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2010 DIGILAW 1582 (ALL)

Anuragi Devi & Others v. State of U. P. & Others

2010-05-13

S.C.NIGAM

body2010
Hon'ble Subhash Chandra Nigam, J.:- Heard Sri Anurudh Chaturvedi, advocate holding brief of Sri Arun Kumar, learned counsel for the petitioners, Sri A.K. Shukla, learned counsel for respndent no.3, learned A.G.A. for the State and perused the record. 2. This writ petition has been directed against the order dated 3.8.09 passed by Sub-Divisional Magistrate, Sadar, Gorakhpur in case no.47/62 under Section 145 Cr.P.C. by which the proceedings under Section 145 Cr.P.C. have been dropped. Feeling aggrieved with the order dated 3.8.09, the petitioners preferred a criminal revision no.168 of 2009 which has been dismissed vide order dated 11.2.2010. 3. The brief facts giving rise to this writ petition are that Ram Bharose and Mahadev were sons of Isari. The petitioners are the grand sons of Isari. Mahadev son of Isari was the owner of the property in dispute. It is alleged that Mahadev executed a registered sale-deed in favour of Smt. Jagdamba on 9.12.77. According to respondent no.3, she is the daughter of deceased-Mahadev. The case of the petitioners is that Mahadev had died issuless. Smt. Jagdamba is not daughter of Mahadev. The registered sale-deed dated 9.12.77 purported to have been executed by Mahadev in favour of Smt. Jagdamba is a forged documents. A suit for cancellation of the said sale-deed was filed by the petitioners which was dismissed. The petitioners preferred an appeal which was also dismissed. The second appeal was preferred in this Court. During the pendency of the second appeal, the consolidation proceedings in the village commenced and the second appeal was abated. In the course of consolidation proceedings, the parties preferred their respective claims before the Consolidation Officer. The Consolidation Officer, Rustampur, Gorakhpur vide order dated 19.1.09 passed in case no. 843 to 845 under Section 9 (Ka) (2) of the U.P. Consolidation of Holdings Act directed that the name of respondent no.3 be recorded in the revenue record on the basis of the impugned sale-deed. 4. It is being submitted by learned counsel for the petitioners that no-one is in possession over the property in dispute as per report of the Tehsildar. There is likelihood of the breach of peace. 5. In response to it, learned counsel for respondent no.3 submits that since the matter is sub-judice before the Consolidation Authority, the proceedings under Section 145 Cr.P.C. cannot continue and learned Sub. Divisional Magistrate was justified in passing the impugned order dated 3.8.09. There is likelihood of the breach of peace. 5. In response to it, learned counsel for respondent no.3 submits that since the matter is sub-judice before the Consolidation Authority, the proceedings under Section 145 Cr.P.C. cannot continue and learned Sub. Divisional Magistrate was justified in passing the impugned order dated 3.8.09. He has placed reliance in the decision of the Apex Court reported in AIR 1985 Supreme Court-472. The Hon'ble Supreme Court has held that when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding under Section 145 of the Code, would not be justified. The parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. 6. Learned counsel for respondent no.3 has also relied in the decision of this Court reported in 1995(2) JIC 1702 (Alld) wherein it has been held that there appears to be no justification to continue the proceedings under Section 145 Cr.P.C. as the parties are seeking their redress in consolidation courts. 7. Indisputedly, the Consolidation Courts are seized with the dispute and hence a parallel proceedings should not continue under Section 145 Cr.P.C.. 8. In view of the above, I do not find any merit in the writ petition. The writ petition is dismissed accordingly.