Q. What provisions have been made in Cr.P.C. regarding the dispute in respect of land or water? [UPCJ. 2018]
In a civilised society, property conflicts should be addressed via the use of the law rather than by individuals taking the law into their own hands. If the Executive Magistrate is satisfied that the dispute connected to that property may lead to a breach of peace, then Section 145 is a measure to help prevent lawlessness among the populace and resolve issues linked to the property by taking an immediate action. The underlying objective is to maintain public order and tranquility. Land and water being immovable property, the disputes relating to them are governed under Section 145 which provides Procedure where dispute concerning land or water is likely to cause breach of peace. Section 146 provides the Power to attach subject of dispute and to appoint receiver and Section 147 Dispute concerning right of use of land or water.
As per Section 145, the EM can come to a conclusion as to the possession of the immovable property. He does not decide that who has the right over the property either possession-wise or ownership right wise, but EM decides who is in the possession during that particular point in time. If EM is unable to satisfy himself regarding the possession, then he/she may attach the property as per Section 146.
Under 145 a preliminary decree is passed.
It can be culled out that EM can pass a preliminary order upon recording his satisfaction that a dispute may likely cause a breach of peace, so to avoid that a preliminary order is passed. Due importance has been paid to the jurisprudential concept of possession that possession is nine points of law.
Under Section 145 the only thing is decided by EM is who was in the actual possession of the immovable property as on the date of the order passed by him. Here the proceedings are done to take cognizance of the dispute and to settle the same by holding an inquiry into the possession which is different from deciding which party has the right to possession or right to the title. It was held in the case of Shanti Kumar Panda v. Shakuntala Devi (2004) 1 SCC 438 that the proceedings under Section 145 and 146 are quasi civil, quasi-criminal in nature, or an executive on police action.
The purpose is to provide a speedy and summary remedy. The EM is restricted in that his Preliminary Order will preserve the status quo regarding possession until the entitlement to possession is decided by a competent Court. As a result, the EM does not rule on the allegation of right to possession or title. So EM decides on possession simpliciter, and he will take cognizance only if there is a probability of breach of the peace at the moment the preliminary order is issued.
Under Subsection 4 to Section 145, the EM decides as who was in the possession of the property on the date of passing of the preliminary order and such person in whose favor the preliminary order is passed cannot be evicted except by the due course of law. i.e the preliminary order passed under 145 bars anyone from evicting the possession holder as decided by the EM not to be taken out forcefully
An order passed under section 145 is admissible in evidence to show that
- There was an Existence of a dispute regarding that particular property,
- the dispute was between particular parties,
- it led to the passing of a Preliminary Order,
- that the Magistrate found one of the parties to be in possession or fictional possession of the disputed property on the date of the preliminary order.
The reasoning recorded by the Magistrate or other findings arrived at by him have no relevance and are not admissible in evidence before the competent court and the competent court is not bound by the findings arrived at by the Magistrate even on the question of possession though, as, between the parties, the order of the Magistrate would be evidence of possession. The finding recorded by the Magistrate does not bind the Court.’
Therefore, the competent court may arise at a decision that is inconsistent with the decision passed by the EM and the Competent court is not bound by the order of EM passed under Section 145 and section 146.