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2010 DIGILAW 1509 (ALL)

Manjula And Another v. State of U. P. And Another

2010-05-07

NAHEED ARA MOONIS

body2010
Hon'ble Naheed Ara Moonis, J.:- The instant revision arising out of judgment and order dated 5.4.2007 passed by the Deputy District Magistrate, Nautanwa, Mahrajganj whereby proceedings under Section 145 Criminal Procedure Code in Case No. 20 (State of U.P. Vs. Smt. Manjula and others) has been dropped after recalling the order dated 7.4.2004 under Section 145 (1) Criminal Procedure Code and the order dated 12.4.2004 under Section 146 (1) Criminal Procedure Code. On 28.5.2007 while staying the further proceedings of the aforesaid order dated 5.4.2007 Hon'ble the Court has directed the matter to be placed before the Reconciliation and Mediation Centre, High Court, Allahabad holding that it would be appropriate to give the parties a chance to settle down the proceedings by reconciliation and mediation. After the matter was referred to the mediation centre several dates were fixed and thereafter the mediation was completed on 30.8.2007 but no agreement could be arrived at between the parties, hence the matter sent back for further appropriate orders. 2. I have heard the learned counsel for the revisionists, the learned counsel appearing for opposite party nos. 2 and 3 and the learned A.G.A. appearing on behalf of the State and have perused the record. 3. Learned counsel for the revisionists has strenuously argued that the order passed by the court below is absolutely illegal, unjust and against the evidence on record. The court below has committed manifest error in passing the order of dropping the proceedings under Section 145 Criminal Procedure Code. The court below has no power to review its own earlier order of attachment, which was confirmed by the learned Sessions Judge on 6.12.2005. Once the order of attachment was confirmed the same cannot be recalled or reviewed by the learned Magistrate. The proceedings under Sections 107 and 116 also initiated to avoid breach of peace and there was no fresh material or any evidence after the passing of order of attachment under Section 146 (1) Criminal Procedure Code yet giving finding that there is no imminent danger of peace is absolutely illegal and against the record. The proceedings under Sections 107 and 116 also initiated to avoid breach of peace and there was no fresh material or any evidence after the passing of order of attachment under Section 146 (1) Criminal Procedure Code yet giving finding that there is no imminent danger of peace is absolutely illegal and against the record. The court below has also erred in holding that there is dispute amongst the co-tenure holders and the civil suit before the revenue court is pending as such no interference can be made by passing an order under Section 145 Criminal Procedure Code and therefore the proceeding was dropped and the preliminary order was recalled is against the evidence on record. 4. On the other hand learned counsel appearing on behalf of the opposite party nos. 2 and 3 has contended that there is no illegality in the order passed by the court below. The proceedings under Section 145 Criminal Procedure Code are summary proceedings and the Magistrate has to see if all the parties are being forcibly or wrongfully dispossessed who was in actual possession two months prior to the passing of the order of attachment. It is admitted to the parties that one Ram Shanker was the original tenure holder of Khata No. 849 having area of 1.392 hectares, which is the subject matter of dispute in the present 145 Criminal Procedure Code proceedings. Rama Shanker's son Chandra Bhan pre-deceased leaving behind his widow Manjula who is the present revisionist No.1. The revisionist no.1 remarried during the life time of Rama Shanker to one Vishwanath and was residing with Vishwanath. Rama Shanker died leaving behind his widow Panwati and two daughters Kamlawati and Indrawati. Widow of Ram Shanker name was recorded in the revenue record as his widow became the tenure holder of the Khata in dispute. No dispute ever raised by revisionist no.1 claiming any share in the property in dispute after some time she filed a suit against the opposite parties 2 and 3. Opposite parties 2 and 3 had purchased part of the land from the grand sons of Panwati and since the time of execution of the sale deed the opposite parties 2 and 3 are in possession over the land in dispute. Opposite parties 2 and 3 had purchased part of the land from the grand sons of Panwati and since the time of execution of the sale deed the opposite parties 2 and 3 are in possession over the land in dispute. Despite the fact that the revisionist no.1 was not legal heir of Rama Shanker and has no right to claim over the disputed property as she had performed marriage after the death of first husband she yet moved an application under Section 145 Criminal Procedure Code to somehow create her ownership over the disputed land. 5. The revisionist