Laxmi Singh Gaur v. Komal Singh Alias Inderman Singh And ORS.

A^ IN THE HIGH COURTOFCHHATTISGARH AT: BILASPUR S^-^Fi CR.R.No. ^:^<5-OF2013 ( -APPLICANT:

Laxmi Singh Gaur, aged 58-years, wife ofShri (Complainant) Radheshyam Singh Gaur, resident of village and • '"6 P.S.

Bhakhara, tahsil Kumd, district Dhamtari

VERSUS

...•• ^fe?^ €^e> (C.G.) < RESPONDENTS:

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1. Komal Singh alias Indennan Singh, aged 65 years, son of ( late Shri Prayag Singh Gaur,

2. Laxmi'Bai alias Munni Bai, aged 55 years, wife ofKomal Singh Gaur, ^ <-

3. Sagar, aged 18 years, son ofKomal Singh Gaur, All above are residents ofvillage&P.S. Bhakhara, tahsil Kurud, district Dhamtari (C.G.) ^

4. Ganesh Ram Mouryawanshi, aged 70 years, ^

5. Khomeshwar, aged about 40 years, son of Ganeshram Mouryawanshi, ^ Both are residents of village Semra, P.S. Bhakhara, • »5t-i tahsil Kumd, district Dhamtari (C.G.) fAccused) CRIMINAL REVISION UNDER SECTION 192 R/W 401 - OF THE CODE OF CRIMINAL PROCEDURE. 1973, ^.

Against the judgment/order ofdischarge passed in CR. R. ^'

^ ^ ^^ No.

5/2013 (Komal Singh & others v.

Laxmi Singh) on 16.7.2013 by the Additionai Session Judge (F.T.C.), Dhamtari. Arising from CR. Complaint Case No. 667/2012 (Laxini Singh v. Komal Singh & others) order passed on 19.12.2012 by ^ J.M.F.C. Kurud, district Dhamtari (C.G.).

^.\ Laxmi Singh Gaur VBRSUS Komal Singh aKas Inderman Singh 8s others RBVISION UNDBR SBCTION 397 READ WITH SECTION 401 OF THE CODE OF CRIMBIAL PROCEDURE. 1973 Mr. Somnath Verma, Advocate, for the Applicaat. Mrs. Anju Ahuja, Advocate, for Respondents No.l, 2, 3 & 5 y, J.) (1) Heard finally.

By way of instant criminal revision, applicant has challenged the order dated 16.7.2013 passed by Additional Sessions Judge (F.T.C.), DhsLmtari, in Cr.R. No. 5/2013. (3) Brief facts of the case are that the husband of the appllcant, nam.ely Radheshyam Singh Gaur, is the real brother of respondent No.l - Komal Singh. That there is a dispute in respeet of the suit prqperty in Khasra No.713, Rakba 7.48 hectare, out of which the dispute is in relation to 1980 Sq. Ft. of land in the above said Khasra number. As regards the dispute between the two brothers, a suit being Civil Suit No.61-A/2009 has already been filed by the respondents and that civil suit is still pending consideradon before the Clvil Court to be fuially adjudicated upon. (3.1} In the said civil suit, on 7.11.

2009 the Civil Courfe initially granted a temporary injunction in favour of plaintiffs (respondents herein) of restrainmg the respondents from entering into the said suit property. Against the said temporary injunction granted on 7.11.2009, the appllcant herein had preferred an appeal being M.C.A. No. 13/2010 and the appellate Court vlde its order dated 8.9.2010 had quashed the sald order of temporaiy injunction granted by the Civil Court.

-2- <^^, (3.2) Against the said order dated 8.9.2010, therespondents.had prefen-ed awritpetition being W.P. (227) No. 143/2011 and.in the sald writ petition on 12. 1.2011 this Court had passed an order to maintaln status quo as obtained today with regard to the suit. property. The sald writ petitlon is also still peading before :this Court for consideration.

(3-3)1n between it is alleged that on.l3.1S.2009, respondents/plaintlffe entcred upon the suit premiscs (in respect of the share allegedly claimed by the present applicant to be her Isuid) and broke open the lockput on the door ofthe said building and entered into the room and dismantled the wooden fixtures, windows, doors etc., and also took away agrlcultural produces, seeds and equipments stored in the said room, and the said articles removed from the sald suit premises were later on kept at the premises of respondent No;4 - Ganesh Ram Mouryawanshi.

(3.4) Against the said incident occurred pn 13.12.2009, the present applicant had flled a complalnt case on 24.t2.2Q©9 before the J.M.F.C., Kurud, whlch was regstered as Criminal Complaint Case No.667/2012. The J.M.F.C., Kumd, vide its order dated 19.12.2012 framed charges against the rcspondents for havmg committed the offences punishable under Seetipns 451, 379, 427 rcad with Section 34 of IPC.

