Allahabad High Court
Jitendra Nath Upadhyay vs State Of U.P. And 2 Others on 2 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2026:AHC:70329 HIGH COURT OF JUDICATURE AT ALLAHABAD MATTERS UNDER ARTICLE 227 No. - 4216 of 2026 Jitendra Nath Upadhyay .....Petitioner(s) Versus State Of U.P. And 2 Others .....Respondent(s) Counsel for Petitioner(s) : Uday Nath Upadhyay Counsel for Respondent(s) : G.A., Vivek Tripathi Court No. - 73 HON'BLE VIKRAM D. CHAUHAN, J.
1. Sri Pradeep Chauhan, Advocate has filed his Vakalatnama on behalf of respondent nos.2 and 3, which is taken on record.
2. This petition is filed by the petitioner praying for following relief:-
"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and grant interim relief as directing to contesting respondent to not close the disputed Gate during the pendency of this misc. petition and it is further prayed that this Hon'ble Court may graciously be pleased to stay the impugned judgment and order dated 21.11.2025 passed by the Learned Special Judge, S.C./S.T. Act, Varanasi in Criminal Revision case no.297 of 2023 (Jitendra Nath Upadhyay Vs. State of U.P. and others), as well as judgment and order dated 28.07.2023 passed by Sub-District Magistrate (S.D.M.) Pindra District Varanasi in application u/s 133 of Cr.P.C. case no.10328 of 2021 (Jitendra Nath Upadhyay Vs. Rajesh Kumar Mishra & others), otherwise the petitioner was well as general public shall suffer irreparable loss and injury. And/or pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."
3. It is submitted by learned counsel for the petitioner that proceedings under Section 133 Cr.P.C. were initiated on account of the fact that on the disputed land a gate that was on the aforesaid land was closed, as a result of the same, the villagers easementary right to pass through the aforesaid land was effected and as such proceedings were drawn under Section 133 Cr.P.C. The aforesaid proceedings has been rejected by the court concerned on the ground that the finding has been recorded that the land in question belongs to respondent nos.2 and 3-objector and a gate has also been erected. It has also been held that a civil suit in respect of the same is also pending between the parties. The revision against the order dated 20.7.2023 was filed, which has also been rejected by the impugned order dated 21.11.2025.
4. Learned counsel for the petitioner submits that the court concerned has incorrectly rejected the application on the ground that the civil suit is pending and he submits that despite the pendency of the civil suit the rights arising out of the obstruction to travel through the land stands intact under Section 133 Cr.P.C. The court concerned has incorrectly recorded the finding that the land in question is a bhumidhari of respondent nos.2 and 3.
5. Learned counsel for the petitioner has relied upon page 60 of the writ petition to submit that the respondent nos.2 and 3 has not received any compensation from any department in respect of the land, as a result of the same, there is a surrender of the right of the respondent nos.2 and 3 in respect of the land in question.
6. It is to be seen that the court of first instance as well as the revisional court has recorded the finding that the land in question belongs to the respondent nos.2 and 3-objector. It has also been demonstrated from the plaint filed by the petitioner before the civil court that the relief claimed in the aforesaid plaint is a right by way of easementary right.
7. It is to be noted that an easementary right is a right arises as a result of long usage of the land by the public. Such easementary right cannot be considered and decided under Section 133 Cr.P.C. It has not been demonstrated before this Court that the land in question belongs to the Government or public. The submission of learned counsel for the petitioner is that the villagers would have no other pathway of ingress and outgress from the village if the aforesaid right of pathway is not recognized. The map filed by the petitioner at page 57 of the petition shown one more ingress and outgress pathway to the village, although learned counsel for the petitioner has submitted that the land in question is a metal road.
8. It is further to be seen that the question whether the metal road would create any right or would amount to surrender of title in favour of government is a question of fact, which is required to be looked into at the civil court.
9. At this stage, the disputed question of fact cannot be considered. The writ petition is, accordingly, dismissed. Any finding recorded in the impugned order would abide by the result of the civil court.
(Vikram D. Chauhan,J.) April 2, 2026 Bhaskar