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Gujarat High Court · body

2015 DIGILAW 179 (GUJ)

MIYA IBRAHIM MEHMAND NADTA v. STATE OF GUJARAT

2015-02-12

J.B.PARDIWALA

body2015
JUDGMENT : 1. A long drawn civil dispute which ultimately culminated in various litigations in the form of Revenue proceedings and a Civil Suit for declaration of title is sought to be given the colour of a criminal offence. 2. By this application under Sec. 482 of the Code of Criminal Procedure, 1973 (for short “the Code”) the applicant –original accused seeks to invoke the inherent powers of this Court praying for quashing of the First Information Report registered at Chikhli Police Station, District: Navsari vide C.R.No.I-166/2007 of the offence punishable under Sections 181, 192, 193, 196, 384, 447, 427 r/w sec. 114 of the Indian Penal Code. 3. It appears from the materials on record that on 4/8/2008 while admitting the petition, the following order was passed. “Admittedly, the civil dispute arising out of the land in question for which the allegations have been made against the applicant of illegal trespassing on the land, on the basis of some fake documents, where the suit is filed, which is pending before the Principal Civil Judge, Gandevi Civil Court as Special Civil Suit No.11 of 2007. On 7.1.2008, the Principal Civil Judge, Gandevi Civil Court made prima facie observations that though title is in the name of the defendant, prima facie possession is established by the plaintiff against which the private respondent has preferred an appeal, which is pending. In the above circumstances, Rule returnable on th October, 2008. Mr. K.T. Dave, learned APP, waives service of rule on behalf of the respondent No.1 –State and Mr. Zubin Bharda waives service of rule on behalf of respondent No.2. Interim relief with regard to the impugned FIR is hereby stayed till further order.” Thus, since 2008 the proceedings have remained stayed. 4. The case of the respondent no.2 the first informant may be summarized as under:- 4.1 The first informant claims that he is the power of attorney holder of one Bai Hawaboo. Bai Hawaboo is the wife of Late Ismail Fakir Bala. It is the case of the first informant that he is residing along with his wife and two sons with his maternal aunt, namely, Hawaboo. The dispute pertains to an immovable property in the form of land bearing Block No.471/472 paiki. This land was owned by one Purshottambhai Ishwarbhai. Bai Hawaboo is the wife of Late Ismail Fakir Bala. It is the case of the first informant that he is residing along with his wife and two sons with his maternal aunt, namely, Hawaboo. The dispute pertains to an immovable property in the form of land bearing Block No.471/472 paiki. This land was owned by one Purshottambhai Ishwarbhai. The husband of Hawaboo, namely, Late Ismail Fakir Bala purchased the said parcel of land from Purshottambhai by way of a sale deed dated 31/8/1949. Hawaboo, the maternal aunt of the first informant has no issue. 4.2 It appears from the materials on record that on consolidation of the Block No.471 and 472, a new Survey Number was given being Survey No.713. Thus, the original block No.471/472 on consolidation became Survey No.713. The Survey No.713 admeasures 4 Hectors and 65 Gunthas. It also appears that during the life time of Ismail Bala, his sister, namely Khatija put forward a claim as regards her share in the property. A Regular Civil Suit No.34/1965 was filed in that regard for partition. The property was ultimately partitioned. Ismail Bala got 3/4th share in the property whereas his sister Khatija got 1/3rd share. It also appears that out of the 3/share derived by Ismail Bala he transferred 27 Gunthas of the said land in favour of one Mohammad Adam Bala by way of a sale deed through a Court Commissioner appointed by the Court. The transaction between late Ismail Bala and Mohammad Adam Bala resulted in the land being given Block Nos.713/1 and 713/2. The Revenue Survey no.713/2 remained with late Ismail which ultimately came to be inherited by his wife Hawaboo. 4.3 Mohammad Adam Bala is said to have executed a Power of Attorney in favour of the applicant-accused herein dated nd January, 2001. It is the case of the first informant that the disputed block bearing Block no.713 paiki 2 admeasuring 38 Hector is an agricultural land and is of the ownership of his maternal aunt, namely, Bai Hawaboo. It is his case that the accused had preferred an RTS Appeal No.37 of 2000 before the Collector, however, the said RTS appeal was ordered to be dismissed by the Collector. It is his case that the accused had preferred an RTS Appeal No.37 of 2000 before the Collector, however, the said RTS appeal was ordered to be dismissed by the Collector. It is further alleged that the accused at the time of the separation of the blocks had affixed a forged thumb impression of Bai Hawaboo and had misled the authorities and got the disputed land mutated as Block No.713 paiki 1 in his own name. It appears that the name of Mohammad Adam Bala was mutated in the revenue records and thereafter Mohammad Adam Bala executed a Power of Attorney of the entire land in favour of the accused. It is also the case of the first informant that the accused had filed a Revision Application No.28/2003 and in the said Revision Application the verdict came in favour of Bai Hawaboo. 