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Umrao v. Sheonarain

Rajasthan High Court

Aug 12, 1975

Judgment

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Structured Summary of the Opinion (Sharma, J.)

Factual and Procedural Background

This revision arises from an order dated 12-7-1974 of the Sub-Divisional Magistrate, Khetri, in proceedings under section 145, Criminal Procedure Code (Cr. P.C.), by which four Khasra parcels (totalling 21 Bighas 14 Biswas) situate in Dhani Khatoti village Sator were attached under section 146, Cr. P.C. The land had been recorded in the khatedari of the deceased Bagta and, after his death (17-2-1965), a mutation in favour of his four sons (including the petitioner Umrao and three brothers) was entered in revenue records; a passbook was issued to them on 10-7-1973. During pendency of a civil suit for division, two other claimants (Sheonarain and Surja Ram of party No. 2) obtained a new passbook on 1-6-1974 and reported to the police a dispute likely to cause breach of peace. The Station House Officer reported to the Sub-Divisional Magistrate on 11-7-1974, who then drew a preliminary order (12-7-1974) under section 145 stating grounds of satisfaction and, on finding an emergency, ordered interim attachment under section 146 and appointed a Naib-Tehsildar as receiver. Umrao and his co-petitioners filed this revision challenging the preliminary order and attachment.

Legal Issues Presented

Whether a revision under section 397, read with section 401 Cr. P.C., lies against an order of attachment passed under section 146 Cr. P.C. (i.e., whether the attachment order is interlocutory or final such that it is revisable).
Whether an order of attachment made under section 146 Cr. P.C. in a case of emergency is final (continuing until a competent court determines the rights of parties) or an interlocutory order subject to the bar in section 397(2) Cr. P.C.
Whether the Sub-Divisional Magistrate had jurisdiction to institute proceedings under section 145 Cr. P.C. where, on the material, the dispute appeared to be between co-khatedars (i.e., a dispute about undivided shares/joint possession), and thus outside the proper scope of section 145.

Arguments of the Parties

Party No. 2 (Respondents / Non-petitioners) — Arguments

A preliminary objection that the revision cannot be entertained because the impugned order is interlocutory; reliance on section 397(2) Cr. P.C. which bars revision in respect of interlocutory orders.
Relied on the authority Dhola v. The State to support the definition and treatment of interlocutory orders.
On merits, contested the claim that the dispute was one of joint/undivided possession, arguing there was no material showing party No. 2 claimed only an undivided share; asserted the matter concerned disputed possession and so fell within section 145.
Argued that the proviso to section 146(1) (power to withdraw attachment) indicated that an attachment was not final and so did not attract revision as a final order.

Petitioners (Umrao and co-petitioners) — Arguments

Contended that under the new Code the attachment ordered under section 146 Cr. P.C. is final in the sense that it continues until a competent court determines the parties' rights to possession, and thus the proceedings under section 145 should end on attachment.
Argued that even if the respondents' claim were accepted on its face, it amounted to a claim of undivided share/joint possession among co-khatedars, in which case the Sub-Divisional Magistrate had no jurisdiction to proceed under section 145 (relying on Nahar Singh v. The State for the proposition that no declaration of joint possession can be made under section 145).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dhola v. The State	Definition/treatment of an interlocutory order as one passed at an intermediary stage and incidental to the final determination of rights.	The Court considered the Dhola definition when addressing the preliminary objection that revision was barred because the attachment order was interlocutory; ultimately, the Court distinguished the present attachment under the new Code from the interlocutory attachments under the old Code and held the attachment here was not interlocutory.
Nahar Singh v. The State	Observed that no declaration of joint possession can be made under section 145, Cr. P.C.	The petitioners relied on this authority to argue that a dispute between co-khatedars (over undivided shares) is not amenable to section 145 jurisdiction. The Court accepted the principle and found the Magistrate lacked jurisdiction on the material before him.
Ghulam Shah v. Meerajuddin	Support for the view that disputes between co-khatedars regarding undivided shares are not proper for section 145 proceedings.	The Court cited this decision as analogous support for its conclusion that the Magistrate should not have initiated section 145 proceedings where party No. 2's own statements described the dispute as between co-brothers cultivating jointly (i.e., co-khatedars).

