Judgment Reserved on : 15.10.2019 Judgment Delivered on : 17.12.2019
Court No. - 81
Case :- APPLICATION U/S 482 No. - 27816 of 2014 Applicant :- Rajendra Prasad And 3 Ors Opposite Party :- State Of U.P. And 3 Ors Counsel for Applicant :- Kaushlendra Kumar Yadav,Brij Raj Singh Counsel for Opposite Party :- Govt. Advocate,Ajay Singh
Hon'ble Dinesh Kumar Singh- I,J.
Heard the arguments advanced by Shri Kaushlendra Kumar Yadav, learned counsel for the applicants and in opposition, Shri Ajay Singh, learned counsel for opposite party no. 2 and Shri Amit Kumar Singh, learned A.G.A. for the State of U.P.
1. This application under Section 482 of the Code of Criminal Procedure, 19731 has been moved on behalf of the applicants with a prayer to quash the impugned orders dated 01.11.2013 and 02.06.2014, passed under Sections 145(1) and 146(1) of the Code, respectively, as well as to quash the entire proceedings initiated against the applicants in pursuance of the aforesaid orders passed by opposite party no. 2/Sub-Divisional Magistrate, Machhali Shahar, Jaunpur, in Case No. 71 of 2013 (Sushila Devi v. Rajendra Prasad and others), under Section 145(1) of the Code, Police Station - Machhali Shahar, District - Jaunpur.
2. It is mentioned by learned counsel for the applicants in the affidavit that opposite party nos. 3 and 4 have initiated proceedings under Section 145(1) and 146(1) of the Code for attachment of the abadi land situated in Gata No. 930 area 0.328 hectare situated at Village - Jamuhar, Pargana Ghisua, Tehsil - Machhali Shahar, District - Jaunpur, which is already recorded in the name of father of the applicants. The father of the applicants was the owner of the said land and was in possession of it. The extract of khasra has been annexed as Annexure 1. Opposite party nos. 3 and 4 have no concern with the said abadi land, yet they are trying to take 1 hereinafter referred to as 'Code'
forcible possession over the rooms which are constructed on the said abadi land. The applicants have also constructed a boundary wall over the said piece of land, which opposite party nos. 3 and 4 have forcibly dismantled and a false and fabricated application has been given to the Sub-Divisional Magistrate, Machhali Shahar, stating therein that the boundary wall of opposite party nos. 3 and 4's land has been dismantled by the applicants. The said application was given by the opposite parties on 28.10.2013 to Sub-Divisional Magistrate, which was marked to tehsildar for his report. The report was submitted by him, stating therein that the said land was in the name of Hariram son of Matar as bhumidhar with transferable rights and that there was no dispute. However, on Gata No. 930 area 0.328 hectare, which is recorded as abadi land in kshreni 6(2), both the parties have raised dispute, in which towards western side of the house of opposite party nos. 3 and 4, the house of the applicants is situated and in front of their house, on the southern side and eastern side, Kaltu and Sitai are owners of the land, who died 30 years ago and after their death, the applicants are said to have come in possession of the said land measuring 27 x 11 sq. ft., which piece of land opposite party nos. 3 and 4 are claiming as khandani, while the applicants are claiming the said piece of land on the basis of possession. It is also stated in the said report that on the land in dispute, the house of the applicants are also constructed apart from khoonta and one garbage bin. Also, banskothi and marha belonging to the applicants were found there. The said garbage bin is said to be of Parasnath (opposite party no. 3) for the last two years. The report of tehsildar is annexed as Annexure No. 3. Further, it is mentioned that since the said report was incorrect, the applicants filed an objection against the same on 31.01.2014. Opposite party nos. 3 and 4 moved an application under Section 145(1) of the Code on the ground that there was likelihood of breach of peace. Therefore, the proceedings under Section 145(1) and 146(1) of Code could be drawn. Thereafter, the opposite party no. 2 i.e. S.D.M., Machhali Shahar passed an order dated 01.11.2013, directing the S.H.O., Kotwali, Machhali Shahar to serve notices upon the parties to appear before him with their explanations. After coming to know about the said notices, the applicants had filed their objection along with the affidavits, categorically stating that opposite party nos. 3 and 4 had no concern at all with the said land as the same was abadi land recorded in the name of father of the applicants and it was further mentioned that the said land belonged to Kaltu and Sitai, who were family members of the applicants, who had died about 40 years ago and since thereafter, the said land was being used by father of the applicants who had constructed dalan, nand, charni and pashushala after death of his father, the applicants were occupying and using the said land. It is further mentioned that opposite party nos. 3 and 4, being neigbours of the applicants, were trying to take possession of the said land illegally and in effort of that, they had come to the house of the applicants and tried to take possession of their house, which was resisted by the applicants, whereon