Friday, 9 September 2016

Whether finding given by court in proceeding U/s 145 of CRPC is binding on civil court?

The   proceedings   under   Section   145   of   the   Criminal
Procedure Code are by way of stop gap or interim arrangement
till the competent  Civil Court is approached by  either of the
party for to decide the issue of possession of the suit one way or

the other   and   as such  decision  by   the  criminal Court  in  the
criminal proceedings is purely provisional or temporary in nature
until a decision is given from the competent Civil Court as to the
legal right to possession of the suit property.  As such criminal
proceedings, therefore, would no longer survive once the decree
for possession is passed by the competent Civil Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.157 OF 2015
Balu @ Balasaheb Bapurao Khawal,

Vs
Subhash Pundlikrao Jadhav,

CORAM : A. P. BHANGALE, J. 
DATE : AUGUST 14, 2015
Citation: 2016(4) ALLMR 149

1. Heard learned counsel for the rival parties.
2. It appears that the respondent/plaintiff had instituted
Regular Civil Suit No.212  of 2010 on the basis of his title and he
prayed for possession in the said suit of the agricultural land.

The   said   Regular   Civil   Suit   No.212   of   2010   was   decided   on
29.11.2011 and decreed for possession by learned 3rd Joint Civil
Judge Junior Division, Amravati.  The appellant/ defendant had
preferred Regular Civil Appeal No.11 of 2012.  The said appeal
was dismissed on 29.9.2014.
3. Thus,   the   decree   for   possession   of   the   suit   field,   as
granted by the Trial Court, was confirmed since the appeal was
dismissed.
4. The suit was in respect of an agricultural land having
Gat No.176, situated at Mouje Nandura (Lashkarpur), Pragane
Nandgaon   Peth,   Taluka   and   District   Amravati.     The
respondent/plaintiff   had   pleaded   his   case   that   after   his
retirement   he   had   purchased   the   suit   property   from   the
appellant/defendant on 6.6.2001 and the appellant/defendant had
put the respondent/plaintiff in possession of the suit field.    The
respondent/plaintiff also mutated his name by applying to the

Revenue Authorities on the basis of the registered sale deed,
executed   between   the   respondent/plaintiff   and   the
appellant/defendant.  He had obtained the Crop Loan as well as
the   State   Government's   Aid   in   the   form   of   seeds   etc..     The
appellant/defendant,   on   28.11.2005,   made   a   false   complaint
alleging that the transaction with the respondent/plaintiff was
not   of   sale   of   the   suit   field   but   it   was   of   money   lending
transaction.  The said complaint was rejected on 29.3.2006.
5. Another   complaint,   made   by   the   appellant/defendant
before   the   Assistant   Registrar   Co­operative   Societies   in   July,
2006, was also rejected.  Pending disposal of the complaint, the
appellant/defendant   had   removed   the   boundary   marks   and
raised   dispute   before   the   Nayab   Tahsildar   alleging   that   the
appellant/defendant was in possession of land having 0.95 HR
out of total area of land 1 H 76 R of field Survey No.176.
6. The criminal proceedings bearing Criminal Case No.2 of

2006 under  Section 145 of the Criminal Procedure Code was
registered and the spot inspection was also carried out.  The Sub
Divisional   Magistrate   passed   an   order   in   the   absence   of   the
respondent/plaintiff that the appellant/ defendant was found in
possession of the suit field. 
7. The respondent/plaintiff had also moved the Honourable
High Court by filing a criminal application under Section 482 of
the Criminal Procedure Code.   The High Court, on 31.3.2010,
had disposed of application whereby the respondent/plaintiff was
granted opportunity to approach the Civil Court.  
8. Thus, the civil suit was filed by the plaintiff on the basis
that the respondent/plaintiff was the lawful owner pursuant to
the   registered   sale   deed,   executed   between   the
respondent/plaintiff and the appellant/ defendant, in his favour
and pursuant to which respondent/plaintiff was put in actual
possession of the suit property by the appellant/defendant. Under

these   circumstances,   Regular   Civil   Suit   No.212   of   2010   was
decreed in favour of the respondent/plaintiff and the said decree
attained finality after Regular Civil Appeal No.11 of 2012 was
dismissed.   Factum of actual physical possession was thus in
favour of the plaintiff by concurrent finding by both trial and
First Appellate Court.
9. Under  these circumstances, there was nothing  wrong
when the respondent/ plaintiff, on the basis of his registered sale
deed   executed   between   him   and   the   appellant/defendant,
approached the competent Civil Court for execution of decree of
possession   which   became   final   according   to   the
respondent/plaintiff.
10. The   proceedings   under   Section   145   of   the   Criminal
Procedure Code are by way of stop gap or interim arrangement
till the competent  Civil Court is approached by  either of the
party for to decide the issue of possession of the suit one way or

the other   and   as such  decision  by   the  criminal Court  in  the
criminal proceedings is purely provisional or temporary in nature
until a decision is given from the competent Civil Court as to the
legal right to possession of the suit property.  As such criminal
proceedings, therefore, would no longer survive once the decree
for possession is passed by the competent Civil Court.
11. That being so, the pleading at this stage on the part of
the appellant/defendant that the suit transaction of registered
sale deed was a money lending transaction, cannot be accepted.
The remedy, if any, if so advised may be to file an independent
civil suit for declaration that the registered sale deed executed by
the appellant/defendant in favour of the respondent/plaintiff is
not binding between the parties and for consequential reliefs.  No
ground is made out to interfere with the concurrent findings of
facts.
12. In view of above, I do not find any substantial question

of law in the present case so as to entertain the second appeal.
Furthermore, it is not a matter of right for the party to approach
this Court under Section 100 of the Civil Procedure Code unless
there is substantial question of law formulated in the memo of
appeal which must be acceptable and deserving to be  considered
in second appeal according to law.  The second appeal, therefore,
fails and is dismissed with costs.
                                                                JUDGE

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