Allahabad High Court
Jai Veer Singh And 5 Others vs State Of U.P. And 2 Others on 9 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2540
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Court No. - 66 Case :- MATTERS UNDER ARTICLE 227 No. - 6222 of 2018 Petitioner :- Jai Veer Singh And 5 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Mukesh Kumar Counsel for Respondent :- G.A.,Anirudh Kumar Upadhyay,Raj Bahadur Verma Hon'ble J.J. Munir,J.
The petitioners here complain that the Executive Magistrate, in the purported exercise of his power under Section 145 (1) of the Code of Criminal Procedure, 19731 has usurped the civil court's jurisdiction and passed orders that only the civil court could have done.
2. Truly speaking, the controversy involved in this petition under Article 227 of the Constitution is about the Executive Magistrate's jurisdiction to pass the order impugned dated 13.01.2017, under Section 145 of the Code, that has met with approval of the Additional Sessions Judge in a revision carried by the petitioners from the Magistrate's order.
3. The dispute is about 16 decimals of land, a part of Khasra No. 359, situated in Mauza Abhaipur, Pargana Shamshadbad East, Tehsil - Sadar, District - Farrukhabad. The total area of Khasra No. 359 is 1.43 acres. Smt. Radha, wife of Luxmi Narain and Smt. Tara Devi, wife of Vidwan Singh, both natives of Village Abhaipur, Police Station - Mohammadabad, District - Farrukhabad claim to be the title holders in possession of the 16 decimals of Khasra No. 359 last mentioned. The land aforesaid is hereinafter referred to as "the land in dispute". Smt. Radha and Smt. Tara Devi are respondent nos. 2 and 3 to this petition. For the sake of convenience, they shall hereinafter be referred to as "the respondents".
4. The petitioners are six in number. Jai Veer Singh, Badan Singh, Jeet Pal, are sons of Prem Raj, and Anand, Arun, Sangeet, are sons of Rustam Singh. The proceedings before the Magistrate were commenced by the respondents, under Section 145 (1) of the Code against Jai Veer Singh, Rustam Singh, Badan Singh and Jeet Pal Singh, all sons of Prem Raj and Mahipal Singh and Ajay Singh, both sons of Saudan Singh. Of all the original parties to the proceedings before the Magistrate, Rustam Singh appears to have passed away and his interest before this Court is represented by his three sons Anand, Arun and Sangeet. The other two parties to the proceedings before the Magistrate, Mahipal Singh and Ajay Singh, have not come up against the orders impugned. In these proceedings, Jai Veer Singh, Anand, Arun, Sangeet, Badan Singh and Jeet Pal shall be hereinafter collectively referred to as "the petitioners". This collective description will bear reference to the interest of Mahipal Singh and Ajay Singh, sons of Saudan Singh, who have not come up against the impugned orders. The respondents made an application to the Sub-Divisional Magistrate, Sadar, Farrukhabad on 24.02.2014, under Section 145 of the Code, wherein the substance of the respondents' case is no more than this, that the petitioners forcibly and illegally want to dispossess the respondents from the property in dispute, and by doing that, they design to block a public way to the east of the property. It is also said that in case the petitioners forcibly and illegally dispossess the respondents from the land in dispute, the public way to the east of that land would be obstructed, which would cause the respondents irreparable injury. It is also asserted that in case the petitioners dispossess the respondents, their purpose of instituting the proceedings would be rendered infructuous. It is prayed on behalf of the respondents that the Sub-Divisional Magistrate may injunct the petitioners from forcibly and illegally dispossessing the respondents and take all necessary proceedings for the purpose.
5. It needs mention here that the petitioners' claim to the property in dispute as heirs of a certain late Smt. Phula, widow of Lalta Singh, through their deceased father, the late Puttu, claiming her 1/9th share located to the west of the village road. The said share, according to the petitioners, works out to an area of 16 decimals.
