Allahabad High Court
Dharamveer Son Of Late Khushi Ram (In ... vs State Of U.P. on 4 October, 2007
Author: Ravindra Singh
Bench: Ravindra Singh
JUDGMENT Ravindra Singh, J.
1. This application has been filed by the applicant Dharamvir with a prayer that he may be released on bail in case crime No. 208 of 2007 under Sections 420, 467, 468, 471, 120B I.P.C. P.S. Kasna district Gautam Budh Nagar.
2. The facts of the case in brief are that the F.I.R. of this case has been lodged by Sri Babu Singh, Lekhpal on 4.5.2007 at 11.20 p.m. against the applicant Dharmvir alleging therein that in a fraudulent manner by committing fraud the land of the Gaon Sabha has been sold by the applicant. The land of khata No. 2 Khasra No. 1M area 5.0590 (its old no 1MI/8-16-0 and 4 Ml/5-12-0 and 5 Ml/4-3-0 6 Ml/1-9-0 total 4 kita having the area of 20 bigha Pukhta of Goan Sabha Tilwara tehsil and district Gautam Budh Nagar was ordered to be recorded in the name of the Gaon Sabha by the S.D.M. Sikandrabad on 30.3.1998, against the order dated 30.3.1998 a revision No. 19 of 1997 Mahabir and other v. Dharmvir and Ors. and revision No. 31 of 1997 Dharamvir Singh v. Mahavir Singh and Ors. under Section 219 L.R. Act were filed but both the revisions were dismissed and order dated 30.3.1998 was confirmed, but by manipulation the order dated 30.3.1998, could not execute in the revenue records the name of the Gaon Sabha was not recorded, concealing the same, the above mentioned land was sold by the applicant to Ajit Singh, Gyanedra Singh, Hatim Singh and Kuldeep Singh and obtained illegal gain. The applicant applied for bail before the learned Sessions Judge, Gautam Budh Nagar the same has been rejected by the learned in-charge sessions Judge, Gautam Budh Nagar on 28.2.2007, being aggrieved from the order dated 28.2.2008 the applicant has moved the present bail application.
3. Heard Sri J.S. Sengar learned Counsel for the applicant, learned A.G.A. and Sri S.K. Dubey, learned Counsel fort he complainant.
4. It is contended by the learned Counsel for the applicant that at the time of the execution of the sale deed, the applicant was the owner of the land in dispute, his name was recorded in the revenue record and he was in possession of the same land, the FIR has been lodged by the Lekhpal with ulterior motive. The order dated 30.3.1998 passed by he learned S.D.M. Sikandrabad was not a final order, it was challenged in the court of Commissioner Meerut Division Meerut by way of filing a revision, after dismissal of the revision a writ petition No. 17788 of 2007 Dharamvir v. State of U.P. and Ors. has been filed before this Hon'ble Court, which is pending. Therefore, the allegation that the order dated 30.3.1998 became final, is absolutely false. The land in dispute was recorded in the name of the applicant on the basis of a family settlement vide order dated 30.9 1996 passed by the S.D.M Sikandrabad, the applicant was having he right to transfer the same land. The land in dispute was never recorded the name of the Gaon Sabha in the revenue record, it was recorded in the name of the applicant about 44 years prior to that it was in the name of the ancestors of the applicant. The applicant got exclusive right of the land in dispute in the year 1964. The applicant has not executed any rorged sale deed. The applicant has filed the original Suit No. 169 of 2007 against the Gaon Sabha in the court of learned Civil Judge (Junior Division) Gautam Budh Nagar with a prayer that he may not be dispossessed from the land in dispute because he was in possession since 1960 in respect of the same land, the father of the applicant namely Khushi Ram filed a writ petition No. 11606 of 1983 before this Court in the year 1983, in which the order dated 28.9.1983 was passed that till further order father of the applicant and others may not be dispossessed. The order of the learned S.D.M. was passed on 30.3.1998 and the F.I.R. was lodged on 4.5.2007 i.e. after nine years of the alleged incident. There is no plausible explanation of this inordinate delay. The F.I.R. has been lodged with malafide intention. The applicant had demanded the copies of khasra and khatauni for which the first informant had demanded the money, the same was not paid to him that is why the present F.I.R. has been lodged. The applicant was in service is the year 1973, he has been retired on 31.1.2001. He is an old man aged about 67 years suffering from heart ailment. The applicant is having no issue, his wife is also ailing for a long period. This case is of civil nature, proper remedy of cancellation of the sale deed was available, is is also surprising that in the present case Ajit Singh and two others who are vendees have not lodged any F.I.R. and no case for cancellation of the sale deed has been filed by the Gaon Sabha and the name of Ajit Singh and three others has been mutated in the revenue record. The applicant is an innocent man. He has been falsely implicated in the present case. He may be released on bail.
5. In reply of the above contention, it is submitted by the learned A.G.A. and the learned Counsel for the complainant that the S.D.M. has passed the order to record the name of the Gaon Sabha at the place of the applicant in the revenue record. The order dated 30.3.1998 was challenged by way of filing a revision, the same was dismissed, against which a writ petition has been filed, but no interim relief has been granted to the applicant. In a pre planed manner, the name of the Gaon Sabha could not be entered into the revenue record, at the instance of the applicant. The land was also mutated in the name of the vendees. The applicant executed a sale deed in respect of the land in dispute on 30.4.2003 on that date, he was not the owner of the land in dispute, in the sale deed it has been mentioned that the applicant was the owner of the land in dispute. The land was not of the Gaon Sabha and was not obtained on lease or Bhudan, it was a transferable land, it was having no dispute' whereas revision against the order dated 30.3.1998 was pending in the court of learned Commissioner, Meerut. The applicant has concealed the material fact and executed a sale deed in respect of the land of which he was having no ownership. The applicant has played fraud and forgery and obtained an illegal gain. Now the revenue authorities have also taken action against the applicant on 31.1.2006. It is further contended that by committing forgery, the name of the ancestors of the applicant was recorded in the revenue record and in such matter the delay in lodging the F.I.R. is not very material, on the basis of delay, the prosecution story may not be disbelieved.
6. Considering the facts and circumstances of the case and submissions made by the learned Counsel for the applicant and the learned A.G.A. and form the perusal of the record, it appears that the applicant was having full knowledge that was not owner of the land in dispute even then executed a sale deed on 30.4.3004 in favour of Ajit Singh and others knowing it well that S.D.M. Sikandrabad had passed order dated 30.3.1998 to record the name of the Gaon Sabha in the revenue record at the place of the applicant's name against which a revision was filed by the applicant, which was also pending. He was not having the ownership on the date of execution of sale deed and he was having no right to sell the land in dispute and in the sale deed also the applicant had concealed the material facts as of recording the order dated 30.3.1998 passed by the S.D.M. Sikandrabad pendency of the revision in the court of Commissioner, Meerut and without expressing any opinion on the merits of the case, the applicant is not entitled for bail at this state, the prayer for bail is refused.
7. Accordingly this application is rejected.