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2017 DIGILAW 2558 (ALL)

DILIP KUMAR v. STATE OF U. P.

2017-11-07

AJAY BHANOT, TARUN AGARWALA

body2017
JUDGMENT By the Court.—Heard Sri Anil Kishore Sharma and Sri Saroj Kumr Yadav, the learned counsel for the petitioner, Sri Umesh Vats, the learned counsel appearing for the respondent Nos. 4 and 5 and Smt. Subhash Rathi, the learned Additional Chief Standing Counsel for the District Magistrate. 2. The petitioner has filed the present writ petition praying for the following relief: “(i) Issue a Writ, order or direction in the nature of MANDAMUS and thereby command the respondents, particularly the official respondents to restore the possession of the petitioner over gata No. 211 area 0.450 hectare and gata No. 232 area 0.336 hectare situated in Mauja Mandvivar (Pachhatiya) Post Haveli, Tesil Sadar, District Jaunpur, over which the petitioner has been illegally evicted forcibly in pursuance to the order Special Secretary to the Chief Minister, without following the procedure of law even during the pendency of civil litigations between the parties before the Civil Court and Revenue Court in respect of the same properties. (ii) Issue a Writ, order or direction in the nature of MANDAMUS and thereby issue suitable directions for initiation of disciplinary proceedings against respondent Nos. 7 to 11 for holding the law Courts in contempt by their act and conduct under show of the colour of their office. (iii) Issue any order Writ, order or direction in the nature, as the Hon’ble Court may deem fit and proper in the facts and circumstances of the case. (iv) Award the cost of Writ Petition to the petitioner.” 3. The writ Court entertained the writ petition on the premise that the petitioner was a valid purchaser of the property in question in which possession was given after execution of the sale-deed as is depicted in the sale-deed itself. 4. It was alleged that the respondent Nos. 4 and 5 are claiming to be the heirs of the erstwhile seller/original tenure holder and that respondent Nos. 4 and 5 had also filed a Suit under Section 229-B of the UP ZA & LR Act, which was eventually dismissed as withdrawn. It was further alleged that respondent Nos. 4 and 5 filed a written complaint to the local Minister praying that anti social elements and Mafia have grabbed that property and therefore, prayed that the possession may be restored through police force. It was further alleged that respondent Nos. 4 and 5 filed a written complaint to the local Minister praying that anti social elements and Mafia have grabbed that property and therefore, prayed that the possession may be restored through police force. The Minister in turn wrote a letter to the Chief Minister and the Special Secretary in the office of the Chief Minister made an endorsement on the said letter of the Minister directing the District Magistrate, Jaunpur to take action in accordance with law. This letter to the Chief Minister is dated 26th of June, 2017. The order of the Special Secretary is dated 29th of June, 2017. 5. The petitioner alleges that the police force forcibly dispossessed the petitioner on 19th of July, 2017 and the possession of Gata Nos. 232 and 230, on which a residential house was located, was given to respondent No. 4 and 5. The present writ petition was accordingly filed praying that his possession should be restored and disciplinary proceedings should be initiated against the officials. 6. This Court issued notices to the District Magistrate as well as to respondent Nos. 4 and 5, who have filed a counter-affidavit. The counter-affidavit of the respondents revealed a different scenario bringing out new facts which were not indicated in the writ petition. The background leading to the filing of the writ petition can be summarized in the following manner: 7. The original tenure holder was Khaderan Maurya, who was the father of respondent Nos. 4 and 5 and father-in-law of respondent No. 6 and grandfather of grandson namely Pankaj Maurya. Khaderan Maurya was murdered on 13th June, 2001 by the daughter-in-law, namely, Nirchhala Devi-respondent No. 6 and grandson, namely, Pankaj Maurya. They were eventually convicted with life imprisonment by a judgement of the trial Court dated 4.9.2002 and, in this regard, an appeal is pending before the High Court. 