4.4 It is also the case of the first informant that the accused herein has filed a Special Civil Suit No.11/2007 for declaration of title and injunction and in the said Civil Suit a Court Commissioner was appointed who was asked to carry-out the work of the commission of the disputed land i.e. 713 paiki-2. 4.5 It is also the case of the first informant that the accused committed criminal trespass and is also guilty of the offence of extortion. It is also his case that the accused has created false evidence and has produced the same in the Civil Suit proceedings and thereby has committed the offence under Sections 181, 192, 193 and 196 of IPC. 5. Submissions on behalf of the applicant-accused : 5.1 Mr. A.D. Shah, the learned counsel appearing on behalf of the applicant submitted that the entire dispute is inter-se between the family members and is that of civil nature. The civil dispute is pending past several years between Mohammad Adam Bala who executed power of attorney in favour of the applicant and the widow of Ismail Fakir Bala. According to Mr. Shah one Bala Aswat was the owner of the land bearing Survey No.472 and 471 admeasuring 6 hectors and 5 hectors respectively some time before 1885. Thereafter the name of Adam Bala was mutated in the Revenue records and after the demise of Adam Bala his widow’s name was mutated in the revenue records. According to Mr. Shah one Bala Aswat was the owner of the land bearing Survey No.472 and 471 admeasuring 6 hectors and 5 hectors respectively some time before 1885. Thereafter the name of Adam Bala was mutated in the Revenue records and after the demise of Adam Bala his widow’s name was mutated in the revenue records. Mohammad Adam Bala and his mother were in possession and even as on today are in possession of the disputed land past many years. Mr.Shah has relied upon various documentary evidence in the form of revenue records/ entries. 5.2 Mr. Shah submits that the applicant had no idea as to when the name of Mohammad Adam Bala got deleted from the revenue records which was earlier mutated on 7/10/1965 vide Entry No.1064. In the Entry No.1064 there is a recital on the strength of a statement made by Late Ismail Fakir Bala that Survey No.471 paiki and 472 paiki were in possession of Mohammad Adam Bala. Mr. Shah submits that although the said entry was wrongly deleted, yet the admission of the late husband of Bai Hawaboo is relevant. It is further submitted by Mr. Shah that Bala Aswat had two sons, namely, Fakir Bala and Adam Bala. Adam Bala had two sons, namely, Ibrahim and Mohammad. Ibrahim passed away long time back and, therefore, Mohammad Bala was the only surviving legal heir of Adam Bala. On the other hand Fakir Bala had one son, namely, Ismail Bala who passed away on 10th February, 1973 without any issue. His wife Hawaboo became the legal heir of the property owned by Ismail Bala. 5.3 Mr. Shah has also drawn my attention to the fact that after the partition of the land between Late Ismail Fakir Bala and his sister Khatija. Mohammad Adam Bala purchased the land bearing Survey No.472 paiki owned by Ismail Fakir Bala by way of a sale deed. The partition which had taken place between late Ismail Bala and his sister was mutated as Entry no.1064. Mr. Shah submits that late Ismail Bala did not act according to the terms of the sale deed for which Mohammad Adam had to file a Regular Civil Suit No.196/1961 wherein a decree was passed in favour of Mohammad Adam Bala. Mohammad Adam Bala thereafter had initiated execution proceedings vide Execution Application No.23 of 1973. Mr. Shah submits that late Ismail Bala did not act according to the terms of the sale deed for which Mohammad Adam had to file a Regular Civil Suit No.196/1961 wherein a decree was passed in favour of Mohammad Adam Bala. Mohammad Adam Bala thereafter had initiated execution proceedings vide Execution Application No.23 of 1973. The Civil Cout appointed a Commissioner and through the Commissioner the sale deed was registered in favour of Mohammad Adam Bala on 19th January, 1974. 