Heard Mr.Nagendra Mohan, learned counsel for the petitioners and Mr.I.B.Singh, learned Senior Advocate assisted by Mr.Prashant Singh Atal, learned counsel for the opposite party No.2 as well as Mr.Rajendra Kumar Dwivedi, learned Additional Government Advocate on behalf of the State.
The petitioners have challenged the proceedings of Case No.9733 of 2007, pending before the Court of Judicial Magistrate-I, Lucknow as well as the orders passed therein issuing non-bailable warrants and process under Section 82 of the Code of Criminal Procedure.
The petitioners are charge sheeted under Sections 420, 466, 467, 468, 471 IPC for commission of offence on the basis of the police report for tampering with the records i.e. Register No.147 available in the office of the Sub Registrar of the Office of the Registration, Lucknow.
The petitioners' claim that Raja Mohammad Amir Ahmad Khan, father of respondent No.2, executed one 'Hibbanama' of some of his properties in favour of his other three brothers, namely, (i) Moharaj Kumar Mohammad Amir Haider Khan (ii) Maharaj Kumar Mohammad Mahmood Hasan Khan and (iii) Moharaj Kumar Mohammad Amir Ali Khan on 17th of September, 1955, which was registered in Book No.1, Zild No.14785, Document No.2553 on pages 21 and 22.
After some time Raja Mohammad Amir Ahmad Khan settled in Pakistan and his property was declared as enemy property leaving aside the property inherited by his other three brothers on the basis of Hibbanama.
The sole son of Raja Mohammad Amir Ahmad Khan, namely, Raja Mohammad Amir Mohammad Khan (opposite party No.2.) also settled in London, but after some time he came back to India and filed a suit in the court of Civil Judge, Lucknow for declaration of his right over the properties including the properties gifted to other bothers of Raja Mohammad Amir Ahmad Khan without impleading them as parties. The suit was registered as Regular Suit No.219 of 1984 and he succeeded to get a exparte judgment and decree on 8th of July, 1986. He was declared as sole heir and successor of his father late Raja Mohammad Amir Ahmad Khan to be entitled to the 25% of the property in suit. It is stated that he concealed the fact of Hibbanama, whereas the same was in his knowledge. On the basis of the said decree dated 8th of July, 1986, he filed a writ petition, being writ petition No.1524 of 1997 in High Court of Bombay for releasing certain properties in his favour, which were declared as Custodian properties. In the said writ petition he also claimed the properties gifted to the petitioner No.1 and his other brothers again without impleading them as party in the case. After having knowledge of the said petition, the petitioner No.1 moved an application for impleadment claiming his right over the gifted property. The High Court of Bombay disposed of the said application with the following observations:-
"Heard the learned counsel for the parties.
2.If the applicant is having any right in the property in question, it would be open for him to file a separate petition. In case any such petition is filed then it would be further open to him to point out the Court that another petition with regard to the same properties is already pending before this court and that therefore the petition filed by him may also be heard alongwith the writ petition already pending before the court.
3.Chamber summons disposed of accordingly."
Thus, the High Court granted him liberty to file a separate petition for the said cause of action by means of order dated 25th of June, 1998. The High Court decided the said writ petition finally on 21st of September, 2001 with the direction to the Custodian of enemy property to return the properties to the opposite party No.2. The Union of India challenged the said order before the Hon'ble Supreme Court through Civil Appeal No.2501 of 2002 in which again an application for impleadment was moved by the petitioner No.1, which was dismissed as withdrawn. Ultimately the Hon'ble Supreme Court decided the appeal on 21st of October, 2005 and dismissed the appeal being lack of merit. The Hon'ble Supreme Court observed that the suit for declaration being suit No.219 of 1984 was decreed on 8th of July, 1986, which attained the finality. Having attained finality, there remains no dispute that respondent is the sole legal heir and successor of his father, late Raja of Mahmoodabad and property belonging to late Raja came to be owned exclusively by him. After the death of late Raja Mahmoodabad, the respondent No.2 became the sole owner of the properties, which had been taken over by the Custodian of enemy property. The Hon'ble Supreme court issued direction to the appellants to hand over the possession of the properties. The officers who are in occupation of the buildings for their residences or for their offices have also been directed to immediately vacate and handover the building or the properties to the Custodian to enable him to hand over the possession to the respondent in terms of directions given.
It is stated by the petitioner that in light of the observations made by the High Court of Bombay on the applications for impleadment moved by the petitioner No.1 preferred a writ petition being writ petition No.6195 (MB) of 2001 before this court, in which this court has granted an ad-interim relief to maintain status quo with regard to the possession of the properties by means of order dated 14th of December, 2001. The writ petition is still sub-judice before this court and interim order is still operative.
The petitioners also filed a suit for declaration and permanent injunction being regular Suit No.111 of 1999 before the court of Civil Judge (Senior Division), Lucknow, in which they have also challenged the decree dated 8th of July, 1986, allegedly having been passed in the suit being collusive one. The learned Civil Judge has also granted an-interim injunction on 2nd of April, 1999 restraining the opposite party No.2 from getting possession from the Custodian of enemy property, which is still operative.
The opposite party No.2 is contesting the suit. He has filed written statement with the averments that the document i.e. Hibbanama, on the basis of which the petitioners have claimed their right, is forged and fabricated document, which is to be adjudicated upon by the Civil court, whereas with the same allegation he also lodged an First Information Report, which has resulted in the impugned charge sheet. Thus, they claimed that the validity of gift deed (Hibbanama) still has to be adjudicated upon by the Civil Court, therefore, at this stage unless this question is finally determined, there is no occasion to proceed with the criminal case registered against the petitioners.
