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2023 DIGILAW 1288 (ALL)

Bakar Ali Khan v. State Of U. P.

2023-05-10

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : 1. Heard learned counsel for the petitioners, learned counsel for the respondents, learned AGA for the State and perused the material placed on record. 2. Present petition under Article 227 of Constitution of India has been filed by the petitioner challenging the order dated 6.10.2022 passed by the Additional Session Judge (Fast Track Court-II), Rampur in Criminal Revision No.78 of 2022 as well as the order dated 28.2.2022 passed by Sub Divisional Magistrate, Rampur in Case No.23 of 2022, under Section 145 of Cr.P.C. Vide order dated 6.10.2022, the order dated 28.2.2022, passed by Sub Divisional Magistrate, Rampur has been affirmed and the criminal revision filed by the present petitioners has been dismissed. 3. The factual matrix of the case relevant for the purpose of present petition are that the proceeding under Section 145 Cr.P.C. began before the Court of Up Zila Magistrate, Tehsil Sadar, Rampur on report of Tehsildar Sadar dated 3.1.2022, in which it was informed that a fact finding inquiry was conducted regarding Khatauni/Khata No.10 and 11 situated at Village Madaiyan Nadar Bagh, Tehsil Sadar. According to the order of then S.D.M. Dated 4.3.1975, the land measuring of 13 bigha, situated at Village Madaiya, Nadar Bagh, which is a part of Khevat No.6 was divided among the heirs of Late Ashraf Ali Khan, in which his sons namely Ishrat Ali Khan, Afsar Ali Khan and Murshad Ali Khan have got 11193 sq. yards each and daughter Akhtari Begum got 5596.5 sq. yards land. Afsar Ali Khan and Murshad Ali Khan executed total 4 sale deed of their share of land measuring 13140 sq. yards on different dates. Afsar Ali Khan sold entire 11193 sq. yards, which was obtained by him through succession in favour of different persons and through different sale deeds and therefore, no share of him remain in Khatauni/Khata Nos.10 and 11. Other heirs of Asharaf Ali Khan also sold lands coming to their share in favour of different persons. As Afsar Ali Khan had already sold 11193 sq. yards land, which came to his share after death of his father, his sons had no right to execute sale deed dated 24.1.2020 in regard to plot Nos. 178179 in favour of Parvej Akhtar Khan, son of Qamar Akhtar Khan by projecting the land through boundary. As Afsar Ali Khan had already sold 11193 sq. yards land, which came to his share after death of his father, his sons had no right to execute sale deed dated 24.1.2020 in regard to plot Nos. 178179 in favour of Parvej Akhtar Khan, son of Qamar Akhtar Khan by projecting the land through boundary. The land sold to Parvej Akhtar was mutated in the name of purchaser Parvej Akhtar Khan but a restoration application was filed by the applicant Mohd. Suleman Siddiqui (present respondent No.2) and mutation application was restored and the matter of mutation still pending before Tehsildar. The disputed plot was lying vacant, on which Bakar Ali Khan as well as Parvej Akhtar Khan were trying to raise construction with a view to grab the land on 14.12.2021. They also constructed a gate and partial boundary, which was stopped by Tehsildar Sadar on visiting the spot. He also stated that there is apprehension of breach of peace on the spot. The case was registered and notice was issued to opposite party (Bakar Ali Khan and others) but they failed to appear and did not filed any objection. The disputed land was initially in the nature of groove but in course of time, it converted into abadi and several commercial and residential buildings were constructed on said plot. The case of first party Suleman Siddiqui was that he has acquired the disputed plot by a registered gift deed executed from his real 'bua' Smt. Sageera Yusuf on 3.9.2017, who had purchased this plot through registered sale deed dated 24.7.2009 from Mukarram Hussain Siddiqui. The case of the first party was that he was continuing in possession of said land from the date of prilimanary order under Section 145 Cr.P.C. and prior to two months therefrom. The colored map was also prepared wherein when the entire 13 bigha land was partitioned amonst the heirs of Asharf Ali Khan. The portion of land allotted to each of the heirs of Ashraf Ali Khan was demarcated in colored map. A copy thereof was filed by the first party before the court of Up Zila Magistrate. The colored map was also prepared wherein when the entire 13 bigha land was partitioned amonst the heirs of Asharf Ali Khan. The portion of land allotted to each of the heirs of Ashraf Ali Khan was demarcated in colored map. A copy thereof was filed by the first party before the court of Up Zila Magistrate. Ishrat Ali Khan, one of the heirs of original owner Ashraf Ali Khan, had sold a portion of his share of land through two registered sale deeds in favour of 21 persons, who had partitioned purchased land by giving a pathway amonst them, on which 12 shops connected with Rahe Murtaza were constructed and sold to 12 purchasers through sale deed dated 28.7.1983, total area of 12 shops consisted of 2 biswa, 10 biswansi by earmarking the same through boundary marks. Ishrat Ali Khan also sold the land i.e. 1 bigha, 17 biswa, 11 biswansi land lying behind 12 shops to 21 persons through