Rabiya and 2 others … v. State of U.P. and another

Judgment

1. Heard Shri Vineet Kumar Singh, learned counsel for the applicants and learned Additional Government Advocate for the State- opposite party No. 1 and perused the record.

2. The instant application under Section 528 BNSS has been filed by the applicants for quashing charge sheet dated 27.01.2024 as well as entire proceedings of Case No. 2693 of 2024 (State vs. Mahboob

and others) arising out of Case Crime No. 441 of 2023, under Sections 420, 467, 468, 471, 120-B IPC, Police Station Kotwali Orai, District Jalaun pending in the court of Chief Judicial Magistrate, Jalaun at Orai. Further prayer has been made that orders impugned dated

12.03.2024 and 05.08.2024 passed by Chief Judicial Magistrate, Jalaun at Orai in the aforesaid case be set aside.

3. By the first order dated 12.03.2024, the applicants were summoned to face trial in the aforesaid offences and by the second order dated 05.08.2024, charges have been framed against them. 2 NA528 No. 32582 of 2025

4. Learned counsel for the applicants submits that one Sheela Devi was Zamindar of a non-Z.A. land bearing Plot No. 577 and she executed a registered agreement for sale in favour of husband of applicant No. 1, i.e. Mohd. Hussain on 26.05.1993 and delivered possession of the property to him. Thereafter, Sheela Devi fraudulently sold the same property to opposite party No. 2 on

25.05.2010, but since the possession of the property remained with the husband of applicant No. 1, at no point of time the purchaser had come in possession.

5. Further submission is that based upon the sale deed dated

25.05.2010, opposite party No. 2 got his name mutated in the revenue records on 27.05.2022 and when applicant No. 1 came to know about the same, a restoration application was filed on 23.06.2022, which was allowed on 02.09.2024 and during the pendency of the restoration application, the first information report giving rise to the present case has been registered against all the applicants on 18.06.2023 alleging that a fraudulent sale deed dated 10.08.2022 has been executed by applicant No. 1 and to facilitate such transaction of sale, all the applicants had conspired amongst themselves. Learned counsel for the applicants further submits that a civil suit being O.S. No. 73 of 2021 has been filed by applicant No. 1 and one Abdul Salam claiming a decree for injunction, which is pending before the civil court and concealing the said fact, the first information report has been lodged.

6. It is further submitted that since entire amount in relation to the agreement for sale was paid by the husband of applicant No. 1 and actual and physical possession had been delivered by Sheela Devi to him more than 30 years ago in 1993, by virtue to Section 53-A of Transfer of Property Act, 1982, the informant claiming rights through vendor Sheela Devi would have no right to claim any relief against applicant No. 1 or her husband and, therefore, impugned criminal prosecution is an abuse of process of law. 3 NA528 No. 32582 of 2025

7. It is further contended that though opposite party No. 2 claims to have acquired title based upon the sale deed dated 25.05.2010, no effort has been made by him to claim possession over the land, which is still with applicant No. 1 being widow of Mohd. Hussain, who had also made a Hiba in her favour.

8. Per contra, learned A.G.A. submits that till today, neither the sale deed dated 25.05.2010 has been challenged nor has the same been annulled by any court of law and once there is no declaration of ownership rights in favour of husband of applicant No. 1, execution of sale deed dated 10.08.2022 by applicant No. 1 as widow of Mohd. Hussain, is a fraudulent act. It is further contended that though applicant No. 1 was contesting mutation proceedings and the civil suit was also filed by her, at no point of time, any challenge to the sale deed dated 25.05.2010 was laid before any court, except seeking mutation based upon alleged possession over the property.

9. Having heard learned counsel for the parties, the Court notices certain facts of this matter.

10. Admittedly, Sheela Devi was owner/Zamindar of the land in dispute. A bare perusal of agreement for sale dated 26.05.1993 would reveal that it was executed by her in favour of four persons, namely, Luvkush Singh, Mohd. Hussain (husband of applicant No.1), Ashok Kumar Dwivedi and Surendra Bahadur Singh in lieu of sale consideration of Rs.80,000/- (rupees eighty thousand), out of which a sum of Rs. 50,000/- (rupees fifty thousand) was paid by the proposed vendees to Sheela Devi and remaining sum of Rs. 30,000/- (rupees thirty thousand) was agreed to be paid at the time of execution of sale deed, about which, period of one year had been fixed. There is no dispute that neither the sale deed was executed in favour of husband of applicant No. 1 nor any suit for specific performance of agreement for sale was filed. However, learned counsel submits that since remaining amount of Rs. 30,000/- (rupees thirty thousand) was also 4 NA528 No. 32582 of 2025 received by Sheela Devi (vide Annexure-7 to the affidavit), which is a receipt and after payment of entire sale consideration, the husband of applicant No. 1 became owner of the property, though no sale deed was executed, but possession always remained with her husband, which is now with applicant No. 1.