Court's Reasoning and Analysis

The Court undertook a step-by-step analysis anchored on differences between the old and new Codes of Criminal Procedure and on the nature and object of attachment under the relevant sections:

Under the old Code (Cr. P.C., 1898) the third proviso to section 145(4) allowed a Magistrate to attach the subject of dispute in an emergency "pending his decision under this section," which indicated such attachment subsisted only until the Magistrate's final decision in the section 145 proceedings; thus, under the old Code an attachment was clearly interlocutory.
Under the new Code, the provision dealing with attachment in emergencies was re-located to section 146, Cr. P.C., and the new wording permits the Magistrate to attach the property "until such time as a competent court has decided the rights of the parties to the subject of dispute with regard to the person entitled to the possession thereof." The Court construed this as a material change: the attachment can continue indefinitely until a competent (civil) court determines rights.
The Court emphasized the object of attachment under section 146 — to keep property in custodia legis to prevent breach of the peace — and reasoned that once the property is in court custody, that object is achieved and the practical purpose of continuing section 145 proceedings ends.
The Court observed that though a Magistrate may, upon inquiry, declare possession in favour of a party under the proviso to the old section 145(4) and even effect restoration to a dispossessed party, after an attachment under section 146 the Magistrate cannot finally restore possession in a manner that would obviate the need for a competent court to decide rights. The Magistrate is not a "competent court" for a determination of substantive rights because his inquiry must avoid addressing the merits of competing title claims.
From these points the Court concluded that an attachment under section 146 (as framed in the new Code) is not merely interlocutory but is final insofar as it continues until a competent court adjudicates the parties' rights — and therefore such an order is revisable by this Court under sections 397 and 401 Cr. P.C.
The Court addressed the respondents' contention based on the proviso empowering the Magistrate to withdraw attachment when the likelihood of breach of peace no longer exists. The Court held that the existence of a discretionary power to withdraw attachment does not render the attachment order inherently interlocutory; the discretion must be exercised judicially and the mere availability of withdrawal does not remove the final character of the attachment as defined by the new Code's structure.
Turning to the merits, the Court examined the record and found that the respondents' application (as recorded by the Station House Officer) expressly described six brothers cultivating the land jointly and complained of obstruction to cultivation and threats. The Magistrate's preliminary order merely reproduced the report without ascertaining whether the real nature of the dispute was one of joint/undivided possession among co-khatedars.
The Court held that where the dispute, on the material before the Magistrate, is between co-khatedars regarding undivided shares, section 145 proceedings are not appropriate; the Magistrate therefore lacked jurisdiction to institute section 145 proceedings and to attach under section 146, since the powers under section 146 are consequential to proper initiation of section 145 proceedings.
The Court observed the proper course in such co-khatedar disputes would be to consider action under other provisions such as sections 107 or 144 Cr. P.C., as appropriate, rather than a section 145/146 attachment based on the record here.

Holding and Implications

Holding: The revision petition was allowed; the impugned preliminary order and the order of attachment dated 12-7-1974 passed by the Sub-Divisional Magistrate, Khetri, were set aside.

Implications / Consequences:

The immediate consequence for the parties is that the attachment of the disputed land ordered on 12-7-1974 is vacated (the impugned order is set aside).
The Court held that an order of attachment under section 146, Cr. P.C. as framed in the new Code can be of a final character (continuing until a competent court determines rights) and thus is revisable by this Court under sections 397 and 401 Cr. P.C.; the Court therefore rejected the submission that such orders are necessarily interlocutory and beyond revision under section 397(2).
The Court also held that where the material before the Magistrate indicates the dispute is between co-khatedars concerning undivided shares (joint possession), the Magistrate lacked jurisdiction to proceed under section 145 Cr. P.C. and consequent powers under section 146 could not be validly exercised; such matters are not properly determined by a section 145 proceeding and alternative provisions (e.g., sections 107 or 144 Cr. P.C.) should be considered.
The Court applied earlier authorities (Dhola; Nahar Singh; Ghulam Shah) in its reasoning to construe interlocutory versus final character and the limits of section 145 in cases of joint/undivided possession.

This summary is based exclusively on the information contained in the provided opinion and does not add or infer facts or law beyond that text.

Show all summary ...

