Research › Browse › Judgment

Allahabad High Court · body

1985 DIGILAW 1045 (ALL)

Ram Sunder v. Tirath Ram

1985-10-30

PARMESHWAR DAYAL

body1985
JUDGMENT Parmeshwar Dayal, J. - This is a petition under Section 482 Cr.P.C. with a praye, to set aside the order dated 2191981 vide Annexure 3, passed by the Executive Magistrate, and the order dated 4121981 vide Annexure4, passed by the IIIrd Additional Sessions Judge, Bahraich. 2. The dispute relates to plot no. 1019 of village Bardehri Bhari Gaon of district Bahraich. The name of the petitioner Ram Sunder was entered in the remarks column of Khasra who has been in possession of the said plot since 1376 fasli. The original tenureholder, recorded, was Smt. Indra Prabha Kumari wife of Sri Yuotendra Kumar Bhanjdeo, resident of Kanka Rajvati Katak, Orissa. The opposite parties 1 and 2 Tirath Ram and Abhiran claimed title on the basis of a sale deed alleged to have been executed on 31101974 by Smt. Indra Prabha Kumari in their favour. The proceedings under Section 145 Cr.P.C. followed and the Executive Magistrate passed an order dated 11121974 under Section 146 (1) Cr.P.C. for attachment on the disputed plot. He passed another order on 2061975 for continuation of that attachment order till the rights of the parties are decided by a competent court. 3. Later on, the Executive Magistrate, on 2451978 passed an order releasing the disputed property in favour of the opposite parties 1 and 2, against which order the petitioner filed Criminal Revision No. 45 of 1978 which was allowed on 691978. 4. The matter regarding mutation was pending before the Naib Tehsildar who passed an order dated 1011977 for mutation in favour of the opposite parties 1 and 2. Against that order, the petitioner filed an appeal which was dismissed on. 531979 vide Annexure1. The opposite parties 1 and 2 filed a suit for declaration of title under Section 229B of the Zamindari Abolition & Land Reforms Act which is said to be still pending. 5. During the pendency of the aforesaid suit, under Section 229B of the Zamindari Abolition & Land Reforms Act, the opposite parties 1 and 2 moved an application for release of the attached property in their favour on the basis of mutation which was ordered on 1011977. Their application was dismissed on 691978. Then, they moved an application for review which was dismissed on 1031985. But the opposite parties 1 and 2 were allowed to reagitate the matter. Their application was dismissed on 691978. Then, they moved an application for review which was dismissed on 1031985. But the opposite parties 1 and 2 were allowed to reagitate the matter. Consequently, the attached property was released in their favour by means of an order dated 2191981. Against this order dated 2191981, the petitioner filed a revision which was dismissed on 4121981. 6. The contention of the petitioner is that even though his appeal was dismissed on 531979, it was observed in the judgment of that appeal that he has been in possession and that the statusquo should have remained the same till any declaration is made in favour of any party on the basis of the proceeding under Section 229B of the Zamindari Abolition & Land Reforms Act. 7. It has been contended on behalf of opposite parties 1 and 2 that the proceedings under Section 145 and 146 Cr.P.C. were confined to the decision on the point of possession only and they were covered by the mutation proceedings also which mutation proceedings are based upon occupation. Against this the learned counsel for the petitioner argued that the decision in mutation proceedings refers to a person as to who has to pay the land revenue. 8. The position is that after the Criminal Revision No. 45 of 1978 was allowed, the order of attachment which was passed by the Executive Magistrate on 11121974 and dated 2061975 was to remain effective, these orders revived and the case was relegated to the position where it was on those dates. 9. The opposite parties 1 and 2 relied on the case of Vinai Kumar and others v. Om Prakash and another (1980 ALJ 524) in which it was held that mutation Court was a competent court to decide as to who was entitled to be in possession of the property attached. 10. On the other hand, the petitioner relied on the case of to Malkhan Singh v. Sohan Singh and others ( 1985 RD 336 ) in which it was held that there was a well settled principle that proceedings in revenue courts) do not entitle any rights or title of tenure holders. II. Thus, the position in this case has been that after the decision in Criminal Revision no. 45 of 1978 the attachment of the disputed property was to continue as such. II. Thus, the position in this case has been that after the decision in Criminal Revision no. 45 of 1978 the attachment of the disputed property was to continue as such. It was on the basis of the order dated 1011977 passed by the Naib Tehsildar in the mutation proceedings that the opposite parties 1 and 2 sought possession of the disputed plot and it was released in their favour. The suit under Section 229B of Act was still pending where in title of the rightful claimant was to be decided. 12. In view of all these facts, there has been an abuse of the process of court in this case as the Executive Magistrate was not expected to deliver possession of the attached property in favour of the opposite parties 1 and 2 before the decision in the suit under Section 229B of the Zamindari Abolition & Land Reforms Act, and this petition succeeds. 13. The petition is allowed and the order dated 2191981 and 4121981, passed by the Executive Magistrate and the Additional Sessions Judge, Bahraich respectively are set aside. The property in question shall remain attached as before.