two sale deeds dated 28.7.1983 covering 4 biswa, 605 sq. yards land and the purchasers had constructed their respective houses thereon. The case of first party Suleman Siddiqui was that his name has been mutated in revenue records on the basis of gift deed dated 13.9.2017 executed by his Bua Smt. Sageera Yusuf whereas mutation order passed in favour of Bakar Ali Khan and others has been cancelled vide order dated 25.1.2022 passed by the Tehsildar Sadar and they are no longer recorded tenure holder in Khatauni. Bakar Ali Khan had executed a sham sale deed in favour of Parvej Akhtar on 20/24.1.2020 taking benefit of his name lying in Khatauni. As no land was lying in his name, the boundary shown in the sale deed was of no value. A mutation order passed in favour of Parvej Akhtar on the basis of said sale deed vide order dated 13.12.2021. The first party has also filed a civil Suit No.404 of 2020 (Mohd. Suleman Siddiqui vs. Parvej Akhtar and others), for cancellation of sale deed, which is pending in the court of Civil Judge (J.D.), Ramgarh. The opposite party Bakar Ali Khan and others did not appeared in proceedings before Up Zila Adhikari. Parvej Akhtar appeared but he did not file objection and Bakar Ali Khan and others did not appear in spite of fact that service/process was held to be sufficient on therm. The opposite party Bakar Ali Khan and others did not appeared in proceedings before Up Zila Adhikari. Parvej Akhtar appeared but he did not file objection and Bakar Ali Khan and others did not appear in spite of fact that service/process was held to be sufficient on therm. After hearing submissions of first party and on the basis of record, the Up Zila Magistrate vide order dated 28.2.2022 directed the second party Bakar Ali Khan and Parvej Akhtar Khan and others were directed to refrain from interfering in possession of disputed land lying in possession of first party and a copy of the order was sent to S.H.O. and Tehsildar concerned for necessary action. 4. A criminal revision was preferred against impugned order by present petitioners, which was dismissed by learned Sessions Judge vide impugned order dated 6.10.2022 passed in Criminal Revision No.78 of 2022. The criminal revision was dismissed by the impugned order and order of Up Zila Magistrate was affirmed. Learned Revisional Court observed that dispute was with regard to one shop measuring 24 sq. yards land only. 5. Feeling aggrieved by the impugned orders passed by the courts below, the opposite party Bakar Ali Khan and others filed present petition, in which they have stated that they are co-sharers in plot Nos.169, 170, 171, 173, 177, 178, 180, 167, 172, 179 situated at Village Madaiyan Nagar Bagh, Tehsil Sadar, District Rampur and are still in possession on said plots. The petitioners admitted the fact that the property in question, in its entirety initially belonged to Ashraf Ali Khan and after his death, it devolved on his three sons and one daughter namely Akhtari Begum. The petitioners are heirs of Afsar Ali Khan. They are in possession of their respective share in the property left by their father Afsar Ali Khan. The impugned order passed by SDM is an ex-parte order and in fact no notice was served on them. The petitioners had executed a sale deed dated 24.1.2020, area 24 sq. yards in favour of the respondent No.3 and his name has also been mutated alongwith petitioners. Sub Divisional Magistrate dealt with the case as he decided the issue of tile among the contesting parties, whereas he was not empowered for the same. The petitioners had executed a sale deed dated 24.1.2020, area 24 sq. yards in favour of the respondent No.3 and his name has also been mutated alongwith petitioners. Sub Divisional Magistrate dealt with the case as he decided the issue of tile among the contesting parties, whereas he was not empowered for the same. Several disputes are pending before the courts regarding the property, out of which one case is pending before the Civil Judge (J.D.), Rampur, being Original Suit No.547 of 2021, filed by one Naim Akhtar and another against petitioners for cancellation of sale deed and permanent injunction. The subject matter of dispute is also relating to same land. The petitioners have also filed civil suit in the court of Civil Judge (Senior Division), Rampur as O.S. No.344 of 2020 against respondent Nos.2 and others for permanent injunction. Respondent No.2 has also filed a Civil Suit for cancellation of sale deed dated 20.1.2020 executed by the petitioners in favour of the respondent No.3 bearing Case No.404 of 2020. All the suits are pending in different civil courts at Rampur District Judgeship. As the civil litigations pending between the parties is still going on, the proceedings under Section 145 Cr.P.C. are not maintainable. The impugned order dated 28.2.2022 passed by learned Magistrate is an ex-parte order. Notice was not duly served on petitioners. 