist Class, Amritsar, has ordered the parties to maintain status quo by his order dated 30-4-1988 (annexure P-4). The petitioner also prayed that the respondents should be retrained form alienating to suit property, and the Sub Judge, Amritsar, by his order dated 12-1-1994 ordered that the suit property shall not be alienated till the decision of the application for the appointment of a Commission. As per the will, the Chief Khalsa Dewan (third-respondent) has been given the constructed area, and the vacant plot of 325 sq. yards has been given to the petitioner. Whether this vacant plot given to the petitioner includes the main gate and the vacant area adjoining it is a matter in dispute in the Civil Court. Both parties make a claim over the same. The Civil Court has ordered the parties to maintain status quo, but, the Executive Magistrate has found that the ownership and possession of 325 sq. yards claimed by the petitioner as per the site plan filed by him in the Civil Court consists of the unbuilt and low area, and that the petitioner has nothing to do with the gate and the area in front of the gate. He did not accept the argument of the petitioner that the open built area cannot be included in the building given to the third-respondent. He observed that the building and the open built area in front of it seems to be in possession of Jasbir Singh, who has purchased the house from Chief Khalsa Dewan (third-respondent) through an oral agreement.
11. But the Executive Magistrate has no right to decide the ownership of either party over disputed area and that is a matter which has to be decided by the Civil Court in respect of which the civil suit is pending. The question whether the extent 325 sq. yards given under the Will to the petitioner includes the main gate and the open built area adjoining it has also to be decided by the Civil Court and the Executive Magistrate, is not competent to decide the same. Therefore, his finding in this regard cannot be sustained. This is especially so, when he has not given any reasons as to show he came to such a conclusion. Whatever it may be, the Executive Magistrate, in proceedings under section 145 of the Code of Criminal Procedure is incompetent to decide the title regarding the property in dispute.
12. So far as possession is concerned the Executive Magistrate has only observed that it seems that the property in dispute namely, the open built area is in the possession of Jasbir Singh. Even here he had not given a definite finding that it is in possession of Jasbir Singh, but has observed only that it seems that the same is in the possession of the fourth-respondent. The learned counsel for the petitioner contends that such an observation made by the Executive Magistrate is unsustainable. I agree with the learned counsel for the petitioner in this respect. The respondent has not placed any acceptable material to show that the he is exclusive possession of the disputed property. In such circumstances the Executive Magistrate was not right in holding that the fourth-respondent seemed to be in possession of the disputed property. Therefore, this finding of the Executive Magistrate has to be set aside. But the further question is whether the proceedings under Section 145, Cr.P.C. could have been initiated when the dispute is pending in the Civil Court between petitioner and the third-respondent, from whom the fourth-respondent claims to have purchased the disputed property and other property, which is a suit for declaration that the petitioner is the owner in possession of the disputed property. While the petitioner claims that he is the owner of the disputed property, the third-respondent, from whom the fourth-respondent claims to have purchased the property, claimed to be the owner of the disputed property. Therefore, the title to the property itself has to be decided. It depends not only upon the terms of the Will left by Devinder Kaur but also the measurements of the property. Therefore, when the very title is in question and when Civil Court has ordered status quo to be maintained, the proceedings under section 145 of the Code of Criminal Procedure are not competent. I have already pointed out that the Executive Magistrate was not right in holding that the ownership and possession of 325 yards claimed by the petitioner consists of the unbuilt and low area only and that the petitioner has nothing to do with the gate and the area in front of the gate, which is the disputed property. That has to be decided by the Civil Court. In such circumstances, I am of the view that the proceedings under S. 145, Cr.P.C. in this case are parallel in nature and are not competent. This view of mine is also supported by the decision of the Hon’ble Supreme Court of India in Ram Sumer Puri v. State of U.P., AIR 1985 SC 472 : (1985 Cri LJ 752) and Prakash Chand Sachdeva v. State, (1994) 3 Rec Cri 217 : (1994 Cri LJ 2117). In the former decision, it has been held as follows (at p. 753 of Cri LJ) :-
“When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceedings under section 145 of the Code, would not be justified. The 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.”
13. In the latter decision the Hon’ble Supreme Court, after referring to the Ram Sumer Puri’s case (1985 Cri LJ 752) (supra) held that (para 3 of 1994 Cri LJ 2117) :
“The normal rule is as stated by the Court in Puri’s case. But that was a suit based on title. And that could be decided by the 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 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 congnizance under section 145, Cr.P.C.”
14. Therefore, in these circumstances, I am of the view that neither the decision of the Executive Magistrate on the question of title and possession nor the initiation of the proceedings under section 145, Cr. P.C. can be sustained.
15. Accordingly, while quashing the order of the Executive Magistrate (Annexure P-13) dated 4-4-1995, I also hold that the proceedings under section 145, Cr.P.C. are incompetent, and leave the parties to have the dispute settled by the Civil Court. This petition is ordered accordingly.
16. Order accordingly.