1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2018 of 2024 1 - Lakhan Sahu S/o Buddhu Sahu Aged About 45 Years R/o Kurud Road, Kohka, P.S. Supela, Bhilai, Tehsil, Civil and Revenue District- Durg, Chhattisgarh. ... Petitioner(s) Versus 1 - State of Chhattisgarh Through S.D.M. Chhawni, Bhilai, District Durg, Chhattisgarh. 2 - Abhinav Gupta S/o Suresh Gupta Aged About 43 Years R/o 6/3, Nehru Nagar East, Thana- Supela, Tehsil And District- Durg, Chhattisgarh. 3 - Sangam Singh S/o Mahesh Singh Rajput Aged About 44 Years R/o 6/B, Pocket Maroda, Bhilai, Tehsil and District Durg, Chhattisgarh. Respondent(s) ----------------------------------------------------------------------------------------------------- _ For Petitioner : Shri Jaydeep Singh Yadav, Advocate. For State : Shri Ajit Singh, Govt. Advocate. For Respondents 2&3 : Shri Gurudev I. Sharan, Advocate. -------------------------------------------------------------------------------------------------------- Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order reserved on 03.10.2024 Order delivered on 02 .04.2025 1. The present Criminal Misc. Petition filed by the petitioner under Section 528 of BNSS, 2023 is directed against the order dated 12.07.2024 passed by the Additional Sessions Judge, Durg, in Criminal Revision No.140/2024 whereby the Criminal Revision filed by the petitioner has been dismissed. Digitally signed by INDRAJEET SAHU Date: 2025.04.03 17:23:41 +0530 2 2. Brief facts of the case are that, the petitioner Lakhan Sahu and two others namely Ashish Kumar and B. Chalpati purchased 4800 sq. feet of land of Khasra No.2021/7 situated at village Kohka District Durg from its owner Banda Shridhar Rao through registered sale deed dated 15.09.2016 for a total consideration of Rs.24,00,000/-. Lakhan Sahu has purchased 1600 Sqr. Ft. of land from Kh. No. 2021/7 for the total consideration of Rs. 8,00,000/-, Ashish Kumar has purchased 1600 Sqr. Ft. of land from Kh. No. 2021/7 for the total consideration of Rs. 8,00,000/- and B. Chalpati has also purchased 1600 Sqr. Ft. of land from Kh. No. 2021/7 for the total consideration of Rs. 8,00,000/-. After the purchase of aforesaid land, they came into possession of the same. At the time of purchase of said land, the said land was surrounded by boundary wall. The sale deed was executed in favour of the petitioner through power of attorney holder of Banda Shridhar Rao namely Tarun Sinha which was executed on 20.01.2011. He obtained due permission from the concerned authority to construct building over there and after constructing a house, he started residing thereon. On 04.05.2017 the respondent No.2&3 made a complaint to police Station Smriti Nagar Chowki, Bhilai, District Durg, alleging that the subject land belongs to them and they have purchased the said land in the year 2006 & 2008 respectively, but the land was possessed by Banda Shridhar Rao by constructing a boundary wall. The respondent no. 3Sangam Singh has made complaint that he purchased a piece of land of 0.020 Hect. From Kh. No. 1968 from its owner Sayyed Siddiqui in the name of his wife Smt. Anita Singh on 31-03-2008 through registered sale deed but his land is encroached by Banda Shridhar Rao by constructing a boundary wall there, his land is adjoining to the land of Abhinav Gupta. The respondent no. 2 has also made a complaint on 04-05-2017 that he purchased a piece of land of 3 Kh. No. 2005 area 0.020 Hect. From its owner Smt. Kirti Devi Singh, through registered sale deed dated 09-11-2006 but his land has also been encroached by Banda Shridhar Rao by constructing a boundary wall and sold it to others by forged documents. They also submitted a demarcation report along with their complaint. In pursuance of the complaint made by the respondents No.2&3, the concerned police prepared an Istgasha on 01.08.2017 and, considering emergent situation of law and order, submitted it before the Sub Divisional Magistrate (in short, SDM), Chhawni, District Durg under Section 145 of CrPC. The SDM, Chhawni, took