6. Learned counsel for the petitioners placed reliance on pleadings made in present writ petition. He submitted that the impugned order passed by both courts below are absolutely illegal and perverse as firstly no police report was called for by SDM to ascertain the genuineness of breach of peace between the parties over the land in question. The SDM committed legal error while passing impugned order inasmuch as he had no authority in law in proceeding under Section 145/146 Cr.P.C. to adjudicate on the right and title of the parties. He could only look into the apprehension of breach of peace as well as possession over the land in dispute within two months next before the date on which the report of the police officers or on any other information was received by the Magistrate. He could not act as a civil court as in proceeding under Section 145/146 Cr.P.C. He lasly submitted that learned courts below have failed to consider this aspect of the matter that respondent No.2 had only 24 sq. He could not act as a civil court as in proceeding under Section 145/146 Cr.P.C. He lasly submitted that learned courts below have failed to consider this aspect of the matter that respondent No.2 had only 24 sq. yards of land but not on the land of petitioners. Respondent No.4 is not a recorded tenure holder inasmuch as his name was never recorded in revenue record. Learned revisional court failed to examine the correctness and legality of the order passed by the learned Up Zila Magistrate, merely because somebody is claiming possession over land in dispute, no presumption of apprehension of breach of peace can be made. Complainant/respondent No.2 is not recorded tenure holder of the disputed property, Sub Divisional Magistrate committed error while presuming his possession over disputed property. No independent evidence was taken by learned Magistrate to determine question of possession on disputed land. The order of S.D.M. was initially stayed by Session Court vide order dated 21.5.2022, passed in Criminal Revision No.78 of 2022. 7. Learned counsel for the petitioners cited a judgement of Hon'ble Apex Court in Ranveer Singh vs. Dalbir Singh, 2002 Cr.L.J. 2017, wherein the Apex Court considered the legality of order of High Court of Delhi in Criminal Revision No.540 of 2000 dated 16.7.2001 whereby the order of Executive Magistrate under Section 146(1) was set aside. Hon'ble Apex Court observed that the Court, while dealing with a proceeding under Section 145 Cr.P.C., is mainly concerned with possession of the property in dispute on the date of the preliminary order and dispossession, if any, within two months prior to that date; the Court is not required to decide either title to the property or right of possession of the same. The question for determination before the High Court in the present case was one relating to the validity or otherwise of the preliminary order passed by the learned Sub-Divisional Magistrate under Section 145(1) Cr.P.C. and sustainability of the order of attachment passed under Section 146(1) Cr.P.C. For deciding the questions it was neither necessary nor relevant for the High Court to have considered the matters relating to title to and right of possession of the property. Further, both the parties in the case have filed suits seeking decree of permanent injunction against each other and in the suit filed by the appellant an order of interim injunction has been passed and an objection petition has been filed by respondent no.1. The suits and the interim order are pending further consideration before the civil court. 8. Learned counsel appearing on behalf of the respondent Nos.2 and 3 laid emphasis on impugned orders and submitted that the impugned orders passed by the courts below are very elaborate and reasoned orders which are based on material placed on record and no interference is warranted in impugned orders. 9. In the present case, on perusal of final impugned order passed by learned Up Zila Magistrate under Section 145 Cr.P.C., it appears that he has not given any finding therein regarding apprehension of breach of peace regarding disputed land. He has only placed reliance on the report of Tehsildar, who apprehended breach of peace in his inquiry report submitted to Zila Magistrate. He has also not given specific finding regarding possession of any party to the case and gave a finding regarding possession of respondent No.2 Mohd. Suleman Siddiqui on disputed land in operative order of the Court. In a proceeding under Section 145/146 Cr.P.C., Executive Magistrate is not empowered to decide the question of title and legality of possession claimed by any other parties. In such proceedings, the Magistrate is concerned only with the actual physical possession. If he is unable to satisfy himself as to which of the parties was in such possession or if he decides that none of the parties was in such possession, or if there is an emergency, it is open to him to attach the subject matter of dispute. An order of attachment if made without one or other of these findings, is not sustainable. In present case, the Magistrate has not given a finding while passing the impugned order that the case is one of emergency. 