6. It appears that on the Magistrate ordering the Station House Officer, Kotwali Mohammadabad, District - Farrukhabad to hold an inquiry into the allegations and submit a report, the police submitted a report dated 14.03.2014 to the Magistrate. A perusal of the police report shows that the respondents are natives of Village Abhaipur. Their father, Puttu, passed away, in consequence whereof, their names have been entered in the khatauni relating to the land in dispute. The report records the respondents' allegation that the petitioners want to forcibly take possession of the land in dispute, and that they threaten them. The report also records the respondents' apprehension that the petitioners may take forcible possession of the land in dispute at any time. A site-plan of the property in dispute was also attached to the police report. On the basis of the police report, the Magistrate passed a preliminary order under Section 145 (1) of the Code on 27.07.2016, directing the parties to appear, put in their written statements and lead evidence in support of their respective cases. Later on, on 11.11.2016, the Magistrate passed an order under Section 146 (1) of the Code, directing attachment of the property in dispute on the ground of emergency, pending determination of proceedings under Section 145. That order records that during a tour of the area, the Magistrate did an inspection of the spot and found that there was tension prevailing between the parties concerning the land in dispute, which gave rise to an apprehension of breach of peace. He, therefore, ordered the land in dispute to be attached and delivered into the custody of any respectable person. The police were directed to carry out attachment and submit a report. The land in dispute was attached by the police on 14.12.2016 and given into the possession of one Natthu Singh, acting as the supurdgar.
7. After the parties led evidence, the case under Section 145 came up for determination before the Magistrate on 13.01.2017. The Magistrate ordered that the preliminary order dated 17.07.2016 passed by him is made absolute and the order dated 11.11.2016 under Section 146 (1) stands withdrawn. The petitioners were injuncted from interfering with the respondents' possession over the land in dispute. In case they had taken possession of the said land, they were ordered to vacate it within a week.
8. This order of the Magistrate's was challenged by the petitioners before the learned Sessions Judge, vide Criminal Revision No. 186 of 2017. This revision came up for determination before the learned Additional Sessions Judge, Court No. 6/Special Judge (E.C. Act), Farrukhabad on 24.05.2018. He has dismissed the revision and affirmed the Magistrate's order dated 13.01.2017.
9. Aggrieved, this petition under Article 227 of the Constitution has been filed.
10. The parties have brought a wealth of material on record in support of their respective cases about title to and possession of the property in dispute. This, they have done, through papers annexed to the writ petition, a counter affidavit dated 01.10.2018 filed by the respondents, a rejoinder affidavit dated 23.09.2020 on behalf of the petitioners, a supplementary affidavit dated 04.10.2020 filed by the petitioner, a supplementary short counter affidavit dated 09.10.2020 and a supplementary rejoinder affidavit in answer to it by the petitioners dated 13.10.2020.
11. Heard Mr. Mukesh Kumar Singh, learned counsel for the petitioners, Mr. Aniruddh Singh, learned counsel appearing on behalf of the respondents and Mr. Indrajit Singh, learned Additional Government Advocate appearing on behalf of the State of Uttar Pradesh.