cognizance of the said Istgasha under Section 145(1) CrPC and a preliminary order was passed on 09.08.2017, registering the case and issued notices to the concerned parties. The non-applicants submitted their reply and the SDM proceeded to record evidence of the parties. After the conclusion of recording evidence of the parties, the SDM Chhawni passed its order on 06.03.2024 and held that party No.1 was forcefully dispossessed by party No.2 from plot No. 48 & 49 in which the party No.1 was in possession and ordered that party No.1 is entitled for his possession over the plot No.48 & 49, Khasra No.1968, are 0.020 Hect. situated at village Kohka, PH No.19, District Durg and restrained the party No.2 from the possession of Party No.1 till an order of removal is passed by the competent court. 3. The said order dated 06.03.2024 passed by the SDM, Chhawni, District Durg was challenged by the present petitioner before the Additional Sessions Judge, Durg, by filing revision under Section 397 CrPC. After hearing the party, the revisional court dismissed the revision filed by the present petitioner vide order dated 12.07.2024 which is under challenge in the present petition. 4 4. Learned counsel for the petitioner would submit that complaint was preferred on 04.05.2017 along with demarcation report of the year, 2016 in which the land was mentioned as surrounded by the boundary wall. The petitioner purchased the said land on 15.09.2016 whereas, the complaint was made on 04.05.2017. Section 145 CrPC provides that possession with regard to power under Section 145 CrPC for restoring the possession of forceful dispossession is within two months next before the date on which the report of a police officer or other information was received by the Magistrate, but in the present case the petitioner is in possession of land in question for more than two months of alleged dispossession and therefore the proceeding under Section 145 CrPC was not maintainable. The respondents No.2&3 are claiming ownership of land in question since 2006 & 2008 respectively, but till date they have not filed any civil suit for declaration of their title, injunction or for possession before any competent court of law for adjudication of the dispute, but tried to get their possession secured over the property by proceeding under Section 145 CrPC. He would further submit that the SDM as well as the revisional court should have considered that respondent No.3 have admitted that Banda Shridhar Rao had occupied the said land by constructing a boundary wall over there and he also admitted its location. It is further submitted by him that the SDM has taken the date of 11.03.2016 to calculate the period of two months in view of the provisions of Section 145(4) CrPC which is erroneous in view of the fact that party No.1 (respondents No.2&3) have preferred the complaint on 04.05.2017 before the concerned police authorities after being dispossessed from the said land. The respondents kept silent for such long time. The remedy available to respondents No.2&3 was to file proper civil 5 suit before the competent authority instead of initiating proceeding under Section 145 CrPC. 5. Learned counsel for the respondents No.2&3 would submit that with respect to subject property, a civil suit was filed by the present petitioner against the respondents No.2&3 which is pending consideration before the Ist Additional Civil Judge Class-I to the Court of Ist Civil Judge Class-I vide Civil Suit No. A/199/2024. When the matter is subjudic before the competent Civil Court, interference in the present petition is not warranted as the matter requires detail evidence and having various facets of factual dispute. Therefore, the present petition is liable to be dismissed. 6. I have heard the counsel for the parties and perused the material annexed with the petition. 