8. During the pendency of the appeal, the grandson-Pankaj died in 2014 and the daughter-in-law is on bail. Respondent Nos. 4 and 5, namely, Usha Devi and Nirmala Devi are the two daughters of Khaderan Maurya, who claimed right over the property in question. They filed an Original Suit No. 1167 of 2001 claiming injunction against the respondent No. 6 -Nirchhala Devi, i.e., daughter-in-law of Khaderan and her son Pankaj. Respondent Nos. 4 and 5, namely, Usha Devi and Nirmala Devi are the two daughters of Khaderan Maurya, who claimed right over the property in question. They filed an Original Suit No. 1167 of 2001 claiming injunction against the respondent No. 6 -Nirchhala Devi, i.e., daughter-in-law of Khaderan and her son Pankaj. The trial Court after hearing the parties, issued an interim injunction dated 20th September, 2007 restraining the defendants-Nirchhala Devi and her son Pankaj from interfering in the possession of the property in question with the plaintiffs and further restraining the defendants from interfering in ploughing and tilling of the fields. The said defendants filed a Miscellaneous Appeal under Order 43 Rule 1 of the Code of Civil Procedure, which was dismissed on 12th November, 2009. A writ petition was filed by the said defendants before the High Court, which was disposed of by a judgement dated 9.12.2009. The aforesaid injunction order is still operative till date. 9. In addition to the aforesaid, respondent Nos. 4 and 5 also filed a suit for declaration in the year 2006 under Section 229-B of UP ZA & LR Act, in which an injunction was passed on 4th December, 2006 under Section 229-D of the Act restraining the defendants-Nirchhala Devi and her son Pankaj from alienating the property in question. In spite of an injunction being granted by the Civil Court and by the revenue Court, it is alleged that respondent No. 6-Nirchhala and her son Pankaj continued to make invasion in the property in question. The police submitted a challani report finding that respondent No. 6 and her son Pankaj were destroying their crops. In the year 2002, the Executive Magistrate while issuing an order under Section 146 (1) Cr.P.C. attached the property, which was considered by the appellate Court while confirming the injunction order. In spite of an order passed under Section 229-D restraining respondent No. 6 Nirchhala Devi and her son Pankaj from alienating the property, in gross violation there of, they executed a sale-deed in favour of the petitioner on 11th February, 2013. The sale-deed indicates that the possession was given but the fact remains otherwise. Since the new purchaser through their henchmen started interfering in the possession, respondent Nos. The sale-deed indicates that the possession was given but the fact remains otherwise. Since the new purchaser through their henchmen started interfering in the possession, respondent Nos. 4 and 5 filed an application 104 Ga before the Civil Court alleging violation of the injunction order dated 20th September, 2007 and prayed that necessary steps should be taken to implement and enforce the injunction order. In the application, it was alleged that the defendants through their henchmen are making invasion and are interfering in the possession. This application was allowed by the trial Court by an order dated 10th April, 2015 directing the police to take action in accordance with law and remove the hindrance that was violating the injunction order. 10. Even though the order for enforcement of injunction was passed on 10th April, 2015, no action was taken by the police authority. It is alleged by the respondent Nos. 4 and 5 that the sale-deed executed in favour of the petitioner was only a benami transaction and the real purchaser was another powerful Minister. 11. A complaint was made by the respondent Nos. 4 and 5 before the Governor of U.P. It transpires that the Governor also wrote a letter to the then Chief Minister intimating him of the alleged interference by a Minister and requesting the then Chief Minister to look into the matter. Admittedly, no action was taken by the then Government as it is alleged that there was an involvement of its Minister. 12. Upon change of the Government, respondent Nos. 4 and 5 made another application to the local Minister, based on which, the Special Secretary issued a direction to the District Magistrate to take action in accordance with law. 13. The counter-affidavit of the District Magistrate states categorically that action was taken to remove the alleged violation of the injunction order as per the direction of the Civil Court dated 10th April, 2015 coupled with the facts that there was also a direction of the Special Secretary to take action in accordance with law. 14. In the light of the aforesaid facts, which have come to the Court, the learned counsel for the petitioner contended that the respondent Nos. 14. In the light of the aforesaid facts, which have come to the Court, the learned counsel for the petitioner contended that the respondent Nos. 4 and 5 being the daughters of a Bhumidhar have inherited the property