5.4 Mr. Shah submits that the First Information Report was lodged in December, 2007 whereas the Civil Suit filed by the accused is dated 7th May, 2007. The first informant has appeared in the civil suit and has also filed his written statement. During the pendency of the Civil Suit, the first informant misused the criminal machinery and got an FIR registered in a case wherein the dispute is purely of civil nature. 5.6 Mr. Shah submits that the allegations leveled are not only false, frivolous and vexatious, but contrary to the documentary evidence on record. According to Mr.Shah there is no foundation for the criminal prosecution and it is nothing but an abuse of process of criminal machinery. In such circumstances referred to above, Mr. Shah prays that this is a fit case in which the FIR deserves to be quashed. 6. This application has been vehemently opposed by the respondent no.2 –original first informant. Submissions on behalf of respondent no.2: 6.1 Mr. Bharda, the learned advocate appearing on behalf of the first informant submitted that the police should be permitted to go ahead with the investigation as the allegations leveled in the FIR prima facie discloses commission of a cognizable offence. Mr. Bharda submits that filing of the civil suit by the accused cannot be a ground to quash a legitimate prosecution. It is his case that only with a view to grab the property the accused created the documentary evidence and the same has been produced in support of his Civil Suit. It is his case that his client had also filed an application dated 8th May,2007 addressed to the Senior Police Sub-Inspector of Chikhli Police Station informing about the trespass committed by the accused along with his associates in the land bearing Block No.713/p/2. It is his case that his client had also filed an application dated 8th May,2007 addressed to the Senior Police Sub-Inspector of Chikhli Police Station informing about the trespass committed by the accused along with his associates in the land bearing Block No.713/p/2. It is his case that the first informant had also filed an application dated 15/5/2007 addressed to the Collector, Navsari regarding taking over of the possession and occupation forcibly of the disputed land. It is his case that on 21/6/2007 his client had to file a complaint in writing addressed to the Police Inspector, Chikhli Police Station and a preliminary inquiry ultimately resulted into the registration of the FIR. 6.2 Mr. Bharda submits that the accused has not only created false evidence, but with the aid and collusion of the public servants such as Talati and Sarpanch of the respective Gram Panchayat he forged certain documents with a view to create evidence in his favour. 6.3 Mr. Bharda, in such circumstances submits that there being more than a prima facie case against the accused, the FIR deserves to be looked into by the Police and this application for quashing should be rejected. 6.4 The learned APP appearing for the State submitted that the allegations in the FIR do disclose commission of a cognizable offence and, therefore, the investigation should be permitted to be completed. 7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the FIR deserves to be quashed. 8. The dispute pertains to a parcel of land bearing Revenue Survey No.471 paiki and 472 paiki which is being claimed to be owned by Hawaboo –widow of Ismail Fakir Bala. Having gone through the materials on record I take notice the following chronology of the events. 1949 Ismail Fakir Bala alleged to have purchased the land bearing Survey No.471 paiki and 472 paiki from one Parsottam Ishwarbhai. 10/02/1973 Ismail Fakir Bala died and the land was entered in the name of Hawaboo. Survey No.471 Paiki and Survey No.472 Paiki was given new Block No.713 paiki-2. Hawaboo allegedly gave Power of Attorney in the year 2004 to the complainant Ibrahim Mohamad Siddat. The petitioner accused Miya Ibrahim Mehmand Nadat filed RTS Appeal No.37/2000 before the Deputy Collector. The said Appeal was dismissed. Survey No.471 Paiki and Survey No.472 Paiki was given new Block No.713 paiki-2. Hawaboo allegedly gave Power of Attorney in the year 2004 to the complainant Ibrahim Mohamad Siddat. The petitioner accused Miya Ibrahim Mehmand Nadat filed RTS Appeal No.37/2000 before the Deputy Collector. The said Appeal was dismissed. It is alleged that the petitioner Miya Ibrahim Mehmand Nadat obtained a Power of Attorney from Mohamad Adam Bala and filed Revision Case No.28/2003 before the Mamlatdar and Deputy Collector where also decision was in favour of Hawaboo by order dated 13/4/2007. 08/05/2007 The petitioner filed the Special Civil Suit No.11/2007 before Gandevi Civil Court in respect to Block No.713 paiki-2. 