they were ruthlessly beaten up, regarding which, an N.C.R. was lodged by the applicants against opposite party no. 3 Parasnath Yadav and his son. It is further mentioned that the applicants had moved an application before opposite party no. 2 on 28.01.2014, which was kept on record by him, in which it was clearly mentioned that during the proceedings under Section 145(1) of the Code, opposite party nos. 3 and 4 demolished the construction of the boundary wall and had beaten the applicants with lathi danda, which is annexed as Annexure No. 8. With a mischievous aim to forcibly take possession over the said land, opposite party nos. 3 and 4 moved an application under Sections 145(1) and 146(1) of the Code for attachment of the said land on 30.01.2014, against which, the applicants filed an objection on 02.06.2014, stating therein that proceedings under Section 146(1) of the Code were wholly illegal and unwarranted as opposite party nos. 3 and 4 have no right or title over the disputed land. But the opposite party no. 2 did not consider this aspect of the matter and has passed the impugned order dated 02.06.2014 under Section 146 of the Code, by which he has attached abadi land of the applicants, which is annexed as Annexure No. 11. Opposite party no. 2 has not applied his judicious mind and has ignored the fact that the disputed land was recorded in the name of father of the applicants and that opposite party nos. 3 and 4 had got nothing to do with it. Further, it is mentioned that, in fact, the land of Gata No. 930 area 0.328 metre belonged to one Vishnu and after his death, a suit was filed by Dalai Ram, uncle of the applicants against Subai, who was father of the applicants in respect of partition of the same, which has been marked as 'A' 'B' 'C' 'D' 'E' 'F' in the suit of the plaintiff, which is pending in the court of Special Judge, Juvenile Division, Jaunpur as Original Suit No. 319 of 2004. In the said case, application 6c filed by Dalai Ram has not been decided as yet. It is surprising that even though the opposite party nos. 3 and 4 have no right or title over the said land, they have moved an application, claiming their share, which shows that they are absolute strangers to the abadi land of the applicants. Since the opposite party no. 2 is working arbitrarily and appears to be bent upon giving forcible possession to opposite party nos. 3 and 4 over the house of the applicants, therefore, in these compelling circumstances, a civil suit has been filed by the applicants, praying therein that opposite party nos. 3 and 4 be restrained from interfering in peaceful possession over the house in dispute and be further restrained from cutting trees and demolishing boundary wall of the applicants. It is further mentioned that on one hand, opposite party no. 2 has initiated proceedings under Section 107 of the Code read with Section 151 of the Code, directing both the parties to file their bonds to maintain peace, while at the same time, it had also issued proceedings under Section 146(1) of the Code despite the fact that title and possession of the applicants over the land is not in dispute. Therefore, the impugned order of attachment is nothing but an abuse of process of law and the application deserves to be allowed and the impugned orders deserve to be quashed.
3. From the side of opposite party nos. 3 and 4, counter affidavit dated 11.05.2019 has been filed, wherein it has been mentioned that the original door of the applicants' house is on the western side, but they have opened a new door on the eastern side to encroach upon the land of opposite party nos. 3 and 4. When in October 2013, they started encroachment, opposite party nos. 3 and 4 gave an application to the Station House Officer, Kotwali Macchali Shahar, who did not take any step, whereafter, an application was given to opposite party no. 2 to attach the disputed land and hand-over the same to a third person, against which, the present proceedings under Section 482 of the Code have been filed by the applicants and order of status quo has been passed by this Court, but the applicants have encroached upon the aforesaid land after the order of this Court, regarding which, opposite party nos. 3 and 4 have given an application to the police station concerned, but they have not taken any action. A true copy of the said application dated 27.08.2014 is annexed as Annexure No. CA-2. Further, it is mentioned that the applicants have succeeded to show their name in the khasra in collusion with one Halka Lekhpal illegally and arbitrarily. The disputed arazi belongs to the ancestors of opposite party nos. 3 and 4. The applicants have themselves admitted that they are not the owners of the said arazi and are claiming the same on the basis of possession. The applicants are only trying to pressurize opposite party nos. 3 and 4 by every means because they are poor people. The applicants have not only beaten opposite party nos. 3 and 4, but have also damaged their goods, photocopies of which are annexed as Annexure CA-3. The property in dispute never belonged to the applicants and they have succeeded due to money power to get the name of their father entered in the khasra in collusion with Halka Lekhpal.