12. The petitioners lay claim to the property in dispute, on the basis of title to a 1/16th share in Khasra No. 359 that they have purchased from one Tehsildar, son of Sultan, by means of a registered sale deed dated 05.10.1987 and a further accretion to their rights in the said khasra number by transfer of the 1/16th share of Smt. Kokila Devi, wife of the late Puttu, in Khasra No. 359 vide registered sale deed dated 08.07.1988 executed in favour of Smt. Kokila Devi, wife of the late Prem Raj, mother of petitioners Jai Veer Singh, Badan Singh and Jeet Pal. The respondents dispute the validity of the sale deed executed by their mother Smt. Kokila Devi, wife of the late Puttu, dated 08.07.1988. They say that they have inherited the property upon the death of their mother, and after her, their father, the late Puttu as well as the share of the late Smt. Phula, through their father. It must be remarked here that according to the respondents' case, originally urged before the Magistrate, the property in dispute has an area of 16 decimals, inherited from Smt. Phula. But once the petitioners came up with the case that they had purchased the property in dispute through sale deeds dated 05.10.1987 and 08.07.1987 from Tehsildar, son of Sultan and Smt. Kokila Devi, wife of the late Puttu respectively, the respondents have assailed the petitioners' rights, on the basis of those two sale deeds, including that executed by their mother. It must also be remarked that Khasra No. 359 appears to have many co-sharers, amongst whom, Smt. Kokila, widow of the late Puttu, Tehsildar, son of Sultan and Smt. Phula, widow of the late Lalta Singh were all recorded with varying shares. It is, therefore, difficult to say with much precision here whether the property in dispute is exclusively that which lay in Smt. Phula's share or includes the share of Smt. Kokila, claimed to be purchased by the petitioners through a registered sale deed. All these issues are properly the subject matter of two suits pending between the petitioners on the one hand and the respondents on the other, before the Civil Court.
13. It figures on record that O.S. No. 614 of 2016 has been filed by the petitioners against respondents in the court of the learned Civil Judge (Junior Division), Farrukhabad, claiming a permanent injunction, seeking to restrain the respondents (the defendants to that suit) from interfering in the petitioners' peaceful possession over the property in dispute and from demolishing a wall shown by letters "Ba, Sa". The respondents, on the other hand, disowning the sale deed executed by their mother in favour of the petitioners relating to the property in dispute, have instituted O.S. No. 19 of 2017 before the learned Civil Judge (Junior Divsion), City - Farrukhabad, seeking a decree for the cancellation of the registered sale deed dated 27.07.1988. Thus, the dispute between the parties about the title of and possession to the property in dispute is engaging the attention of the civil court, in two suits that are virtually cross suits.
14. It is submitted by Mr. Mukesh Kumar, learned counsel for the petitioners, that the impugned orders passed by the courts below are manifestly illegal, inasmuch as the Magistrate has no jurisdiction to grant an order of injunction of the kind that he has made. It is only the civil court that could have passed that order. The learned Magistrate has exceeded his jurisdiction and passed an ultra vires order. It is urged by him that those proceedings are motivated by an ex-Village Pradhan, who had unsuccessfully got proceedings initiated under Section 133 of the Code, relating to the land in dispute that he claimed to be a public way. Those proceedings did not yield any relief in favour of the proxies acting for the ex-village Pradhan, who had moved the Magistrate under Section 133 of the Code. He urges that it is the respondents now who are doing a second inning at the behest of the ex-village Pradhan, Natthu Singh, to deprive the petitioners of the property in dispute. He emphasizes that all this ought to be decided in a duly constituted suit by a Judge determining the action, and not by abuse of the process of criminal law. An Executive Magistrate, who is not a Judge, cannot decide the question of title or possession or title and possession. He submits that the issues involved, if at all these are ought to be determined in the pending suits between parties, and not in a surreptitious manner by the Magistrate, seized of proceedings under Section 145 of the Code. The orders passed by the Magistrate are beyond the scope of his jurisdiction.
15. Mr. Aniruddh Kumar, learned counsel for the respondents, on the other hand, submits that the impugned orders do not call for interference. He submits that the respondents are women and are facing unlawful deprivation of their property at the hands of the petitioners, who were threatening to forcibly dispossess them. He submits that in the suit filed by the petitioners, no temporary injunction has been granted as yet, though the temporary injunction application is still pending. On being confronted with the issue about the Magistrate venturing into forbidden territory, deciding questions relating to title and possession of parties, learned counsel for respondents submits that justice has to be administered promptly in such matters and the tardy process of the civil court defeats justice. He submits that the courts below, particularly the revisional court, has found the respondents to be the recorded owners in possession of the property in dispute, in whose favour mutation has been granted upon the decease of the last recorded bhumidhar, Smt. Phula, the respondents' predecessor-in-title. It is urged that title and possession, being found by the two courts below in favour of the respondents, the Magistrate has rightly injuncted the petitioner from interfering with the respondents' possession and also directed their eviction, in case they have taken possession.