under Section 171 (2) of the UP ZA & LR Act and that the first right of a inheritance vested upon the daughter-in-law and grand son of the pre-deceased son of Khaderan Maurya. On the other hand, it was observed that in view of Sections 25 and 27 of the Hindu Succession Act, 1956, a person convicted of murder loses his right to inherit a property of a Hindu. It was alleged by the petitioner that the provisions of the Hindu Succession Act are not applicable in case of inheritance under the UP ZA &LR Act. In spite of aforesaid submission, the learned counsel placed reliance on a decision dated 13th April, 1973 in Jamuna Das v. Board of Revenue, AIR 1973 Alld. 397. On the other hand, the learned counsel for the respondents placed reliance on a decision in Vallikannu v. R. Singaperumal and another, 2003 (1999) RD 34 SC. 15. The Court is however not dwelling on this aspect of the matter and is only concerned as to whether there was a violation of any law when the district administration evicted the petitioner from the property in question. 16. We find from a perusal of the injunction order dated 20th September, 2007 that the respondent-defendant No. 6 Nirchhala Devi and her son Pankaj were restrained from interfering in the possession of the plaintiffs, namely, respondent Nos. 4 and 5. This injunction order is continuing till date. There was a finding that the respondent Nos. 4 and 5 were in possession of the property in question. The sequence of events also indicates that even after the sale-deed was executed on 11th February, 2013, the respondent Nos. 4 and 5 were in possession of the property in question and their names were also mutated on 30th July, 2013 under Section 34 of the Land Revenue Act. The claim of the petitioner for mutation pursuant to the sale-deed was rejected by another order. 4 and 5 were in possession of the property in question and their names were also mutated on 30th July, 2013 under Section 34 of the Land Revenue Act. The claim of the petitioner for mutation pursuant to the sale-deed was rejected by another order. We also find that the respondent No. 6 and her son Pankaj were restrained by an order under Section 229-D from alienating the property, in spite of which, respondent No. 6 and her son Pankaj executed a sale-deed on 11th February, 2013. 17. The principle of “caveat emptor” is fully applicable. The petitioner purchased the property in question by the erstwhile seller. The seller was under a restraint order from the Civil Court as well as by the revenue Court. The petitioner being the purchaser is deemed to know of the restraint orders passed by the competent Courts and is equally bound by such restraint orders. Purchasing a property despite knowledge of the restraint orders was on his own risk and peril. Thus, the assertion made in the sale-deed that the physical possession was given does not appear to be a correct statement. 18. We also find that the Civil Court issued an order dated 10th April, 2015 for removal of the violation of the injunction order directing the police to do the needful. Admittedly, the police was not doing the needful because that at that relevant moment of time the officials of the police and Government were operating against the respondent Nos. 4 and 5. This fact, the Court cannot ignore and consequently, when the Special Secretary directed the District Magistrate to do the needful in accordance with law, the alleged obstruction was removed by forceful dispossession of the petitioner. We are of the opinion that the authorities were acting in accordance with law to enforce the injunction order that was granted by the Civil Court on 20th September, 2007. The contention of the petitioner that when a civil suit was pending, the District Administration had no jurisdiction to interfere or forcibly evicted the petitioner is patently erroneous. Admittedly, orders were passed by the Civil Court as well as by the Revenue Court, which were being willfully violated by the petitioner by his actions and the authorities by their inaction. The majesty of the Court and the rule of law were being undermined by the petitioner. Admittedly, orders were passed by the Civil Court as well as by the Revenue Court, which were being willfully violated by the petitioner by his actions and the authorities by their inaction. The majesty of the Court and the rule of law were being undermined by the petitioner. The action of the authorities restored the majesty of the Court and upheld the rule of law. The petitioner cannot be permitted to flout orders of the Civil Court and Revenue Court with impunity and then seek equitable relief from this Court. We find that the writ petition is devoid of any merit and is dismissed as such.