Allahabad High Court
Manoj Kumar And 5 Others vs State Of U.P. And 2 Others on 17 November, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 87 Case :- APPLICATION U/S 482 No. - 14830 of 2020 Applicant :- Manoj Kumar And 5 Others Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Sanjai Kumar Pandey Counsel for Opposite Party :- G.A.,Seema Pandey Hon'ble Raj Beer Singh,J.
1. Counter affidavit on behalf of opposite party no. 3, filed in Court today, is taken on record.
2. Heard learned counsel for the applicants, learned counsel for opposite party no. 3 and learned A.G.A. for the State.
3. The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 26.08.2020 passed by learned Additional Sessions Judge, Court No.1, Siddharth Nagar in criminal revision no. 26 of 2020 and order dated 21.05.2020 passed by the Sub Divisional Magistrate, Bansi, district Siddharth Nagar in criminal case no. 1361 of 2020 (computerized case no. T202017630201361), under Sections 145(1) and 146(1) Cr.P.C., police station Khesraha, district Siddharth Nagar as well as for quashing of the entire proceedings of criminal case no. 1361 of 2020.
4. It has been argued by learned counsel for the applicants that impugned orders are against facts and law and thus, liable to be set aside. It was submitted that one Swami Nath was the owner of disputed property, who has three sons, namely, Chumman, Mahanath and Ram Ugrah and the sons of Swami Nath inherited 1/3rd share each, but no partition has taken place among them. It was submitted that Mahanath was issue-less and he has given half share of his property to applicant nos. 4 to 6 and half share of his property was given to the sons of Ram Ugrah, namely, Prem Shankar and Uma Shankar and their names were recorded in the revenue record. It was further submitted that Uma Shankar has four daughters including opposite party no. 3 and after death of Uma Shankar, name of his wife Smt. Vidyawati was recorded in the revenue record and that opposite party no. 3 is claiming that her mother Vidyawati has executed a will deed in her favour. Learned counsel has submitted that on the basis of said will deed, opposite party no. 3 was interfering in peaceful possession of applicants over disputed property and that applicant no. 1 has filed a civil suit being O.S. No. 230 of 2019 before the court of Civil Judge(SD), Siddharth Nagar for permanent injunction and cancellation of will-deed, but no ex-parte injunction has been granted and notice has been issued to opposite party no. 3. Learned counsel has further submitted that applicants are in possession over the property in dispute and that proceedings under Section 145 Cr.P.C. were initiated without any just reason and cause. It was submitted that opposite party no. 3 herself has admitted that property in dispute is joint property and partition has not taken place. The concerned Sub Divisional Magistrate has not recorded any reason, which may indicate any emergency or urgency for passing the order of attachment of disputed property. There is nothing to indicate that on what basis the concerned S.D.M. has reached to the conclusion that there is apprehension of breach of peace over the disputed property. Learned counsel has given much thrust to the argument that as the property attached by impugned order is a joint property of applicants and opposite party no. 3 and no partition has taken place, thus, proceedings under Sections 145(1) and 146(1) Cr.P.C. cannot be initiated. In support of his contentions, learned counsel for the applicants has relied upon the cases of Ramdhani Pandey vs. Raghunath Pandey And Another (2007(1)JIC 17(All)), Jayanti Prasad And Ors. vs. Kamal Narain And Ors. (1998 CriLJ 4689) and Dharmendra Rajput vs. State of U.P. & Ors. (Criminal Misc. Writ Petition No. 12303 of 2010).
5. On the other hand, learned A.G.A. and learned counsel for opposite party no. 3 have opposed the application and argued that there is no illegality or impropriety in the impugned orders. It has submitted by learned counsel for opposite party no. 3 that property in question was obtained by opposite party no. 3 from her mother through a registered will and that sisters of opposite party no. 3 have never raised any objection regarding the will and that applicants have no right to raise any question over the will executed by her mother. It was further submitted that opposite party no. 3 is in possession over the disputed property and that it was the applicants who were interfering in her peaceful possession.
6. I have considered the rival submissions of learned counsel for the parties and perused the record.
7. After hearing learned counsel for the parties and perusing the record, it appears that applicants and opposite party no. 3 are co-sharers in disputed property and their names have been recorded as joint tenure holders in respect of disputed property. This fact is not disputed by the learned counsel for opposite party no.3. It is well settled position of law that when mutual partition is not established, the proceedings under Section 145 Cr.P.C. cannot be initiated between co-sharers.
8. In the case of Ramdhani Pandey vs. Raghunath Pandey And Another (2007(1)JIC 17 (All)), this Court has held that if the parties are real brothers and there was no partition between the parties and all were co-sharers, no member of a joint family can claim any part of the joint family property exclusively for himself and Sub-Divisional Magistrate was justified in dropping the proceedings under section 145 Cr.P.C.
9. In the case of Ram Subhag Pandey Versus State of U.P. & others 2001 (42) ACC 768, this Court has held that "if the dispute was regarding joint holding or property jointly possessed and partition suit was pending, then use of provisions of section 145 Cr.P.C. is an abuse of process of the Court and orders under sections 145 (1) Cr.P.C. and 146 (1) Cr.P.C. were quashed."
10. In the case of Vijay Singh Versus First Addl. Sessions Judge, Saharanpur & others 1991 (28) ACC 99, it was held that "if the property was found to be in joint possession of parties, resort to proceedings under section 145 (6) Cr.P.C. cannot be taken."
11. In the case of Gopal & others Versus State of U.P. & others 2001 (2) JIC 459 (All), it was held that "where the parties were jointly recorded co-tenure holders, the Magistrate had no power or jurisdiction to put parties in possession as per their shares in the disputed property and no proceedings under section 145 Cr.P.C. could be legally initiated. There was lack of jurisdiction in passing preliminary and order of attachment."
12. In the case of Uma Nath & another Versus State of U.P. & others 2001 (2) A.Cr.R. 1585, it was held that "the proceedings under section 145 Cr.P.C. cannot be initiated in respect of joint property or joint holding or joint possession and in such a case, orders under sections 145 (1) Cr.P.C. and 146 (1) Cr.P.C. are without jurisdiction and, therefore, cannot be said to be interlocutory orders and Sessions Judge has jurisdiction to entertain the revision."
13. In the case of Jayanti Prasad & others Versus Kamal Narain & others 1998 (36) ACC 392, it was held that "if there was a dispute between the co-sharers and mutual partition was not established, proceedings under section 145 Cr.P.C. cannot be initiated."
14. From Above case laws, it is clear that if dispute is between co-sharers of land and partition has not taken place, the proceedings under Section 145 Cr.P.C. must not be resorted to.
15. Coming to the facts of the present case, it is apparent that both the parties are co-sharers in disputed properties and partition has not taken place, but it appears that said fact and relevant laws has not been taken into consideration by the courts below. Thus, the impugned orders are not in accordance with law. However, the opposite party no. 3 is at liberty to institute a case for partition, if so advised.
16. In view of the aforesaid facts and circumstances of the case, the impugned orders dated 26.08.2020 passed by learned Additional Sessions Judge, Court No.1, Siddharth Nagar in criminal revision no. 26 of 2020 and dated 21.05.2020 passed by learned Sub Divisional Magistrate, Bansi, district Siddharth Nagar in criminal case no. 1361 of 2020, under Sections 145(1) and 146(1) Cr.P.C., police station Khesraha, district Siddharth Nagar are hereby set aside.
17. Accordingly, the instant application under Section 482 Cr.P.C. is disposed of in above terms.
Order Date :- 17.11.2020 Anand