16. This Court has given a thoughtful consideration to the rival contentions and perused the record. In order to determine the parameters of the Magistrate's jurisdiction, it would be profitable to refer to the provisions of Section 145 of the Code, which are extracted below :
145. Procedure where dispute concerning land or water is likely to cause breach of peace.
(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section, the expression" land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute, (4) The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub- section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1).
(5) Nothing in this section' shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final.
(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub- section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub- section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b) The order made under this sub- section shall be served and published in the manner laid down in sub- section (3).
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of. such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale- proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.
17. It is of seminal importance to notice that the Magistrate's jurisdiction, from the bare and clear words of the Statute is about preventing a breach of peace arising from a dispute relating to possession of an immovable property. The jurisdiction is one that relates to preservation of breach of peace, and not an adjudication about possession of parties, much less their title. In fact, the provisions of Section 145 of the Code finds place in Chapter X of the Code, which relates to maintenance of a public order and tranquility. It is only to prevent breach of peace that the Magistrate has been summarily entrusted with jurisdiction to determine as to which party was in possession of the property that is cause of the apprehended breach of peace on the date that he makes the preliminary order under Section 145 of the Code. The scope about the inquiry as to which party was in actual possession of the property in dispute, has been expanded in temporal terms to a period of time two months next before the date of the Magistrate's preliminary order. It is also designed to take cognizance of any dispossession of a party made after the Magistrate passes the preliminary order under Section 145 (1). Thus, the scope of the Magistrate's jurisdiction is to determine which party was in actual possession of the property in dispute on the date that he makes the preliminary order, and also to determine if any party has been dispossessed two months anterior in point of time to the date when preliminary order is made. He can also take into account dispossession of a party at any time after he makes a preliminary order. In the eventuality where the Magistrate finds a party to be in actual possession of the property in dispute on the date of the preliminary order, he may declare such party to be entitled to possession thereof, until a court of civil jurisdiction or other court of competent jurisdiction orders that party to be evicted. In a case where the Magistrate so declares a party to be entitled to possession, until evicted in due course of law, he may forbid all disturbance of such possession until a court of competent jurisdiction orders otherwise. The Magistrate, therefore, can grant an injunction within these limited parameters and not otherwise. In a case covered by the provisions of sub-Section (4) to Section 145 of the Code, where the Magistrate finds that a party was in possession two months anterior to the date that he passed the preliminary order, or has been dispossessed after he made the preliminary order, he may order restoration of that party to possession found by him to be forcibly and wrongfully deprived during the specific period of time. There are other orders that could be made dependent on the contingencies that the Magistrate may encounter while deciding the question of possession on the date of preliminary order, but those are not relevant for the purpose of the present controversy.
18. It would, thus, appear that the sine qua non of the Magistrate's jurisdiction under Section 145 is an apprehended breach of peace relating to a dispute concerning an immovable property. The purpose of the jurisdiction is to preserve peace. The decision about possession that the Magistrate is to enjoined to take is for the purpose of preservation of peace; the Magistrate's decision about possession is only incidental to the purpose of maintaining peace. It is no jurisdiction to decide anything about the party's possession, much less title. It is also to be remarked that in the process of maintaining peace, whatever the Magistrate decides about actual possession of a party to a dispute relating to immovable property has nothing to do with the propriety of possession. It is just designed to find out who was in settled possession, the sudden unsettlement whereof led to an apprehended breach of peace.
