Rajasthan High Court - Jaipur
Peer Gulam Jilani S/O Peer Gulam Sarvar ... vs State Of Rajasthan on 6 August, 2019
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 1143/2019
Peer Gulam Jilani S/o Peer Gulam Sarvar Sahib B/c Peerjada
Musalman, Aged About 72 Years, R/o Ward No.19, Fatehpur
Sekhawati District Sikar.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp.
2. Mozam Ali S/o Jafar Ahmad B/c Peerjada Musalman, R/o
Kasba Fatehpur District Sikar.
3. Hanuman S/o Chunna B/c Mali, Aged About 80 Years, R/o
Fatehpur Rajasthan.
----Respondents
For Petitioner(s) : Mr.Kapil Bardar
For Respondent(s) : Mr.Rishi Raj Singh Rathore
For State Mr.F.R.Meena,PP
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Order
DATE OF ORDER 06/08/2019
1. The matter comes up for vacation of exparte-interim order, but with consent of parties the matter is taken up for final disposal at admission stage.
2. Petitioner has preferred this Criminal Misc. Petition aggrieved by order dated 17.12.2018 passed by Additional Sessions Judge Fatehpur, District Sikar whereby criminal revision filed by the petitioner was dismissed and order of cognizance passed by Additional Chief Judicial Magistrate Fatehpur, District Sikar accepting the protest petition was confirmed. It is also prayed in the petition that FIR No.73/1989 qua the petitioner be quashed. (Downloaded on 29/08/2019 at 10:41:21 PM)
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3. It is contended by counsel for the petitioner that petitioner is a bonafide purchaser. Police after due investigation submitted negative final report. On protest petition filed by the complainant the Court below has taken cognizance against the petitioner under Section 420 IPC. Revision petition was preferred both by the complainant as well as the accused. Revision filed by accused was dismissed whereas in the revision filed by the complainant the revisional Court has directed the Court below to hear both the parties and decide whether the offence is made out under Sections 467, 468 471 and 120-B IPC.
4. Counsel for the petitioner contends that Khasra No.1038 belonged to Chunna Mali and agreement to sale was executed in favour of petitioner. Mutation entries were made in revenue record on 30.12.1967. The complainant challenged the mutation entries. Mutation entries were set aside by order dated 09.07.1974 the same was challenged, which order was upheld by Board of Revenue. Review petition was also dismissed.
5. It is contended that there is delay in lodging of FIR. The Court below has not assigned any reason for disbelieving the report submitted by the Investigating Officer and has taken cognizance against the petitioner. It is also contended that the dispute is of a civil nature.
6. Counsel for the petitioner has placed reliance on Inder Mohan Goswami and Ors. vs. State of Uttaranchal and Ors. (2007 (12) SCC 1), Suraj Singh & Ors. vs. State of Rajasthan (RCC 1988 474), Ashwani Kumar vs. State of Rajasthan (RCC 1987 300), Bhagwan Sahai Khandelwal & Ors. vs. State of Rajasthan & Anr.(2006 (1) RLW 640), Joseph Salva Raja vs. State of Rajasthan & Ors. (2011 7 (Downloaded on 29/08/2019 at 10:41:21 PM) (3 of 5) [CRLMP-1143/2019] SCC 59), Paramjeet Batra vs. State of Uttarakhand & Ors. (Cr.L.R. SC 67) and Rajendra Prakash & Anr. Vs. State of Rajasthan & Anr. (2011 Cr.L.R.(Raj.471)
7. Learned Public Prosecutor and counsel for the complainant have opposed the criminal misc. petition. It is contended that the petitioner has prepared a forged agreement to sale. Chunna Mali expired in the year 1952. The agreement pertains to two and half bigha of land and purposely petitioner mentioned the total value at Rs.95/- to avoid registration of the document and to create a back dated document. It is contended that petitioner is trying to grab the property of wakf. Civil proceedings were also initiated against the petitioner and the Supreme Court hearing Civil Appeal No.10770-10773/2013 has dismissed all the appeals of the petitioner vide order dated 24.07.2019 and has come to the conclusion that petitioner-Peer Gulam Jilani was eligible to be nominated as Sajjadah Nashin and Mutawalli. Counsel for the complainant has placed reliance on Sayyed Ali & Ors. vs. A.P.Wakf Board, Hyderabad & Ors.(1998 2 SCC 642) wherein the Apex Court has held that once a wakf always a wakf and mere grant of patta in favour of individuals could not change the original character of the wakf property.
8. It is also contended that Khasra No.1038 is not a private property it stands in name of Dargah Khwaja Nazmuddin Sahab. Hanuman was not khatedar and in the gazette dated 3.3.1966 notice was issued that the property is wakf property. It is contended that the Court below while taking cognizance has dealt with the entire material. It has come to the conclusion that petitioner in connivance with the Patwari got his name entered in the revenue record and name of Chunna Mali as agriculturist with (Downloaded on 29/08/2019 at 10:41:21 PM) (4 of 5) [CRLMP-1143/2019] an intention to grab the property, Chunna Mali was not alive at that time. It is also contended that Chunna Mali had two sons Debu and Hanuman. Debu was alive on the date when the alleged agreement to sale is said to have been executed. Hanuman was never recorded as the khatedar in the revenue record. It is also contended that the stamp of back date has been purchased by the petitioner. Hanuman has also given a declaration that he has never sold any property to the petitioner and that his thumb impressions have been obtained by the petitioner. In the agreement entered into between Hanuman and petitioner it is mentioned that Hanuman is the only son of Chunna Ram and he is the owner, which is factually incorrect.
9. I have considered the submissions.
10. There is specific allegation against the petitioner in the FIR that he has prepared an agreement to sale to grab the property belonging to wakf. Chunna Mali had expired in the year 1952 and one of his sons would not have executed the agreement to sale. It appears that 2.5 bighas of land was purposely valued at Rs.95 to create an agreement on a backdate. As for valuation, above Rs.100/- property cannot be transferred except by a registered document, his son has also denied having executed an agreement in favour of the petitioner.
11. In view of the same, there was no error in the impugned order vide which Court has taken cognizance. Petitioner has already availed the remedy of revision. Second revision is barred under sub-section (3) of Section 397 Cr.P.C. Present is not a case of an exceptional nature so as to exercise the inherent powers. Hence, this Court is not inclined to invoke its inherent powers. (Downloaded on 29/08/2019 at 10:41:21 PM)
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12. The criminal misc. petition is accordingly dismissed. Stay application also stands disposed.
(PANKAJ BHANDARI),J teekam/reserved order (Downloaded on 29/08/2019 at 10:41:21 PM) Powered by TCPDF (www.tcpdf.org)