7. Before the SDM, the party No.1 i.e. the respondent No.2 had submitted his reply, a copy of which is also annexed as Annexure A/7 with the petition. From perusal of reply, it appears that in paragraph 9 of its reply, the party No.1 had submitted that on 27.02.2016 when he had gone to his plot, he found the party No.2/present petitioner Lakhan Sahu encroaching his land and when he objected, quarrel took place and then he made an application before the Tehsildar, Bhilai, for demarcation of his land and made a police complaint to Police Chowki, Smriti Nagar Bhilai on 11.03.2016. He made an averment that 15 days back from the date of complaint dated 11.03.2016 he was being dispossessed by the party No.2. The relevant portion of reply submitted by the party No.1/respondent No.2 is reproduced hereinunder for the sake of convenient: “9. यह कि अनावेद . 02 ( पा቏ኍ . 01) ने अपने प्ला቏ኍ में पत्थर ा घेरा डालर व अपने स्वाकिमत्व से संबंधित पकिा लगार अपने स्वाकिमत्व े प्ला቏ኍ पर अपना ब्जा सुरधि#त किया था अनावेद ं . 02 ( पा቏ኍ . 01) किनयकिमत रूप से 6 अपने प्ला቏ኍ पर जार देखभाल भी रता था। अनावेद . 02 ( पा቏ኍ . 01.) 27 फरवरी 2016 ो जब अपने प्ला቏ኍ पर गया तब उसने पाया कि पा቏ኍ . 02 अनावेद लखन साहू ने अनावेद . 01 ( पा቏ኍ . 01) े ब्जे में दखल देते हुये उसे लिलये चारो ओर से लगे पत्थर े घेरे ो व उसे नाम ी पी ो ह቏ኍार ब्जा र रहा है। अनावेद ं . 01 ्ቛारा जब पा቏ኍ ं . 02 लखन साहू ने उसे प्ला቏ኍ े अवै तरीे से ब्जा रने से मना किया गया तब अनावेद . 02 ( पा቏ኍ . 01) से गाली गलौच र मारपी቏ኍ रने पर उतारू हो गया जिजससे घबरार अनावेद . 02 ( पा቏ኍ ं . 01) ने तहसीलदार भिभलाई े सम# अपनी भूकिम े सीमांन हेतु आवेदन किदया तथा इसी भि9ायत पुलिलस चौी स्मृधित नगर किमलाई में किदनां 11.03.2016 ो ी गई। इस ्ቚार स्प्ቖ है कि पा቏ኍ . 02 लखन साहू ्ቛारा अनावेद . 02 े ब्जे में हस्त#ेप र जबरदस्ती पुलिलस े सम# भि9ायत किदनां 11.03.2016 े 15 किदन पूव= बेदखल किया है। अनावेद . 02 ्ቛारा किदनां 11.03.2016 े प्ቐात भी पुलिलस े सम# दो तीन बार लिललिखत में भि9ायत किया है और इन सभी भि9ायतों े आार पर पुलिलस चौी समृधित नगर द.्ቚ.सं. े ारा 145 ी इस्तगा9ा पे9 किया गया है। अतः ्ቚाथ=ना है कि अनावेद ( पा቏ኍ ं . 02) े ब्जे से अनावेद (पा቏ኍ . 01) े स्वाकिमत्व ी भूकिम खसरा नं. 2005 रबा 0.020 हे. प्ला቏ኍ नं. 49 पर से ब्जा मु्ሹ रार ह቏ኍार पा቏ኍ ं . 01 अभिभनव गु्቎ा ो उ्ሹ भूकिम ा ब्जा किदये जाने हेतु आदे9 पारिरत रने ी ृ पा रे।" 8. From demarcation report annexed with the petition which was also a part of complaint dated 04.05.2017 in which the Sthal Panchnama was also annexed at page No.75 of the petition, reads as under: ^^vkt fnukad 30-03-2016 dks xzke dksgdk i-g-ua- 19] rglhy o ftyk nqxZ fLFkr HkwfeLokeh gd dh Hkwfe [kljk ua- 2005 jdck 0-020 gsDVs- lhekadu gsrq U;k;ky; ds vkns’kkuqlkj vkosnd vfHkuo xqIrk vkRet ,l-ds- xqIrk fuokhlh usg: uxj] iwoZ] fHkykbZ o lehiLFk Hkw[kaM/kkjh dks lwfpr fd;k tkdj gYdk iVokjh ds lkFk vfHkys[k lfgr mifLFkr gqvkA IykV ua-&49 dPPkk ysvkmV ds vuqlkj] ij Jh/kj jko dk ckmUMjh oky ?ksjk gSA vkosnd dh Hkwfe [kljk ua- 2005 orZeku uD’kk ds vuqlkj dksgdk tqquokuh ekxZ ds mRrj fn’kk esa iznf’kZr dj jgk gS tcfd vkosfnr Hkw[kaM nf{k.k fn’kk esa gSA** 9. Further, from the complaint dated 04.05.2017 it also reflects that person Banda Shridhar Rao has already possessed the plot in question by 7 constructing the boundary wall over there and in paragraph 3 of his complaint he has mentioned that “;g fd mDRk [kljk ua-1968 jdck 0-20 gsDVs- IykV Uka-&48 ij cank Jh/kj jko vkRet cank osadV ujlq us ckmUM~h oky cukdj voS/k dCtk dj fy;k gSA^^ 10. From conjoint reading of all these documents, it is quite vivid that on 30.03.2016 when Sthal Panchnama was prepared by the revenue authorities, the boundary wall was already constructed and the was mentioned in the complaint of respondent No.3 which is also mentioned in the reply filed by the party No.1/respondent No.2 before the SDM. The copy of reply submitted by the present respondent No.3 before the SDM, Chhawni, which is also annexed with the petition at page No.145, and from perusal of reply of respondent No.3, he too have stated that on 30.03.2016 the demarcation proceeding was done by the revenue authorities and at that time some quarrel took place which also confirms that on the date when Sthal Panchnama was prepared i.e. on 30.03.2016, boundary wall was already constructed there and after about one year the complaint has been made on 04.05.2017. 