19. This being the scope of the Magistrate's jurisdiction, the invocation of power under Section 145 by a Magistrate, is frowned upon pending proceedings relating to possession or title of the said property before a civil court or any other court of competent jurisdiction, say, a revenue court or other special tribunal, that has seison of the dispute at given point of time when an apprehension about breach of peace arises. In this connection, reference may be made to the decisions in Indira & Others v. Dr. Vasantha & Others2, Yaqub Ali v. State of Rajasthan & Others3 and Chatraram & Others v. State of Rajasthan & Others4. Ideally, in that situation, the court concerned ought to be approached with an application for appropriate interim orders. Once orders are passed by a court of competent jurisdiction about possession or in any manner, making a temporary arrangement, the Magistrate ought not interfere in the matter. There could, however, be situations where there are no interim orders, and a serious threat to peace arises. In those cases, the Magistrate may act, but very carefully, and only when he finds that the court of competent jurisdiction is reluctant to pass orders, and the apprehension about breach of peace continues. It must also be noted that the Magistrate's jurisdiction to make an order under Section 145 of any kind, must involve a continuing breach of peace. If at any time before it passes an order relating to possession for one or the other party, the apprehension of breach of peace disappears, he must lay his hands off. He must not feel tempted to adjudicate because he has issued a preliminary order and the parties have put in their written statements and led evidence. This is the clear purport of sub-Section (5) of Section 145 of the Code.
20. Here, what this Court finds is that the contents of the application on which the proceedings have commenced, do not, at all, speak of any apprehension of breach of peace. All that is said there is that the respondents fear that they might be dispossessed by the petitioners. A reading of the application, which, in this case, is made to the Magistrate under Section 145 of the Code, clearly does not show that a dispute likely to cause breach of peace, relating to an immovable property, is in the offing. The Magistrate forwarded the application for an inquiry by the police. In taking that course of action, the Magistrate was absolutely right. The police submitted a report in the matter, which also shows that the respondents apprehend that they might be forcibly dispossessed by the petitioners from the land in dispute. The police report is absolutely silent about any apprehension as to breach of peace arising from the dispute existing between parties claimed vis-à-vis the land in dispute. The application by the respondents and the police report together were the information on which the Magistrate passed the preliminary order under Section 145(1) of the Code. It is this material on which he assumed jurisdiction to commence proceedings.
21. This Court must remark that in the absence of anything either in the respondent's application indicating an apprehension about breach of peace arising from a dispute relating to an immovable property or in the police report submitted on that application, there was no warrant at all for the Magistrate to have assumed jurisdiction under Section 145 of the Code and pass a preliminary order under sub-Section (1) of Section 145 of the Code. The subsequent orders, which are all ancillary to the assumption of the jurisdiction in sub-Section (1) of Section 145, would fall once it is apparent that the Magistrate had no jurisdiction in the matter, in the first instance. The Magistrate perhaps, realizing his folly, has attempted to create jurisdictional facts while passing the order dated 11.11.2016 under Section 146 (1) of the Code, attaching the property in dispute and appointing a supurdgar. He says in that order that during a routine inspection of the area, he did a spot inspection and found that there was tension prevalent between the parties, relating to the land in dispute, which is likely to cause breach of peace. This mention in the record of proceedings on 11.11.2016 while passing an order under Section 146 (1) of the Code and much after preliminary order under Section 145(1) dated 27.07.2016 was passed, makes it apparent that it is an attempt by the Magistrate to create jurisdiction, post initiation of proceedings. Even if it be assumed that the Magistrate, on a spot inspection, did find something for the first time that an apprehension of breach of peace existed, it was then that he could have initiated fresh proceedings under Section 145(1), treating it as a piece of information. But on 27.07.2016, when the preliminary order giving rise to these proceedings was passed, there was absolutely nothing in the information before the Magistrate about any apprehension of breach of peace. Also, the Magistrate's remarks introducing a case of apprehension of breach of peace midway does not really disclose that there was any such apprehension. The order shows it to be more of a ipse dixit of the Officer, who seems to be keen on validating the proceedings before him, that he realized were initiated without jurisdiction.