Sharma, J.:— This is an application in revision filed by Umrao, (hereinafter referred to as party No. 1, along with his real brothers, Kashi Ram, Mohar Singh, and Sube Singh), against an order of the Sub-Divisional Magistrate, Khetri, dated 12-7-1974, in a proceeding under sec. 145, Cr. P.G whereby the disputed land covered by Khasra Nos. 2 measuring 9 Bighas 15 Biswas, 8 measuring 3 Bighas 4 Biswas, 19 measuring 4 Bighas 10 Biswas and 21 measuring 4 Bighas 5 Biswas and situated in Dbani Khaioti village Sator was attached under sec. 146, Criminal Procedure Code, 1973, after drawing a preliminary order containing the grounds on which the Sub-Divisional Magistrate was satisfied that a dispute likely to cause breach of peace exists between the party No. 1 and party No. 2 concerning the land in dispute.

2. The relevant facts giving rise to this revision-petition may be briefly stated as follows:—

The disputed land consists of four Khasra numbers measuring 21 Bighas and 14 Biswas in toto. The land is situated in Dhani Khatoti village Sator and was recorded in the revenue records in the Khatedari of Bagta deceased. After the death of Bagta on 17-2-1965, a mutation order was passed in respect of this land in favour of his four sons, namely, Umrao, Mohar Singh, Kashi Ram and Hazari on 18-3-1965. The said mutation order was given effect to and the names of the above-named four sons of Bagta were entered in the column of Khatedars in Jamabandi records of Sam-vat 2025 to 2029. Apart from this, a pass book of these Khasra numbers was also issued by the Revenue authorities to Umrao and his three brothers on 10-7-1973. In this manner, part No. 1 Umrao and his three brothers have been in peaceful possession of the land in dispute and have been paying the rent thereof to the Revenue Department. Sheonarain and Surja Ram members of party No. 2, who are sons of Richhpal claimed to be the sons of Bagta and on the basis of their claim got a new pass book issued from the Revenue authorities in respect of the subject of dispute on 1-6-1974 without any notice to party No. 1 Umrao and his brothers. The new pass book was obtained by Sheonarayan and Surja Ram during the pendency of a suit for division of holdings which they have instituted in the court of the Sub-Divisional Magistrate, Khetri, on the ground that they also were the sons of Bagta. After obtaining the new pass book, Sheonarain and Surja Ram allias Suraj Bhan made a report to the Station House Officer, Bhuhana, that there exists a dispute likely to cause breach of peace between them and party No. 1 in respect of the possession of the land in dispute and that necessary action should be taken. The Station House Officer, Bhuhana, made a report to the Sub-Divl. Magistrate, Khetri, on 11-7-1974 about the existence of a dispute likely to cause breach of the peace in respect of the land. He further reported that the case was one of emergency and that the land in dispute should be attached so as to prevent the parties from disturbing the peace. The Sub-Divisional Magistrate drew up a preliminary order on 12-10-1974, stating the grounds of his being satisfied that a dispute likely to cause breach of peace existed in respect of the land and requiring the parties concerned in the dispute to appear before him and to file written statements of their respective claims as respects the actual possession of the land in dispute. After passing the preliminary order, the learned Magistrate passed an order for interim attachment of the land under sec. 146, Cr. C.P because in his opinion it was a case of emergency. By the same order, he appointed the Naib-Tehsildar, Khetri, to be the receiver of the land alter its attachment. Aggrieved by this order, Umrao has come up in revision to this Court.

3. Notice of this revision-petition was given to the non-petitioners and the record of the lower court was called for. Mr. N.L Tibrewal appeared on behalf of party No. 2 and contested the application-iu-revision. Before arguments were advanced on the merits, a preliminary objection was raised by the learned counsel for the non-petitioners i.e party No. 2 that the revision-petition cannot be entertained against the impugned order as it is an order of an interlocutory nature. Mr. Tibrewal invited my attention to the provisions contained in sub sec. (2) of sec. 397, Cr. P.C and contended on their strength that the powers of revision conferred by sub-sec. (1) of sec. 397, Cr. P.C cannot be exercised in relation to an interlocutory order passed in any proceeding. He relied upon an authority of this Court— Dhola v. The State (1), wherein an interlocutory order has been defined as one which is passed at some inter-mediary stage of a proceeding and which is incidental to the principal object of the action, namely, final determination of the rights of the parties.

4. Mr. P.N Datt, on the other hand, argued that the impugned order does not fall within the purview of interlocutory orders after the commencement of the new Code of Criminal Procedure and that it is a final order in the seme that the attachment order passed under sub sec. (1) of sec. 146, Cr. P.C is to continue until a competent court has determined the rights of the parties to the subject of dispute with regard to the person entitled to the possession thereof and that once such an order has been passed, the proceedings under sec. 145, Cr. P.C must come to an end.

