PETITIONER: PRAKASH CHAND SACHDEVA Vs. RESPONDENT: STATE DATE OF JUDGMENT14/12/1993 BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) PANDIAN, S.R. (J) CITATION: 1994 AIR 1436 1994 SCC (1) 471 1993 SCALE (4)657 ACT: HEADNOTE: JUDGMENT:
The 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 harassing him.
2.Dispute 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:
“I have vacated your Ground Floor Flat at G-
39, Jangpura Extn. today and possession of the
same was handed over to your goodself.
Please issue me a no dues certificate at the
earliest.
Thanking 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.
The 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
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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.
The High Court while agreeing with this reasoning added that
the appellant having sought civil remedy the proceedings
under Section 145 could not be continued.
3.True, 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.
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. 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.
4.In 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 unjust.
The learned counsel for the respondent during arguments
stated that the son was willing to keep his father with him.
What a charitably disposed son the respondent appears to be.
He is 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.
5.In 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.
477