no.2 Gajendra Nath according to the revisionist is in relation of Rama Shanker and was doing pairvi on behalf of the revisionist no.1 and the revisionist no.1 died during the pendency of this revision before this Hon'ble Court, therefore, an application was moved on behalf of opposite parties that the proceedings initiated at the instance of revisionist no.1 is abated. This fact was controverted by the learned counsel for the revisionist stating that the opposite party no.2 is the heir and legal representative of the applicant/revisionist no.1 in pursuance of will deed dated 9.12.2003, which is annexed as Annexure-1 to the counter affidavit filed in abatement application moved by the opposite parties 2 and 3, therefore it was contended by the learned counsel for the revisionists that this revision has not been abated and it is represented by the applicant no.2 who is already on record. It is further contended by the learned counsel for the opposite parties that the court below has correctly held that the plot in dispute is the same, which is the subject matter of suit under Section 229-B of Uttar Pradesh Zamindari Abolition and Land Reforms Act. 6. Learned counsel for the opposite party has also relied upon the judgment of the Apex Court in the case of Amrish Tiwari Vs. Lalta Prasad Dubey, 2000 (4) SC 466 wherein it has been laid down that the if parallel proceeding is pending before the civil court criminal proceedings should not continue. ?It is only in cases where the civil suit is for possession or for declaration of title in respect of the same property and where relief's regarding protection of the property concerned can be applied for and granted by the civil court the proceedings under Section 145 Criminal Procedure Code should not be allowed to continue. ?It is only in cases where the civil suit is for possession or for declaration of title in respect of the same property and where relief's regarding protection of the property concerned can be applied for and granted by the civil court the proceedings under Section 145 Criminal Procedure Code should not be allowed to continue. This is because case the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil court would be binding on the Magistrate in our view the Sub Divisional Magistrate was right in discontinuing the proceedings under Section 145 Criminal Procedure Code.? The learned counsel for the opposite party has also filed a copy of the plaint where the revisionist no.1 had sought the relief for declaring herself as co-bhumidhar of the disputed land. It was further contended by the learned counsel for the opposite parties that no order under Section 145 Criminal Procedure Code could be passed where there is a dispute with regard to joint possession or any one is claiming ones share in the property in dispute. The revenue court has only jurisdiction to decide the possession and title. 7. After considering the submissions of the learned counsel for the parties it appears from the record that the revisionist no.1 had moved an application under Section 145 Criminal Procedure Code that there is apprehension of breach of peace over the plot in dispute, therefore, the same may be attached and a receiver may be appointed. The Sub Divisional Magistrate on the said application had directed the concerned police to conduct enquiry and submit its report. In the meantime the land in question was attached. The opposite party no.2 had challenged the said order by filing revision before the learned Sessions Judge which was rejected on 6.10.2005 on the ground that the order under Section 145 (1) Criminal Procedure Code is purely interlocutory order and the revision is not maintainable. Since there was some over writing in the record of the court below to give benefit to either of the parties, therefore, the court below directed disciplinary action against the court official who had done the over writing. The revision of the opposite party no.2 was dismissed and the case was remitted back directing the court below to take appropriate action. The revision of the opposite party no.2 was dismissed and the case was remitted back directing the court below to take appropriate action. The police had submitted its report wherein it was found that the opposite party no.2 who is the purchaser of the land to the extent of 2.71 acres was in possession and from the perusal of the plaint under Section 229-B UPZA and LR. Act, which was filed by the revisionist no.1 against Om Prakash and others shows that she has claimed right and title as Co-bhumidhar on the disputed land. It was also mentioned in the police report that the revisionist no.1 is not residing there, which clearly shows that the opposite party no.2 is the purchaser of the land in dispute of an area 2.71 acre and they are in possession. The revisionists have claimed their title as co-tenure holder over the entire land along with the opposite party and the case is still pending before the revenue court, therefore, the court below has rightly concluded