22. It must be remarked here that for an Executive Magistrate to be perplexed with the subtleties of law, is a understandable predicament. The Executive Magistrate's are lay officers and proceedings of this complexity may go awry before them. It is for this reason that they are subjected to superintendence of the learned Sessions Judge in revisions and also of this Court, even though their determinations are otherwise and not subject to an appeal. But the learned Additional Sessions Judge, who heard the revision from the Magistrate's order, did not deliver the Magistrate's folly with the refinements of his forensic ability. He went into the merits of the matter about possession and title of parties, as it were an appeal from a temporary injunction matter in a civil cause. He has recorded the following decisive findings :
muds firk th Jh iqRrw yky dk LoxZokl gks tkus ds dkj.k [kljk ua0 359 esa 16 fM0 tehu buds uke [krkSuh esa ntZ gS o budk dCtk gS ysfdu fuxjkuhdrkZx.k t;ohj flag] #Lre flag] cnu flag thriky iq=x.k izse flag o efgiky flag] vt; flag iq=x.k lkSnku flag fuoklh vHk;iqj Fkkuk eksgEenkckn mDr tehu ij tcjnLrh dCtk djuk pkgrs gS rFkk foi{[email protected] dks Mjk /kedkrs gSaA ftlls vkosfndkvks dks Hk; gS fd ;g yksx mDr tehu ij dHkh dCtk djus dh fQjkd esa gS ;g dj ldrs gSA vk[;k e; uD'kk utjh ds vk/kkj ij /kkjk 145 na0 iz0 la0 ds vUrxZr dk;Zokgh fd, tkus gsrq miyC/k djk;h x;h gSA mDr vk[;k ds lkFk layXu uD'kk utjh ds voyksdu ls izdV gksrk gS fd dk0 la0&7@2 ds ifj'khyu ls izdV gksrk gS fd [kljk la0 359 jdck 0-16 fM0 vkjkth [kMUtk jkLrk ds if'pe [kkyh txg ds #i esa n'kkZ;k x;k gS mlds mijkUr edku efgiky flag o #Lre flag cus n'kkZ, x, gSA mDr vkjkth ds lEcU/k esa voj U;k;ky; dh i=koyh ij [krkSuh dk0 la0 5 miyC/k gS ftlesa fojklru foi{kh la0 1 o 2 dk uke ,0 lh0 vks0 pdcUnh ds vkns'kkuqlkj e`rdk eq0 Qqyk ds LFkku ij ntZ gqvk gSA bl izdkj foi{kh la0 1 o 2 fcjklru fookfnr lEifRr dh ekfyd o dkfct gSA blds foijhr i=koyh ij fuxjkuhdrkZx.k dh vksj ls vius LokfeRo ds lEcU/k esa dksbZ izys[k izLrqr ugh fd;k x;k gSA blds vykok fuxjkuh i=koyh esa vk[;k rglhynkj dh Nk;k izfr nkf[ky gS tks i=koyh ij dk0 la0 18 ch@10 gSA ftlds ifj'khyu ls izdV gksrk gS fd iqfyl }kjk rS;kj fd, x, uD'kk utjh mijksDr dh iqf"V rglhynkj ds uD'ks ls gksrh gSA mDr lEifRr ij l{ke izkf/kdkjh ,0 lh0 vks0 pdcUnh ds vkns'kkuqlkj foi{kh la0 1 o 2 dk uke crkSj okfjl ntZ gqvk gS ftlds foijhr i=koyh ij fuxjkuhdrkZx.k dh vksj ls dksbZ lk{; ugh gSA blfy, fo}ku voj U;k;ky; }kjk ikfjr iz'uxr vkns'k esa dksbZ fof/kd vFkok RkF;kRed =qfV ugh ikbZ tkrh gSA
23. In recording all these findings, the learned Judge also glossed over the fact that the information before the Magistrate, on the basis of which he passed the preliminary order, only spoke about a threat to the respondents' possession from the petitioners. There was no material about an apprehension of breach of peace. There was, thus, no jurisdiction at all to initiate these proceedings where the impugned orders have been passed. In this connection, the decision of the Supreme Court in Ashok Kumar v. State of Uttarakhand & Others5 succinctly lays down law thus :
7. We may notice, in the instant case, the application was preferred by the respondent under Section 145 CrPC and on that application, a report was called for and the Sub-Inspector of Police submitted his report before the SDM on 1-10-2009. It is stated in the enquiry report that the Sub-Inspector of the village went to Subhashgarh and noticed that even though the landed property stood in the name of Mona Sharma yet it was found that Ashok Kumar, the appellant herein was in possession of the land in question in Khasra No. 181. The relevant portion of the report reads as follows:
"It is the submission of applicant Mona Sharma that both Ashok Kumar and Narendra Kumar have taken possession over her land and both have stated that they have purchased land from Bal Krishan, husband of Mona Sharma whereas, this land comes in the category of 10(ka), which cannot be sold/purchased.... In the land there is situated under constructed house of Ashok Kumar in present time and eucalyptus and mango trees of Narendra Kumar s/o Jairam r/o Subhashgarh are standing."