10. Civil Suit No.404 of 2020 had filed by the present respondent No.2 Mohd. Suleman Siddiqui against respondent No.3-Parvej Akhtar, who has purchased the disputed property from petitioners for cancellation of sale deed and injunction before the Civil Court. Another O.S. No.344 of 2020 has been filed by the present petitioners against respondent No.2 and others for permanent injunction relating to disputed land. Suleman Siddiqui against respondent No.3-Parvej Akhtar, who has purchased the disputed property from petitioners for cancellation of sale deed and injunction before the Civil Court. Another O.S. No.344 of 2020 has been filed by the present petitioners against respondent No.2 and others for permanent injunction relating to disputed land. A suit for cancellation of sale deed and permanent injunction is also pending as O.S. No.547 of 2021 between one Naim Akhtar and another vs. present petitioners for cancellation of sale deed as well as for permanent injunction, for which right, title and interest of the party regarding disputed property is to be decided by the competent court, as envisaged under Sub Section (1) of Section 146 Cr.P.C. In O.S. No.344 of 2020, present petitioners have prayed for permanent injunction against respondent No.2, who are present respondent No.2 and others, with regard to 4895.65 sq. yards land, which they claimed to have acquired from their father through succession whereas the case of present respondent No.2 is that their father had already sold his entire 1/3rd share of groove land acquired through inheritance from his father and nothing remained with present petitioners, which they could transfer to any person. In Civil Suit No.344 of 2020, present respondent No.2 had sought relief of cancellation of sale deed and permanent injunction with regard to the land which they claimed to have acquired through registered gift deed dated 13.9.2017 from his Bua Smt. Sageera Yusuf. In this suit the main dispute with regard to plot and question of having area 0.278 hectare, 0.147 hectare, 0.425 hectare, which are equivalent to 5082.95 sq. yards, which is demarcated by boundary marks. In this suit the sale deed executed by present petitioners in faovur of the respondent No.3 has been challenged on the ground that the vendors were not owner in possession of this property. In operative portion of the impugned order, learned Up Zila Magistrate has observed that the first party Mohd. Suleman Siddiqui was in possession of the disputed property but he has not referred to any evidence on the basis of which he has reached this finding except the report of Tehsildar, on which the proceeding under Section 145 Cr.P.C. were initiated. In operative portion of the impugned order, learned Up Zila Magistrate has observed that the first party Mohd. Suleman Siddiqui was in possession of the disputed property but he has not referred to any evidence on the basis of which he has reached this finding except the report of Tehsildar, on which the proceeding under Section 145 Cr.P.C. were initiated. He has not referred any evidence or police investigation report with regard to finding that there was apprehension of breach of peace on the spot, which required initiation of proceeding under Section 145/146 Cr.P.C. In proceeding under Section 145 Cr.P.C., the Executive Magistrate may treat a party in possession who has been wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1) of Section 145 Cr.P.C., where dispute concerning land or water is likely to cause breach of peace. Under Section 146 Cr.P.C., the Magistrate at any time after making the order under sub-section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. 11. In present case, the Magistrate has not issued any attachment order with regard to property in dispute instead he has passed an injunction order in favour of the first party against second party, who are petitioners before this Court and such type of order is beyond purview of the powers exercisable by Executive Magistrate in proceeding under Section 145/146 Cr.P.C. and therefore, the impugned order is not sustainable under law and deserves to be set aside, on this ground also. In a recent Judgement in the case of Mohd. In a recent Judgement in the case of Mohd. Abid vs Ravi Naresh, arising out of Special Leave to Appeal (Crl.) No(s).5444/2022, Hon'ble Apex Court vide judgement dated 1.11.2022 held that it was an admitted fact that the petitioners have already filed a suit for injunction in which ex-parte ad-interim injunction has been granted by the Civil Court, Faizabad, Uttar Pradesh on 05.12.2020. Once the Civil Court is seized of the matter, it goes without saying that the proceedings under Section 145 /146 Cr.P.C. cannot proceed and must come to an end. The inter-se rights of the parties regarding title or possession are eventually to be determined by the Civil Court. In present case also, according to the pleadings of the parties, both sides have filed civil suits for cancellation of sale deed/injunction before civil court where the question of right, title or interest of the party are to be attached on the basis of evidence adduced by the parties. Therefore, the impugned order dated 28.2.2022 passed by learned Up Zila Magistrate is not found within the four corners of the law and consequently it is set aside. Consequently, the impugned order dated 6.10.2022 passed by Revisional Court affirming order of Magistrate is also set aside. 12. Accordingly, the petition stands allowed. 13. The parties are relegated to avail their remedies available before Civil Court, in respect of their respective suits filed by them. With a view to preserve the property in dispute to enable the parties to avail the remedy before the civil court, the parties are directed to maintain status quo of the disputed party for a period of three months from today, which will automatically stands vacated, thereafter.