Court No. - 65
Case :- MATTERS UNDER ARTICLE 227 No. - 447 of 2019 Petitioner :- Ravindra Kumar Singh And 2 Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Ajay Shandilya,Ram Chandra Solanki Counsel for Respondent :- G.A.,Krishna Nand Rai,Vijay Anand Rai
Hon'ble Karuna Nand Bajpayee,J. Hon'ble Ifaqat Ali Khan,J.
Heard petitioners' counsel, learned counsel for opposite party no.2 and learned AGA for the State and perused the record.
Submission of the petitioners' counsel is that disputed sale deed of the year 2003 was executed in favour of opposite party no.2 but the seller was not actually entitled to sell the property at that time and therefore an F.I.R. was lodged against the person who executed the sale deed. In 2011 an agreement to sell was prepared in favour of petitioner no.1 by petitioner nos.2 and 3. The disputed land is well within the possession of petitioner no.1 now and before this it was in possession of petitioner nos.2 and 3. The mutation was never done in favour of opposite party no.2. Learned counsel has placed reliance on Annexure No.9 which is said to be an order passed by Deputy Director Consolidation, Varanasi by way of which the application of mutation moved by opposite party no.2 was rejected on the basis of sale deed. The petitioner nos.2 and 3 are the recorded owners of the property while there is an agreement to sell in favour of petitioner no.1. Submission is that the controversy involved is such which is essentially of civil in nature and deliberately criminal complexion has been given to the same and therefore, criminal proceedings are not maintainable in this case. Submission is that malafides behind the prosecution are apparent on the face of record and if the proceedings against the applicants are allowed to go on, it will result in the abuse of court's process.
Learned counsel for the opposite party no.2 submits that Mahendra Pratap Singh and Yogendra Pratap Singh purchased the property from Bal Krishna Pathak and Ram Krishna Pathak sons of Ram Surat Pathak. The property of plot no.791 belongs to one Ayodhya Prasad. Ayodhya Prasad had four sons. One son died issueless. Rest of the three sons had 1/3rd share each in the property. In 1972, Laxmi Narayan son of Ayodhya Prasad, Sharda, Sheetla and Tilak sons of Ram Narayan another son of Ayodhya Prasad executed four sale deeds. One sale deed was executed in favour of Omkar Pathak, another sale deed was also executed on the same date in favour of Ram Shankar and Daya Shankar. 13 decimal land has been taken by the State for construction of road. The remaining land was 66 decimal in area on the basis of 1/3rd share, each son had therefore 22 decimal land. Laxmi Narayan and sons of Ram Narayan executed four sale deeds in the year 1972 measuring total area of about 50 decimal and thus they crossed the limit of their share and sold the property which never belonged to them. This land actually belonged to one Purushottam who is the father of Ram Surat. Opposite party no.2 purchased this property from the grand sons of Purushottam. Further submission is that in CH form 23 an entry was made on the basis of the judicial order which still exists till today which is in favour of respondent no.2.
Contentions raised at the bar require detailed hearing on law and facts both.
Notice on behalf of opposite party No.1 has been accepted by learned AGA.
Issue notice to the opposite party no.2 returnable within four weeks.
Opposite party no.2 may file counter affidavit within three weeks after the service. Learned AGA may also file counter affidavit within the same period. Rejoinder affidavit may be filed within two weeks thereafter.
List this matter immediately after expiry of the aforesaid period before the appropriate bench.
Till the next date of listing further proceedings of orders dated 20.11.2018 and 30.7.2018 in Case No.913 of 2012 (State vs. Ravindra Singh and others) arising out of Case Crime No.66 of 2011, u/s 419, 420 I.P.C., P.S.- Kapsethi, District- Varanasi with regard to applicants namely Ravindra Kumar Singh, Satya Narayan Pathak and Prabhu Narayan Pathak shall remain stayed.
Order Date :- 22.1.2019 shiv