that no breach of peace was existing and the dispute relates to joint tenure holder, therefore, the proceedings under Section 145 Criminal Procedure Code cannot be proceeded. In these circumstances the court below has rightly passed the order dropping the proceedings under Section 145 Criminal Procedure Code and recalled its own orders dated 7.4.2004 and 12.4.2004 with the direction to both the parties to maintain status quo. The position of law is very clear that unless there is a formal partition in accordance with law amongst the parties, it cannot be held that any party is in exclusive possession of any part of the property. Section 145 Criminal Procedure Code requires specific finding about exclusive possession of a particular party. The revisionist no.1 has claimed joint tenure holder over the property in dispute, therefore, no order could be passed under Section 145 Criminal Procedure Code. Even if the case of the revisionist no.1 is taken to be true no proceeding can be initiated under Section 145 Criminal Procedure Code unless there is partition of the joint property as she herself admitted in the suit filed under Section 226 U.P.Z.A. & L.R. Act. Even if the case of the revisionist no.1 is taken to be true no proceeding can be initiated under Section 145 Criminal Procedure Code unless there is partition of the joint property as she herself admitted in the suit filed under Section 226 U.P.Z.A. & L.R. Act. If there is any preliminary order was passed in respect of the entire land belonging to the parties as was done in the present case by the Magistrate the final order cannot be passed in respect of the land, therefore, the dropping of the proceedings and the recalling of the order of attachment suffers from no illegality as it is not at all proved that the revisionist no.1 was the sole owner of the entire property. In Kailash Nonia Vs. Shibu Nonia reported in 1991 (2) Crimes 527. It has been held that the possession of one co-sharer of joint family property is possession of the other co-sharer. Unless there is partition by metes and bounds or there is a case of ouster, every co-sharer in law is deemed to be in possession of every little fraction of joint family property, irrespective of the fact that for the sake of convenience, the parties were cultivated separately different portions of lands belonging to their joint family. In Jayanti Prasad Vs. Kamal Narain, reported in 1998 (36) ACC 392, it has been held that in respect of joint property where mutual partition is not established, proceedings under Section 145 Criminal Procedure Code cannot be instituted. It was also held that where preliminary order was passed in respect of entire land belonging to the parties, the final order cannot be passed in respect of the part of the land. In Purana Chandra Biswal Vs. Brindaban Biswal reported in 1987 (3) Crimes 803 , 805 (Orissa), it has been held that where the dispute is with regard to the property in the joint possession of the persons, proceedings cannot be initiated under Section 145 Criminal Procedure Code since no member of a joint family can claim any part of the joint family property exclusively for himself. It goes without saying that the Magistrate deal with the summary proceeding like Section 145 Criminal Procedure Code cannot grant any relief by passing a prohibitory order in favour of any parties. It goes without saying that the Magistrate deal with the summary proceeding like Section 145 Criminal Procedure Code cannot grant any relief by passing a prohibitory order in favour of any parties. The learned Magistrate is fully empowered to withdraw/recall its own order at any time if the Magistrate is satisfied that there is no likelihood of breach of peace, therefore, the order passed by the court below suffers from no illegality or irregularity. 8. In view of the above facts and circumstances and the settled legal position this court is of the view that the dispute relates to the family property and the revisionists have absolutely failed to prove their possession or were in exclusive possession on any part of the property no order could be passed under Section 145 Criminal Procedure Code. There is no illegality or irregularity in the order passed by the court below in dropping the proceeding and recalling the order of attachment under Section 146 (1) Criminal Procedure Code. It is a discretionary power of the Magistrate based on his satisfaction that emergency exists for passing of an order under Section 146 (1) Criminal Procedure Code. The said order can be withdrawn, annulled or modified by him at any subsequent stage of proceeding on being satisfied that no emergency exists any longer. The order under challenge is interlocutory in nature. Hence, the revision is barred by Section 397 (2) Criminal Procedure Code against such an order. Therefore, the instant revision does not yield any fruitful result and is accordingly dismissed. The interim order is also vacated. The order of the court below dated 5.4.2007 is hereby affirmed.