14/05/2007 The complainant appeared before the Civil Court and obtained documents which consisted of a Resolution in respect of house No.1209 dated 6/2/2007 based on application dated 2/2/2007. Similarly, the document dated 11/5/2007 for payment of house tax and affidavit dated 16/6/2007 in name of occupier Shabbir Ahmed Husain Shaikh. Thus, according to the complainant, the petitioner-accused and others fabricated false evidence and produced in the Civil proceedings and also illegally trespassed into the land and caused damage by tilling the land. Important Dates : 1895 Revenue records reflect the name of the mother of Mohamad Adam Bala. 1961 Mohamad Adam Bala filed Regular Civil Suit No.197/1961 and an Execution Application No.23/ 1973 was filed in pursuance to the decree passed in favour of Mohamad Adam Bala. 18/06/1964 Entry no.1038 reflecting mutation of names of Ismail Fakir Bala came to be made in Revenue record. 07/10/1965 Entry no.1064 came to be made in pursuance to understanding between Mohamad Adam Bala and Ismail Fakir Bala. 1966 Regular Civil Suit No.34/1966 was filed by Khatija D/o Fakir Bala and sister of Ismail Bala. 22/12/1966 Entry No.1069 came to be mutated in the name of Khatija –sister of Ismail Fakir Bala. 19/01/1974 Concerned Court appointed a Commissioner who got the sale deed registered in favour of Mohamad Adam Bala. 19/09/1997 Petitioner’s maternal uncle gave an application to the Collector for Block separation. 22/01/2001 Maternal uncle executed the Power of Attorney in favour of the petitioner. 22/03/2003 Block separation was carried-out. 13/04/2007 The Collector’s order against Mohamad Adam Bala raising objection against Entry No.2247 made on 3/9/1994. 08/05/2007 Complainant had submitted an application complaining breach of peace. 9. 19/09/1997 Petitioner’s maternal uncle gave an application to the Collector for Block separation. 22/01/2001 Maternal uncle executed the Power of Attorney in favour of the petitioner. 22/03/2003 Block separation was carried-out. 13/04/2007 The Collector’s order against Mohamad Adam Bala raising objection against Entry No.2247 made on 3/9/1994. 08/05/2007 Complainant had submitted an application complaining breach of peace. 9. I am of the view that a pure civil dispute is sought to be converted into a criminal offence. The Civil Suit of the year 2007 filed by the applicant-accused is pending as on today and is ripe for recording of the evidence. If at all it is the case of the first informant that false evidence has been adduced in the suit proceedings, this aspect could very well be looked into by the Civil Court and ultimately if it is found that there is some substance in what is being alleged by the fist informant then the Civil Court can also take care of this aspect. I do not find any of the ingredients spelt-out so far as the offence under Sec. 384 of IPC and Sec. 441 of IPC is concerned. When there is a civil suit pending and the issue as regards the title and possession of the disputed land is at large before the Civil Court and also taking into consideration the various other litigations of the past it is difficult to say that any criminal trespass has been committed by the applicant accused. 10. Thus, in the overall view of the matter, I do not find any element of criminal offence and the involvement of the police in this regard will be nothing but an abuse of the criminal machinery. 11. Since the entire dispute revolves around the ownership of the disputed land, I deem it fit and proper to direct the Principal Civil Judge, Gandevi to take-up the Special Civil Suit No.11/2007 for hearing and see to it that the entire Suit is disposed of finally with the judgment on or before 30th June, 2015. The respective parties shall also extend their full cooperation for effective and expeditious disposal of the Civil Suit. The respective parties shall also extend their full cooperation for effective and expeditious disposal of the Civil Suit. I also deem fit to clarify that although I am not convinced with the case put-up by the first informant in the First Information Report lodged with the concerned police station, so far as the offence under Sections 181, 192,193,196 IPC is concerned, yet, ultimately if any case is made-out on the basis of the evidence that may be led by the defendant in the said Suit, then it shall always be open for the concerned Civil Court to look into it and act thereafter in accordance with law. It shall also be open for the Civil Court to decide the genuineness of any document which is being disputed by the first informant i.e the original defendant in the said Suit. 12. For the foregoing reasons this application is allowed and the First Information Report being C.R.No.I-166/2007 registered at Chikhli Police Station, District Navsari is hereby ordered to be quashed.