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2002 DIGILAW 1825 (ALL)

Ram Lakhan v. State of Uttar Pradesh

2002-12-04

Y.R.TRIPATHI

body2002
( 1 ) THIS revision is directed against an order dated 18-1-1994 passed by Sri S. N. Singh, the then Sessions Judge, Banda, whereby he having allowed the revision No. 93 of 1993 Ayaz Ahmad and another v. Daya Ram and 8 others, has set aside the order dated 13-10-1993 passed by the then S. D. M. Banda and has further held the appeal No. Nil of 1993 Ram Vishal v. Ayaz Ahmad and others filed by the revisionists to be not maintainable. ( 2 ) THE skeleton facts necessary to get hang of the controversy involved in this revision are that on an application of Afaq Ahmad predecessor-in-interest of respondents 2 and 3 about there being an apprehension of breach of peace from one Sheokanth Singh, predecessor-in-interest of revisionists with respect to possession of plot Nos. 319 area 3. 27 acres and 315 area 3. 34 acres situated in village Laumar within police circle Chilla of District Banda, the then Executive Magistrate Banda, drew a preliminary order under S. 145 of the Code of Criminal Procedure requiring the parties to put in their written statements of respective claims as respects the facts of their actual possession over the aforesaid plots. As it appears both the parties to the proceeding appeared before the learned Magistrate, filed their respective claims of possession and adduced evidence in support thereof. The learned S. D. M. Banda having failed to decide the possession of either party on the date of preliminary order, attached the plots in question till the decision of a competent court and placed them into supurdgi of a supurdar. As it transpires, while the aforesaid plots were still in custodia legis i. e. in the supurdgi of the supurdar. Respondents 2 and 3 got themselves mutated in revenue records by an order of Naib Tahsildar, Papreda in a proceeding under Ss. 33 and 34 LR Act in case No. 66 Afaq Ahmad and another v. Sardar Singh and others and made an application to the S. D. M. Banda for release of the disputed plots in their favour. The learned S. D. M. Banda through his order dated 30-9-1993 released the disputed plots in favour of the respondents 2 and 3. 33 and 34 LR Act in case No. 66 Afaq Ahmad and another v. Sardar Singh and others and made an application to the S. D. M. Banda for release of the disputed plots in their favour. The learned S. D. M. Banda through his order dated 30-9-1993 released the disputed plots in favour of the respondents 2 and 3. After the revisionists came to learn about the said order of 30-9-1993, they moved an application on 13-10-1993 for cancellation or recall of the said order on which the learned S. D. M. Banda issued notice to respondents 2 and 3 fixing 16-10-1993 for disposal. Aggrieved from this order of the learned S. D. M. , respondents 2 and 3 preferred a revision No. 93 of 1993. The revisionists also preferred an appeal challenging the order of S. D. M. Banda dated 30-9-1993 directing the release of the disputed plots in favour of respondents 2 and 3. The learned Sessions Judge heard the said revision No. 93 of 1993 filed by the respondents 2 and 3 and the appeal preferred by the revisionists against the order of the S. D. M. dated 30-9-1993 together and passed the impugned order, dissatisfied from which the revisionists have come up in this revision. ( 3 ) I have heard learned counsel for the parties and the learned A. G. A. and have also gone through the materials on record. ( 4 ) IT was strenuously urged by the learned counsel for the revisionists that the learned court below has committed an illegality in accepting the revision No. 93 of 1993 Ayaz Ahmad and another v. Daya Ram and 8 others as the order dated 30-9-1993 was passed on their back and was illegal and violative of natural justice. It would be found that after attachment of the disputed plots, concerned parties had litigated before the revenue court for getting their names mutated and after a keen contest between them the names of the respondents 2 and 3 were recorded in the revenue records and it was thereafter that on the basis of the order passed by the revenue court respondents 2 and 3 made an application to the S. D. M. Banda for release of the disputed plots in their favour. True, that the proper course for the S. D. M. Banda was that he should have decided the application of respondents 2 and 3 after giving the revisionists an opportunity of hearing, but no prejudice appears to have been caused to the revisionists as they had unsuccessfully contested the proceeding under Ss. 33 and 34 of the L. R. Act and the revenue court had directed the mutation to be made in favour of respondents 2 and 3. In a proceeding under Ss. 33 and 34 of the L. R. Act, the possession of a party is also looked into and considered. Even till date the revisionists have failed to prove that they are in any way entitled to possession over the disputed plots. Thus despite the fact that the order dated 30-9-1993 was passed at the back of the revisionists without affording them an opportunity of hearing still no prejudice appears to have been caused to them and it would be a futile exercise to open the matter after such a long interval when the revisionists can get their title in respect of the disputed plots decided by a competent court and if found entitled to possession can also be put into possession. It is settled law that revision does not lie against an interlocutory order. The learned court below thus by entertaining the revision and quashing the order dated 13-10-1993 was though not legally justified but no purpose would be served by quashing the impugned order on this point as it will unnecessarily open fresh futile litigation between the parties without any result. So far as the second part of the impugned judgment of the Sessions Judge is concerned, whereby he has held the appeal filed by the revisionists to be not maintainable, I see no infirmity or illegality in it. ( 5 ) UNDER S. 454 of the Code of Criminal Procedure an appeal could have been filed against the orders made under Ss. 452 and 453 of the said Code. The order of learned S. D. M. Banda dated 30-9-1993 by which he withdrew the attachment and directed the release of the disputed plots in favour of respondents 2 and 3 had purportedly been passed in exercise of his powers under S. 146 of the Code of Criminal Procedure. 452 and 453 of the said Code. The order of learned S. D. M. Banda dated 30-9-1993 by which he withdrew the attachment and directed the release of the disputed plots in favour of respondents 2 and 3 had purportedly been passed in exercise of his powers under S. 146 of the Code of Criminal Procedure. Thus apparently the order dated 30-9-1993 was not appealable under S. 454 of the Code of Criminal Procedure, and the learned Sessions Judge has rightly held so and dismissed the appeal. Thus on an overall consideration of the facts of the case. I find no justification for any interference in the order of the Sessions Judge sought to be revised. ( 6 ) THIS revision, thus being devoid of any merit, deserves to be dismissed and is, accordingly, dismissed. Application dismissed. . .