11. It is the case of private respondents that they have already made a complaint on 11.03.2016 to the police authorities at police station, Smriti Nagar, Bhilai and the subsequent complaint was made on 04.05.2017 and for that reason the SDM has taken the crucial date of 11.03.2016 on which the respondents No.2&3 have been dispossessed by the petitioner. 12. Be that as it may, perusal of the order sheets of the trial court filed on 01.10.2024 along with the covering memo by the respondents No.2&3 goes to show that a civil suit was filed by the petitioner on 19.07.2024 before the trial court against the respondents for declaration of title and 8 permanent injunction and the same is pending consideration. The said civil suit is with respect to land bearing Khasra No.2021/7, Area 0.10 Hect. with respect to the present disputed property in which the plaintiff has pleaded that plaintiff is in possession over the land in question since 2016 and cause of action arose when the SDM has passed its order on 06.03.2024. A copy of plaint has also been annexed at page No.10 of the document submitted on 01.10.2024 along with covering memo. 13. In the matter of Ram Sumer Puri Mahant Vs. State of UP & Others, 1985 (1) SCC 427, the Hon’ble Supreme Court has held that when a civil litigation is pending for the property with respect to its possession, simultaneous proceeding under Section 145 CrPC cannot be permitted to run together. In paragraph 2 of the said judgment it was observed as under: “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. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceeding 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 dependency 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 and the order of the learned Magistrate should be quashed. We accordingly allow the appeal and quash the order of the learned Magistrate by which the proceeding under Section 145 of the Code has been initiated and the property in dispute has been attached…..…” 14. Further, in the matter of M. Siddique Vs. Mahant Suresh Das, 2020 (1) SCC 1 in paragraph 295, 296, 299.1 and 299.2, the Hon’ble Supreme Court has held as under: “295. Section 145 is recognised to be a branch of the preventive jurisdiction of the Magistrate. Section 145(1) can be invoked on the satisfaction of the Magistrate that "a dispute likely to cause a breach of the peace exists...". The provision relates to disputes regarding 9 possession of land or water or its boundaries which may result in breach of the peace. The function of the Magistrate is not to go into questions of title, but to meet the urgency of the situation by maintaining the party in possession. The Magistrate is empowered to call upon the parties to put in written statements in support of their claim to "actual possession". Such an order is to be served as a summons upon the parties. The Magistrate is to peruse the statements, hear the parties and weigh the evidence, in order to ascertain who was in possession at the date of the order. The Magistrate may make that determination "if possible" to do so. Moreover, the determination is about the factum of possession on the date of the order "without reference to the merits of the claim of any of such parties to a right to possess the subject of the dispute". These words indicate that the Magistrate does not decide or adjudicate upon the contesting rights to possess or the merits of conflicting claims. The Magistrate is concerned with determining only who was in possession on the date of the order. If possession has been wrongfully taken within two months of the order, the person so dispossessed is to be taken as the person in possession. In cases of emergency, the Magistrate can attach the subject of the dispute, pending decision. The action ultimately contemplated under Section 145 is not punitive, but preventive, and for that purpose is provisional only till a final or formal adjudication of rights is done by a competent court in the due course of law. Thus, nothing affecting the past, present and future rights of parties is contemplated under the provision. 