The learned counsel for the petitioners also informed that the said Hibbanama has been acknowledged by the Sub Registrar, therefore, it cannot be said to be forged one. He also made emphasis upon two interim orders, one passed by this court and another passed by the Civil Court in their favour. He further claims that the order impugned dated 20th of December, 2010, whereby the non-bailable warrants as well as process of Section 82 Cr.P.C. has been issued, reveals that the further investigation is still pending, therefore, unless the police report is submitted before the court concerned, there is no occasion to call upon the petitioners or to take any coercive action against them for their appearance before the court below.
On the other hand Mr.I.B.Singh, learned Senior Advocate appearing for the respondent No.2 submitted that the petitioners have not been fair since very beginning as when they filed the application for impleadment before the High Court of Bombay, it was rejected with liberty to file a writ petition with the same very court and also to apprise the court that the other writ petition is pending, but the petitioners did not choose the same very course, rather they filed writ petition before this court at Lucknow. Their application for impleadment before the Hon'ble Supreme Court in the appeal has also been rejected and the respondent No.2 has been declared the sole owner to inherit the property of his father. So far as the Hibbanama executed in favour of the petitioner No.1 as well as his two other brothers is concerned, he submitted that after investigation, it has been found that in the register concerned available with the office of Sub Registrar of the registration office, Lucknow, the page No.21-22 have been found changed by inserting the pages of so called Hibbanama, whereas the Register in which the details of registered documents are maintained discloses that on these pages one sale deed registered in favour of Ram Kishore and Shyam Swaroop was placed, which has been replaced by two pages of so called Hibbanama. On the basis of this Hibbanama, the petitioner No.1 made an effort to establish his right by moving an application for impleadment before the High Court, but the same was rejected. He again made an effort before the Hon'ble Supreme Court on the same strength, but again became unsuccessful. Now on the basis of said documents they have again tried to establish their right by filing a civil suit, but here this is not only the question that whether the Hibbanama is a valid or not or forged one, but as per police report it has been established that the office record of the Sub Registrar has been tampered by inserting this two pages document (Hibbanama) in place of pages of sale deed executed in favour of different persons, therefore, maximum the civil court can examine the validity of the will deed and in that very contest the right of the parties, but once after investigation the tampering of government record is, prima facie, established, there is no reason to interfere in the criminal proceeding initiated on the basis of the charge sheet impugned only on the ground that their claim of right over the property on the basis of the said Hibbanama is pending considering with the civil court as well as this court with the interim order to maintain status quo over the property in question. It is also submitted by him that during the course of investigation number of witnesses have given the statement that the records have been tampered by the petitioners. He also invited the attention of this court towards the judgement and decree of the civil court passed on 8th of July, 1986, in which right of the respondent as sole owner of property has been accepted by the plaintiff's other brothers.
On the point of pendency of further investigation the learned Additional Government Advocate submitted that if on the basis of materials collected during the course of investigation there are sufficient materials to proceed with the case, there is no reason to stay the proceeding only due to pendency of further investigation. In support of his submission he relied upon the following judgments:-
(i) Daya Shankar Singh Versus State of UP, reported in 1988 (25) ACC 270, (ii) Zulfiqar Beg alias Baby versus State of U.P. Reported in 1992 (29) ACC 260, (iii) Smt. Ramawati and others versus State of U.P. And others reported in 2001 (42) ACC 751 and (iv) Bhopal and others versus State of U.P. And others reported in 1997 (34) ACC 371.
So far as the right of the respondent No.2 over the property inherited by his father is concerned, that is not disputed and the same has been upheld to the extent it is permissible by the Hon'ble Supreme Court, on the basis of which the petitioners are entitled to inherit the property of his father only, but so far as the property which is subject matter of the Hibbanama executed in favour of the petitioner No.1 as well as his two other brothers by father of respondent No.2 is concerned, it was not the subject matter of dispute either before the High Court of Bombay or before the Hon'ble Supreme Court. So far as the decree passed by the civil court in his favour is concerned admittedly the petitioner No.1 and his two brothers, in whose favour the so called Hibbanama was executed, were not the parties nor was the fact of Hibbanama disclosed in the said suit, therefore, they have right to claim the property on the basis of Hibbanama. As has been submitted by both the parties, they have claimed so before the civil court, therefore, the point of Hibbanama or its validity does not require any adjudication by this court.
I also perused the case diary placed before me by the learned Additional Government Advocate.
Keeping in view the allegation, as has been made in the charge sheet regarding the tampering of record, available in the office of the Sub Registrar, Registration office, Lucknow, I am of the view that the matter can be examined separately by the criminal court on the basis of the evidence adduced therein, therefore, I am of the view that no interference is required in the matter by this court in the proceeding initiated on the basis of the charge sheet impugned, but keeping in view the stay orders passed by this court as well as by the Civil Court directing the parties to maintain status quo coupled with the fact that the petitioners No.1 is 90 years old, I feel it appropriate to provide that on appearance of the petitioners before the courts below to face the criminal proceeding, their request of bail shall be considered by the Courts below on the same date and no coercive action shall be taken against them at least for one month.
With the aforesaid observations the petition is disposed of finally.
Order Dated:7.2.2011 Banswar