(3.5) The sald order dated 19.12.2012 was pyt te chaUenge by the respondents in a erimlnal revision being Cr.R. No.5/2013 before the Court of Additional Sessions Judge (F.T.C.), Dhamtari, and the said Court vide its order dated 16.7.2013 has quashed the order dated 19.12.2012 passed by J.M.F.C., Kurud, aind has dlschai^ed the re^ondents from the offences punishable zmder Sectlons 451; 379, 427 read wlth Section 34 ofIPC. It is this order dated 16.7.2013 passed by Additional Sessions Judge (F.T.C), Dhamtari, which has been challenged by the present applicant by way of instant criminal reyiaon.

-3- '^ Leamed counsel for the appticant submits that the reasons given by the Addidonal Sessions Judge (F.T.C.), Dhamtari, in passing the unpugned order, is not sustalnable for the reason that thc Court below has given a reason of a tem.porary injunction having been passed in favour of the respondents and that the nature of the dispute being of civil nature, no offence is made out thereby unpugned order dated 16.7.2013 discharging the respondents from the offences punishabte under; Sections 451, 379, 427 read with Sectlon 34 of IPC was passed. Leamed counsel for the appllcant further suhmits tliat a civil dispute is entirely different from. that of a criminal case and that both, civil suit and criminal case, can go simultaneouslv.

Leamed counsel for the applicant also suhinite that in spite of the fact that there mlght have been an order pf uTJunction in favour of the respondents but that by itself does not atlow them to enter into the house of the applicant and take away the articles stored in the room as well as dismantle the room and take away the wooden ffactures to the sald rooin also. The said aet on: the part of the respondents clearly is an act of trespass as well as of theft. Therefore, it was for this reason that the appMcaBt had filed a.criminal complaint euad of which the J.M.F.C., Kurud, had taken cognizance and charges were framed agaui.st, respondents.

On the other hand, leamed counsel for the respondents, opposing the Instant criminal revision, submits that m spite of the fact that the appellate Coi-irt has set aside the order of temporary injunctlon dated 7.11.2009 vide its order dated 8.9.2010, but thls Court in W.P. (227) No.143/2011 has already ordered that the parties shall maintain status quo as obtalned today in respect of the suit property. The said writ getttion is still pendingconsiderationbeforethisCourt.

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Leamed counsel for the respondente Jurther submits-thafe even otherwise all that the respondents h.a.ve done in the suit premises is that the portlon of house whlch gofc damaged.on account of the widenlng of the road had to be reconsfcructed and It was for this reason that the respondents had constructed a small toilet in the sald area which was necessary suid that whatever articles and fixtures which have been removed from the sald room, have been placed safely in the premises of fespondent No.4 and which 1s also an admitted fact as per the contents ma.de in the coinplaint case itself by the present applicant. LeaTned counsel for the respondents also submits that these properties are sdll lying in the premises of respondent No-4 and that they had never intended of selling the saine or have sold it rather it is kept safely in the preinlses of respondent No.4.

(10) Taklng into consideratlon the submissions put forth by the counsel appearing for the either side, the fact whlch appears te that admittedly there is a dispute between the parties In respect of the title over the suit property and for that a Civil Sutt No.6lA/2009 has ah-eady been filed and is pending consideration before the Civil Court. At the sam.e tlme, a dispute which arose from. the order passed in application under Order 39 (1) (2) wherein initlally the Clvil Court had passed an order of teinporaiy injunction in favour of the plaintiffs, which has been challenged before this Court and thls Court had also ceased the matter in W.P. (227) No. 143/201 1. TTius, a dispute in respect of the titte of the suit premises as well as the veracity and validity of the order of temporaiy mjunctlon passed by the Civil Court on 7.11.2009, both are under consideration before the Civil court as well as in this Court.

(11) In my oplnion the order passed by the Court below in passing of the order dated 16.7.2013 though not properly worded but the order 1s correct to the extent that stnce thcre is a dispute in respect of the title and ownership of the suit property and that

t"<i.:.

-5the dlspute is pendlng consideratlon both at the CMl Court levet as well as in the writ petition before this Court, it would nothave been appropriate at that juncture for the trial Court for having initiated a case against the respondents for offences punishable under Sectlons 451, 379, 427 read wlth Section 34 of IPC. Moreover, the com.plainant in her complaint itself has admitted the fact that whatever articles that have been removed from fee suit premises are still kept in the premises of respondent No.4Ganesh Ram Mouryawanshi, which itself janmu/arie establlshes the fact that there is no case of theft and for that matter the properties have also not been sold.

(12) In view of the above, the criminal revision being devold of merits is dismlssed at motion stage itself. No order as to costs. , Sd/- P. Sam Koshy Judge tekirf