24. The Magistrate's finding, on which he has passed the impugned orders, apart from being without jurisdiction, is cryptic. It reads thus and no more :
esjs }kjk i=koyh ij miyC/k iqfyl vk[;k ,oa vfHkys[kh; lk{;ksa dk Hkyh Hkkafr ifj'khyu fd;k x;kA iqfyl vk[;k esa mijksDr fookfnr tehu ij vkosfndkvksa dk dCtk crk;k x;k gSA /kkjk 145 n0 iz0 l0 esa LokfeRo@dCtk gksuk vko';d gSA foi{khx.kksa }kjk ,slk dksbZ Bksl lk{; izLrqr ugh fd;k gS] ftlls oknhx.kks dk dCtk fl) u gks ldsA mijksDr foospukuqlkj eSa bl fu"d"kZ ij igqaprk gwa fd bl U;k;ky; }kjk fnukad 27-07-2016 dks /kkjk 145¼1½ n0 iz0 la0 ds vUrxZr i{kdkjksa ds fo#) tkjh fd;s x;s vkns'k dh iqf"V fd;k tkuk U;k;ksfpr izrhr gksrk gSA
25. A reading of the aforesaid finding shows that there is not a word said about apprehension of breach of peace, which may invest the Magistrate with jurisdiction. Also, the Sessions Judge has not recorded any finding specifically as to which party was in possession on the date of the preliminary order or within two months ante-dating that order, or if the respondents were dispossessed after the Magistrate made the preliminary inquiry. In the absence of specific findings on these matters, he could not have passed the order impugned, which has been affirmed in manifest error by the learned Additional Sessions Judge.
26. In the result, this petition succeeds and is allowed. The impugned order dated 13.01.2017 passed by the Sub-Divisional Magistrate, Sadar, District - Farrukhabad in Case No. 30 of 2016, under Section 145 of the Code, and the order dated 24.05.2018 passed by learned Additional Sessions Judge, Court No. 4/Special Judge (E.C. Act), Farrukhabad, in Criminal Revision No. 168 of 2017 are hereby quashed. The parties are free to suit their rights on merits in the pending civil suits. Since possession was taken from the petitioners under an order of attachment by the Magistrate in these proceedings, the same shall be forthwith caused to be restored by the Sub-Divisional Magistrate, Farrukhabad to the petitioners, if not already restored, in compliance with the interim order earlier made in this case.
27. Nothing said here would affect the determination of the parties' rights at the trial of the two suits pending between them or any suit that may be instituted about the adjudication of their rights relating to the property in dispute.
28. Let this order be communicated to the Sub-Divisional Magistrate, Farrukhabad for strict compliance and to the learned Sessions Judge, Farrukhabad for record, by the Joint Registrar (Compliance).
Order Date :- 9.12.2020 I. Batabyal / B.K.M.