296. The object of the provision is merely to maintain law and order and to prevent a breach of the peace by maintaining one or other of the parties in possession, which the Magistrate finds they had immediately before the dispute, until the actual right of one of the parties has been determined by a civil court. The object is to take the subject of dispute out of the hands of the disputants, allowing the custodian to protect the right, until one of the parties has established her right (if any) to possession in a civil court. This is evident from the provisions of sub- section (6) of Section 146. The Magistrate declares the party which is entitled to possession "until evicted therefrom in due course of law". While proceeding under the first proviso, the Magistrate may restore possession to a party which has been wrongfully and forcibly dispossessed. No party can be allowed to use the provisions of Section 145 for ulterior purposes or as a substitute for civil remedies. The jurisdiction and power of the civil court cannot in any manner be hampered. [Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal, 20th Edn. (2016) at p. 451.] ............................… 299. Where a suit is instituted for possession or for declaration of title before a competent civil court, the proceedings under Section 145 should not continue. This Court has analysed the above proposition of law in the following cases: 299.1. In Amresh Tiwari v. Lalta Prasad Dubey, (2000) 4 SCC 440, S.N. Variava, J. speaking for a three-Judge Bench of this Court held thus : "12. ... The law on this subject-matter has been settled by the decision of this Court in Ram Sumer PuriMahant v. State of U.P (1985) 1 SCC 427. In this case it has been held as follows : '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. 10 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 v. Lalta Prasad Dubey, (2000) 4 SCC 440 : 2000 SCC (Cri) 806] rejected the submission that the principle in Ram Sumer PuriMahant v. State of U.P. [Ram Sumer PuriMahant v. State of U.P., (1985) 1 SCC 427 : 1985 SCC (Cri) 98] will apply only after the civil court has adjudicated on the issue : "13. We are unable to accept the submission that the principles laid down in Ram Sumer case [Ram Sumer PuriMahant v. State of U.P., (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 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." 15. Once, the civil suit is seized of the matter, the proceeding under Section 145/146 of the Cr.P.C. must come to an end, and the respective claims of the parties about title or possession or even the identification of the land of the parties are to be decided by the civil court. In the matter of Mohd. Abid Vs. Ravi Naresh, 2022 SCC online SC 2416, the Hon’ble Supreme Court, in para 4 of its order held that :- “4. It is, however, an admitted fact that the petitioners have already filed a suit for injunction in which ex-parte ad- interim 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 inter- se rights of the parties regarding title or possession are eventually to be determined by the Civil Court.” 11 16. Thus, in the aforesaid view of the matter, since the civil court is in seisin of the dispute between the parties, without expressing any opinion on the merits of the rival claims of the party, the present petition is disposed of. However, the trial court is directed to decide the civil suit filed by the present petitioner on its own merits in accordance with law without being influenced by any of the observations made either in the order passed by the SDM, Chhawni or the order passed by the revisional court. It is also made clear that any observations made by this court shall not come in the way of trial court while deciding the pending civil suit. 17. The petition accordingly stands disposed of with the aforesaid observations. Sd/- (Ravindra Kumar Agrawal) Judge inder