Proceedings U/S 145 CrPC Not A Substitute For Recovering Possession Of Property: J&K High Court

A bench comprising Justice Javed Iqbal Wani emphasized that the scope of Section 145 CrPC is limited to determining which party was in possession at the time of filing the application or two months prior to it, without delving into the ownership or rights of the parties involved.

The case arose from a dispute between two parties over the possession of a shop in Jammu. The respondent, claiming to be a tenant, alleged that he was forcibly dispossessed by the petitioners during the night of November 17-18, 2022. Following this, the respondent initiated proceedings under Section 145 CrPC before the Tehsildar Jammu on January 19, 2023, alleging that there was a threat of breach of peace due to the dispossession.

The Tehsildar, upon considering the matter, ordered that the proceedings be held in abeyance until the outcome of a civil suit already pending between the parties regarding the shop.

Dissatisfied with this decision, the respondent filed a revision petition before the Additional Sessions Judge, Jammu, who overturned the Tehsildar's order and directed him to proceed with the case.

The petitioners then approached the High Court seeking quashing of the Additional Sessions Judge's order.

After hearing the arguments Justice Wani made critical observations about the misuse of Section 145 CrPC and reiterated the limited purpose of this section, stating,

“Section 145 CrPC provides for a summary procedure to resolve disputes relating to land or buildings to prevent a breach of peace. A Magistrate under this provision is only concerned with determining which party was in possession on the date of the application or two months prior thereto.”

Further, the Court explained,

“Proceedings under Section 145 CrPC cannot be made a substitute for an action of recovery of possession of a property where the dispute pertains to the title of the parties over the said property as the scope of enquiry under Section 145 CrPC is limited to the question as to who was in possession on the date of application or two months prior thereto irrespective of the question as to rights of the parties”

The High Court took issue with the findings of the Additional Sessions Judge, which indicated that the petitioners had taken the law into their own hands by locking the shop, even though the nature of the proceedings was limited to possession. Moreover, the revisional Court had ordered the shop to be locked and unlocked during the pendency of the revision petition and instructed the Tehsildar to decide the possession issue.

While acknowledging that the revisional Court was correct in setting aside the Tehsildar's order, the court held that the observations regarding the petitioners' alleged unlawful actions were unwarranted.

“.. The instant petition deserves to be allowed in so far as challenge to the impugned order qua the aforesaid observations made and the findings recorded by the revisinoal Court including the directions of locking of the shop, unlocking of the same and making of the list of items lying in the shop by the SHO concerned are concerned”, the court remarked.

With regard to the operational part of the order the court upheld the revisional Court's direction to the Tehsildar to decide the possession issue afresh, without making any determinations on the rights or title of the property.

Accordingly the petition was disposed off.

Case Title: Himashu Gupta Vs Sohani Ram

Citation: 2024 LiveLaw (JKL) 271

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