11. Though, it is true that the name of opposite party No. 2 was mutated in the revenue records on 27.05.2022 and restoration application filed on 23.06.2022 was allowed on 02.09.2024 resulting into restoration of the proceedings, whereafter the same have again been dismissed for want of prosecution on 25.10.2024 (page 105 of the paper book), as of now, there is nothing on record to demonstrate that sale deed dated 25.05.2010 has been either challenged or declared as null and void. As far as title to the immovable property is concerned, the same is with opposite party No. 2, though actual and physical possession of the property may be with applicant No. 1 being widow of one of the four proposed vendees based upon the agreement for sale.

12. Mutation proceedings are decided based upon title and/or actual or physical possession over the property and name of the occupant may be entered into revenue records based upon the rights asserted before the mutation court, however, insofar as the title to the immovable property is concerned, Section 53-A of the Transfer of Property Act, reliance whereon was placed by the learned counsel for the applicants, is a provision where the proposed transferee in part performance of the contract, takes possession of the property or any part thereof and has done some act in furtherance of the same. The said provision does not contemplate actual sale of the immovable property, which takes place as per Section 54 of the Transfer of Property Act. Plea of part performance and doing some act in furtherance of the agreement may protect actual and physical possession of the proposed transferee even against a subsequent purchaser of the same property by virtue of any subsequent sale deed, 5 NA528 No. 32582 of 2025 but there is nothing on record to establish title in favour of Mohd. Hussain or applicant No. 1 being her widow.

13. In view of the above fact situation, the only document of title (though not on record), but admitted by the learned counsel for the applicants is the registered sale deed dated 25.05.2010, which is in favour of opposite party No. 2.

14. In the mutation proceedings as well as in the civil suit, applicant No. 1 has expressed herself to be owner of the property in dispute, but source of ownership has not been disclosed, except that Mohd. Hussain had executed an oral Hiba in favour of his wife, i.e. applicant No.1. Hiba can be executed by the owner of the property and not by a proposed owner. Therefore, since the applicant No.1 has persuaded this Court to recognize her alleged ownership rights based upon the agreement for sale vis-a-vis oral Hiba, the Court cannot ignore the said submissions and, therefore, records a finding that in absence of any document of ownership, title never vested in applicant No. 1, though her possession may remain protected, if established before a court of law.

15. In view thereof, if the true owner of the property, by virtue of sale deed dated 25.05.2010, feeling aggrieved of a subsequent sale made by applicant No. 1 on 10.08.2022 proceeded to lodge FIR on

18.06.2023, submission made by learned counsel for the applicants that action has been taken after 13 years from the date of execution of sale deed in 2010, has no force, inasmuch as, the FIR has been registered in view of subsequent sale deed dated 10.08.2022 whereby applicant No. 1 sold the property expressing herself to be owner. There was no occasion to lodge FIR based upon sale deed of 2010, which was in favour of opposite party No.2.

16. A true owner may have multiple grievances against infringement of his/her rights in an immovable property and civil action taken or not taken on that basis is one aspect of the matter, 6 NA528 No. 32582 of 2025 whereas fraudulent execution of instrument of transfer affecting the rights of the parties may fall within the parameters of Sections 467, 468, 471 IPC. Therefore, this Court does not find any flaw in lodging of the FIR and arguments advanced that dispute is of purely civil in nature stands discarded in the peculiar facts of the case. The Court notices that the court concerned has already framed charges by order impugned dated 05.08.2024.

17. It is also noticed that civil suit of 2021 is not against opposite party No. 2 but against third parties raising allegations that they are interfering in possession of plaintiffs of the said suit. Institution of that suit would not inter se settle the dispute in between the applicants and opposite party No. 2 and, therefore, is thoroughly irrelevant for the purposes of this case.

18. However, it is found that in the entire proceedings, prima facie there appears to be no role of applicant Nos. 2 and 3, except that allegation levelled against them is that they have colluded with applicant No. 1 and have formed a group of land mafias to grab the immovable properties by procuring fraudulent documents. In view thereof, while this Court, prima facie, does not find any material against applicant Nos. 2 and 3, who are neither parties to the agreement for sale nor the first sale deed nor the second sale deed and it does not appear to be justified that coercive measures are taken against them. However, insofar as applicant No. 1 is concerned, she being executant of the sale deed dated 10.08.2022 without having title in her, this Court is not inclined to grant any relief to her.

19. As far as applicant Nos. 2 and 3 are concerned, they are on bail and their personal appearance shall remain exempted during the course of trial. They shall appear before the court below through counsel and may take all measures as may be advised to them. 7 NA528 No. 32582 of 2025

20. With the aforesaid observations, the instant application on behalf of applicant No. 1 stands dismissed and on behalf of applicant Nos. 2 and 3, it stands disposed of. (Kshitij Shailendra, J.) September 8, 2025 Sazia