5. I have considered the rival contentions. At the outset it may be observed that under the old Code of the Criminal Procedure, 1898, the Magistrate was empowered to attach the subject of disput in case of emergency in exercise of his powers conferred by the third proviso to sub-sec. (4) of sec. 145, Gr. P.C, which reads as follows:—

“Provided also that, if the Magistrate consi-time attach the subject of dispute, pending his ders the case one of emergency, he may at any decision under this section.”

6. The order of attachment in case of emergency subsisted till the Magistrate had passed a final order u/sub-sec. (6) of sec. 145 unless he cancelled the preliminary order u/sub-sec. (5) of &ec. 145, Cr. P.C The wordings pending his decision under this section in the third proviso to sub-sec. (4) of sec. 145 of the Old Code clearly indicated that an attachment of the subject of dispute did not subsist after the Magistrate has decided the entire proceedings finally. In the proviso quoted above, the interim attachment could not be made to continue until the rights of the parties to the land in dispute with regard to the person entitled to the possession thereof have been determined by a competent court. Hence under the old Code the order of attachment was clearly an interlocutory order made in the case of emergency during the pendency of the proceedings under sec. 145, Cr. P.C But after the commencement of the new Code there is a change in the legal position because under the new Code the provision of attachment in case of emergency contained in sec. 145, Cr. P.C has been incorporated in sec. 146, Cr. P.C Now the Magistrate can attach the property indefinitely until such time as the competent court has decided the rights of the parties to the subject of dispute with regard to the person entitled to the possession thereof. The main object of the attachment of the land in dispute under sec. 146, Cr. P.G, in case of emergency is to keep the property in custodia Iegis in order to prevent the contesting party from resorting to the breach of the peace in their efforts to obtain the actual possession thereof. As soon as the land is attached in a case of emergency and the property is kept in the custody of the Court, the said object is achieved and, in my humble opinion, the proceedings under sec. 145, Cr. P.G should come to an end, because the attachment is made to subsist until the claim of the parties to a right to possess the subject of disput is determined by a competent court.

7. Looked from another aspect also, the legal position appears to be the same. If after attaching the subject of dispute in a case of emergency under sub-sec (I) of sec. 146, Cr. P.C the Magistrate makes a proper inquiry into the question of possession and decides that one of the parties was or should, under the proviso to sub sec (4) of sec. 145, Cr. P.C be treated as being in possession of the subject of dispute, he shall declare the possession of such party and when he proceeds under the proviso to subsec. (4), may restore to possession the party forcibly and wrongfully dispossessed. But after once having attached the subject of di pute in a case of emergency, he cannot restore to possession the party in whose favour he passes the final order under sub-sec. (6A) of sec 145, Cr. P.C, because the attachment shall continue until such time as a competent court has decided the rights of the parties to the subject of dispute. It will not be out of place to mention that the Magistrate is not a competent court because he is required under the law to decide the question of possession without reference to the merits of the claims of any of the parties to a right to possess the subject of dispute. Hence after attachment of the subject of dispute in a case of emergency under sub sec. (1) of sec. 146, Cr. P.C a proper inquiry into the question of possession as envisaged by sub-sec. (4) of sec. 145, Cr. P.G is of no use, because even after passing a final order under sub-sec. 6A of sec. 145, Cr. P.C an attachment has to be continued until determination by a competent court of the rights of the parties to the subjects of dispute with regard to the person entitled to the possession thereof. In this view of the matter, the impugned order passed by the Sub Divisional Magistrate, Khetri, attaching the land in dispute on the ground of emergency under sec. 146, Cr. P.C is a final order.

