85 Case :- MATTERS UNDER ARTICLE 227 No. - 10611 & Ors. v. Rambabu) and also prays to direct & Ors.

It is submitted that in this case the petitioner was in possession of the property in dispute which was owned by his brother Promod Kumar who executed a gift deed in favour of the petitioner that was the reason he came in possession on the land in dispute. Further submitted that opposite party nos.3 to 5 namely Rambabu, Vedprakash and Anil are real brothers of the petitioner and they also claimed their share in property and wanted to dispossess the petitioner from the share of Pramod Kumar in the land where the petitioner had sown the plants of chilly. It is further submitted that an application u/s 145 Cr.P.C. was filed by the opposite party nos.3 to 5 before the S.D.M. on which the S.D.M. called for report from the concerned police station and lekhpal. The lekhpal reported about the possession of this petitioner and the fact that opposite party nos.2 to 3 were trying to dispossess the petitioner and claiming their share in the undivided property between the brothers including the petitioner. Further submitted that the Officer In-charge of police station reported the matter to the learned S.D.M. that there was dispute between both the parties relating to the possession of the property in question that was the reason notice u/s 145(1) Cr.P.C. was issued to the petitioner. In the meantime, the reports dated 22.02.2020 and 30.06.2020 were submitted by Officer In- charge Police Station Chandpur that there is dispute relating to the possession between the parties in relation to which there are strained relations between them. The opposite parties who were in possession of the land earlier sown the plants of chilly which were uprooted by the first party. Again the petitioner sown the plants of chilly which created serious and sensitive situation. On the basis of this report the learned S.D.M. passed the order in question dated 14.07.2020 u/s 146(1) Cr.P.C. while attaching the property and directing the S.H.O/Officer In-charge of concerned police station to take crop in his possession and after making its auction, to produce the account of total income in the court. Being aggrieved with this order a revision was filed before the court of session which was decided by the court while rejecting the revision vide order dated 10.06.2022 holding that the order was interlocutory, therefore, revision was not maintainable against it. It is also submitted that the order passed by learned S.D.M. and learned revisional court cannot be said to be lawful and in conformity with the law as laid down u/s 146(1) Cr.P.C. because learned S.D.M. had adopted wrong procedure in making attachment of the property in question, therefore, requested to quash the orders passed by S.D.M. as well as learned revisional court. Learned A.G.A. opposed the prayer as aforesaid and urged that in this case there is dispute relating to the possession of property between the petitioner and opposite party nos.3 to 5 who are real brothers of the petitioner. The proceedings u/s 145 Cr.P.C. were also taken recourse of by the learned Magistrate, in the meantime dispute arose between the parties regarding the possession of the property in dispute and in the report submitted by lekhpal and police there was dispute relating to plantation of chilly regarding which proceedings u/s 107/16 Cr.P.C. were also taken recourse of even though there was emergent situation to pass the order as aforesaid for preventing the parties from dispute. It is also urged that petitioner has an option to file objection regarding possession before the learned Magistrate in the proceedings u/s 145 Cr.P.C. and the same shall be decided by the learned court concerned finally. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and from perusal of orders passed by learned S.D.M. as well as learned revisional court, it appears that Gata No.20 area 2.2830 hectare was owned by the petitioner and his brothers out of which the share of Pramod Kumar was gifted to the petitioner on which other brothers were also started seeking their share though the property was not divided between the parties. The petitioner had sown the plants of chilly in the share of Pramod Kumar which was given to him through gift deed, in relation thereto the dispute arose between the parties regarding which proceedings u/s 107/16 Cr.P.C. were also taken recourse of by the police and an application u/s 145 Cr.P.C. was moved by the opposite parties before the learned S.D.M. During pendency of proceedings u/s 145 Cr.P.C. a report was submitted by the police about immediate breach of peace between the parties regarding possession of the property where plants of chilly were planted by the petitioner and uprooted by the opposite parties. Keeping in view, all these facts learned S.D.M. passed the order in question u/s 146(1) Cr.P.C. directing the Officer In-charge of police station concerned to attach the property and produce the account of income before the court after getting the crop auctioned. In such a situation, it appears that the learned Magistrate after passing order u/s 145(1) Cr.P.C. in case of emergency, may pass such order for attachment which can be withdrawn by the learned Magistrate himself at the time when he feels satisfied that there is no likelihood of breach of peace with regard to the subject of dispute. Since, the order was passed by the learned Magistrate on 14.07.2020 when there was crop of chilly on the land in dispute and now two years have elapsed, so the petitioner may approach to the court of learned S.D.M. to file his submissions which will be taken into consideration by it and he will decide as to whether there remains any likelihood of breach of peace with regard to subject of dispute or not. At this stage, it cannot be said that there is no possibility of breach of peace and situation warrants withdrawal of attachment but it can only be done by the concerned Magistrate. Therefore, there is no ground to grant any indulgence in favour of the petitioner but this petition being devoid of merit is liable to dismissed. Accordingly, the present petition is disposed of finally with direction to the petitioner to approach the court concerned with his submissions which will be decided by it, in accordance with law. Order Date :- 14.12.2022 Ashok Gupta GUPTA Reason: Location: High Court of Judicature at Allahabad