4. From the side of the State, counter affidavit has been filed on 19.09.2014, stating therein that there was dispute between the applicants and Sushila Devi i.e. opposite party no. 4 and an enquiry was conducted of the spot by the tehsildar on 31.10.2013. The opposite party no. 4 had also moved an application under Section 145(1) of the Code for attachment of the property. There was dispute over arazi land Gata No. 930 area 0.328 hectare, rakba 27x11 sq. ft. and both the parties were active to take possession over the said disputed land. On the application made before the learned Magistrate, the same was considered and it transpired that there was litigation in the civil court between the parties and the police had also initiated proceedings under Section 107/116 of the Code by submitting a challani report in order to maintain peace at the spot. The learned Magistrate after considering these facts and finding strong apprehension of breach of peace, passed the order dated 01.11.2013 and directed the Station House Officer concerned to submit report and the parties were directed to appear before him and thereafter, the Magistrate passed an order on 02.06.2014 under Section 146(1) of the Code, directing attachment of the property under dispute and the same was directed to be given to some responsible person in supurdgi and against both the orders, the applicants have preferred the present application. Between the applicants and opposite party nos. 3 and 4, there was litigation of civil nature as well as challani report was made by the police and also, the parties proceeded against each other and the learned Magistrate, after considering the situation, has passed order under Sections 145(1) and 146(1) of the Code in order to keep peace at the spot. The said orders have been rightly passed, looking to the situation created at the spot as well as the report submitted by the tehsildar, because it was felt that there was great apprehension of breach of peace between the parties.
5. I have gone through the impugned order. Vide order dated 01.11.2013 passed under Section 145(1) of the Code, it has been directed that both the parties shall appear before the S.D.M., Machli Shahar on 14.11.2013 and shall file written statement and evidence, which was passed after being satisfied with the enquiry report submitted by tehsildar dated 31.10.2013, which disclosed that there was dispute of possession over arazi Gata No. 930 area 0.328 hectare, area 27x11 sq. ft. between the parties and therefore, there was strong likelihood of breach of peace. The other impugned order dated 02.06.2014 has been passed by opposite party no. 2, recording therein that on application given by opposite party no. 4 Sushila Devi, wife of Parasnath, opposite party no. 2, an enquiry report was called for from the Tehsildar, Machli Shahar,which was submitted on 31.10.2013 and being satisfied with the same, the order under Section 145(1) of the Code was passed on 01.11.2013. On 29.11.2013, the applicant no. 1 filed written statement and on 30.01.2014, another application was moved by opposite party no. 4 Sushila in order to get the disputed property attached under Section 145(1) of the Code, against which the applicant no. 1 had filed objection on 31.01.2014. After arguments of both the sides were heard by him, it was argued on behalf of opposite party no. 4 that the second party i.e. applicants were forcibly taking possession over the said land and there was likelihood of breach of peace on the spot and therefore, the said land was immediately required to be attached and be handed over to some independent person in supurdgi after being attached. The said argument was refuted by learned counsel for the applicants, stating that opposite party no. 4 did not have anything to do with the said land and that the applicants were in possession of the said land since the time of their ancestors and further that a civil suit was pending between the two sides and further that in order to maintain peace, proceedings under Section 107/116 of the Code could be taken which were already in force and hence, proceedings under Section 145 of the Code were not maintainable and the same deserved to be set aside. The finding recorded by the learned S.D.M. is that after having perused the report of the tehsildar dated 31.10.2013 and looking to the fact that already proceedings under Section 107/116 of the Code were in force, it was apparent that there was a strong dispute with respect to the possession over the disputed land, which had created tension on the spot between the two sides and any serious breach of peace could have occurred. Therefore, in order to maintain peace at the spot, it was necessary to attach the property and accordingly, order was passed on 02.06.2014, directing the S.H.O., Kotwali - Machhali Shahar to attach the said property and hand over to some independent person without any further delay and with respect to possession, both the parties were directed to extend their evidence before him on 27.06.2014.