8. Mr. Tibrewal further contended that under the proviso to sub-sec. (I) of sec. 146, Cr. P.C a Magistrate can raise an attachment whenever he is satisfied that likelihood of a breach of peace no longer exists. According to him, in view of the proviso, no finality is attached to an order of attachment under sub sec. (1) of sec. 146, Cr. P.C I am unable to subscribe to the view of Mr. N.L Tibrewal on this point, because on the making of an order there is no longer any likelihood of a breach of the peace with regard to subject of dispute, the proceeding under sec. 145, Criminal Procedure Code itself comes to an end and the position of the parties is precisely the same as if no proceedings had been initiated at all under sec. 145, Cr. P.C In such circumstances, a Magistrate has jurisdiction to pass an order raising an attachment but this does not mean that the order of attachmfnt passed by him in case of emergency is an interlocutory order, because the attachment of the subject of dispute does not automatically cease upon there having been no longer any likelihood of a breach of peace. The wordings “may withdraw attachment at any time” clearly indicate that the Magistrate has a discretion to pass an order raising an attachment whenever he is satisfied that there is no longer any apprehension of breach of peace. The discretion of course has to be exercised in a judicial manner. Likewise the provisions that in the event of a receiver being subsequently appointed by any civil court in relation to the subject of dispute the Magistrate shall hind over the possession thereof to the receiver appointed by the civil court and discharge the receiver appointed by him do not change the complexion of the order passed under sub-sec. (1) of sec. 145. Cr. P.G and do not make it essentially an interlocutory order. It appears that this provision is inserted in the new Code in order to avoid conflict of jurisdiction because it is obviously undesirable that two receivers are appointed by different courts to take possession of or exercise any control over the same properties. Hence the preliminary objection raised by Mr. Tibrewal is overruled and it is held that the order being not an interlocutory order is revisable by this Court under sec. 397 read with sec. 401, Cr. P.C

9. On merits, it has been contended before me by the learned counsel for the petitioners that even if the claim of party No. 2 is accepted on the face of it as true, it amounts to a claim regarding undivided share in the disputed land and the sub-Divi-sional Magistrate had no jurisdiction to institute proceedings under sec. 145, Cr. P.C in such cases as the dispute was between Co Khatedar tenants regarding joint possession of the subject of dispute. In support of his above contention, the learned counsel for the petitioner has placed reliance on Nahar Singh v. The State (2) wherein it has been observed that no declaration of joint possession can be made u/s. 145, Cr. P.C Mr. Tibrewal on the other hand, argued that in the instant case there is no material on the record to show that party No. 2 has put forward a claim for joint possession of the land in dispute. According to his submission, party No. 1 claims exclusive possession over the land in dispute being only four sons of Bagta while party No. 2 claims to be in possession of their share of the land in dispute and, therefore, it is a question of disputed possession and does not fall out of the purview of S. 145, Cr. P.C I have given my anxious consideration to the above contentions. As stated earlier, the learned Sub-Divisional Magistrate, Khetri, has initiated proceedings under sec. 145, Cr. P.C on the basis of a report made to him by the Station House Officer, Bhuhana, on 11-7-1974. It appears from the record that the Station House Officer made an inquiry into the matter upon an application presented to him by Sheonarain and Surja members of party No. 2 In this application, it is clearly stated that the applicants are six brothers, namely, Sheonarain, Surja, Umrao, Kashi Ram, Sube Singh and Hazari and that they are cultivating the land in dispute jointly and that when Sheonarain and Surja Ram try to cultivate the land, Umrao, Mohar Singh, Kashi Ram etc. prevent them from cultivating it and are determined to beat them and so necessary action should be taken in the matter. It appears that the S ation House Officer recorded the statements of Sheonarain, and Surja Ram during the course of inquiry in which they stated that Umrao and Mohar Singh refused to divide the land although their father Bagta promised them to partition the land after the marriage of his son Hazari and his daughter. The learned Sub-Divisional Magistrate also did not state in the preliminary order that party No. 2 was in actual possession of a specific portion nf the property or some particular Khasra and that party No. 1 was in possession of the rest. He merely reproduced the contents of the report in his own language without ascertaining the true nature of the dispute. Consequently, I am of the view the learned Sub-Divisional Magistrate had no jurisdiction to institute proceedings under sec. 145, Cr P.C in such cases as according to party No. 2 itself the dispute is between co-khatedars relating to possession of an undivided share in the entire land under controversy. A similar view has been taken in Ghulam Shah v. Meerajuddin'(I). The proper order would have been to take action against the parties under sec 107, or sec. 144, Cr. P.C, as the case might be. In this view of the matter, the learned Sub Divisional Magistrate could not pass an order of attachment of the land in dispute under sec. 146, Cr. P.C, because proceedings under sec. 146, are in continuation of those under sec. 145, Cr. P.C and powers under this section cannot be exercised independently of it.

10. For the foregoing reasons, the revision-petition is accepted and the impugned order dated 12-7-1974 passed by the learned Sub-Divisional Magistrate, Khetri, containing the preliminary order and the order of attachment of the land in dispute is set aside.