6. It is apparent from the above pleadings as well as the impugned orders that the applicants are claiming ownership as well as possession over the disputed land on the basis of Kaltu and Sitai, who were owning that land earlier and had died 30 years ago, whereafter the applicants came into possession of the same and are stated to have constructed their houses and some khoonta, garbage bin etc. belonging to them which are also stated to be there on the spot belonging to them. How the ownership of the said land devolved upon them, no documentary evidence seems to be there and it appears, it is only claimed on the basis of long possession and construction made by the applicants over the said piece of land. The said ownership and possession is being disputed by opposite party nos. 3 and 4, who are claiming the said land as belonging to them and also stated that they were having a boundary wall also around it, which was broken by the applicants' side, regarding which, a report was lodged at the police station. Therefore, apparently, both the sides were claiming title as well as possession over the said land and also it is admitted that civil suit is pending between them. Apparently, it is the jurisdiction of the civil court to decide title and not that of the Magistrate. As far as proceedings under Sections 145(1) and 146(1) are concerned, if the Executive Magistrate is satisfied from report of police and upon other information that the dispute is likely to cause breach of peace concerning any land within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his court in person or by pleader on specified date and time to put in written statement to the claims in respect of fact of their actual possession of the subject of dispute. The Magistrate shall then, without reference to the merits or claims of any of the parties to the right to possess the subject of dispute, peruse the statement so put, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary and if possible and decide whether any and which of the parties was, at the date of the order made by him under sub-Section (1) of Section 145 of the Code, in possession of the subject of dispute and it is further provided that if it appears to the Magistrate that any party had been forcibly and wrongfully dispossessed within two months next before the date on which report of police officer or other information was received by the Magistrate, or after that date and before the date of the order under sub-Section (1), he shall restore the parties so dispossessed as if that party had been in possession on the date of order under sub-Section (1). Under Section 146 of the Code, the Magistrate, if at any time after making the order under sub-Section (1) of Section 145 of the Code, considers the case to be of emergency, or if he decides that none of the parties was then, in possession, as is referred Section 145 of the Code or if he is unable to satisfy himself as to which of them was in the possession of the subject of dispute, he may attach the subject of dispute until the competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. It is further 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 peace with regard to subject of dispute.
7. In view of above provisions of law, if the facts of the present case be analysed, it is apparent that there was report of tehsildar on record which indicated that there was apprehension of breach of peace between the two sides concerning the disputed land as both of them were claiming ownership and possession of the same. In such a situation, finding a strong possibility of breach of peace between the parties, the Magistrate appears to have rightly taken the decision to attach the property and has also invited the parties to appear before it and adduce evidence in support of their respective claims. Therefore, it is open to the Magistrate still to come to a conclusion as to which of the parties was in possession two months prior to the passing of this order under Section 145(1) of the Code and could restore possession accordingly. These proceedings appear to have been stayed by this Court vide order dated 25.07.2014, which needs to be vacated, because till the said order remains in force directing the parties to maintain status quo, the Magistrate concerned would not be able to proceed ahead and take evidence of both the sides and arrive at a conclusion with respect to the possession over the disputed property. It is apparent that the property which has been attached, shall remain attached only till the Magistrate comes to the conclusion as to who actually deserves delivery of possession of the said property, as to who was actually in possession within two months prior to issuing order under Section 145(1) of the Code. The Magistrate does not have power to judge the correctness or illegality of the possession because that is the domain of the civil court to judge the correctness of the possession as well as ownership of the parties.
8. In the present case, it is admitted to both the sides that civil suit is pending before the competent court having jurisdiction. Whatever judgment is delivered by the civil court shall prevail over the judgment and order given by the Executive Magistrate in the present matter as there is no dispute that it is the civil court decree which would prevail with respect to the possession as well as ownership. But as on date, if the Executive Magistrate has found that there was strong apprehension of breach of peace between the parties and there was an emergent situation, then it was well within his right to attach the property.
9. In view of the aforesaid facts and circumstances of the case, I do not see any infirmity in the impugned orders dated 01.11.2013 and 02.06.2014. The stay stands vacated and this application stands rejected with a direction that the Executive Magistrate shall decide expeditiously the case under Section 146(1) of the Code in accordance with the provision of law and take just decision in respect of restoring possession if it comes to the conclusion in respect of the same, failing which, he will continue to keep the property attached till the time he finds that there was no situation of any emergent breach of peace. In case in the meantime, the decision of civil court comes, the Executive Magistrate shall be bound by the judgment of the civil court and will act accordingly.
10. Further, it is directed that the parties may approach the civil court for seeking expeditious disposal of the civil suit pending before it. In case any such application is moved by either of the parties, the civil court shall take all necessary measures to decide the civil suit expeditiously so as to end the dispute finally between the parties.
Order Date :- December 17, 2019 I. Batabyal [Dinesh Kumar Singh-I, J.]
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