Parvej Akhtar v. Usman and others), under Section
Case Details
Neutral Citation No. - 2024:AHC:189572 Court No. - 86 Case :- CRIMINAL REVISION No. - 3549 of 2024 Revisionist :- Usman And 5 Others Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- Juned Alam Counsel for Opposite Party :- G.A.,Mohd. Shoeb Khan Hon'ble Ram Manohar Narayan Mishra,J. 1. Heard learned counsel for the revisionists, learned AGA for the State-respondents and perused the material placed on record. 2. Instant criminal revision has been preferred against the impugned order dated 1.7.2024, passed by Sub Divisional Magistrate, Tamkuhiraj, District Kushi Nagar, passed in Case No.3357 of 2018, under Section 145 Cr.P.C., (Computerized Case No.T20190544303357) (Parvej Akhtar vs. Usman and others), under Section 145 Cr.P.C., Police Station Pataherawa, District Kushi Nagar, whereby application/report submitted by SHO concerned following judgement of this Court in Criminal Revision No.754 of 2023 read with order dated 14.3.2024 passed by learned SDM was allowed. 3. At the outset, learned counsel for the opposite party No.4 raised a preliminary objection that the impugned order has been passed by learned SDM in favour of the opposite party No.4 pursuant to judgement of this Court decided on 28.2.2024 in Criminal Revision No.754 of 2023 (Usman and 5 others vs. State of UP and 2 others), whereby the impugned order 11.1.2023, passed by Sub Divisional Magistrate, Tamkuhiraj, District Kushi Nagar in Case No.3357 of 2018, under Section 145 Cr.P.C., Police Station Pataherawa, District Kushi Nagar has been quashed on the ground that same was in excess of jurisdiction. Thereafter, learned Sub Divisional Magistrate vide order dated 14.3.2024 recalled order dated 11.1.2023 passed under Section 146 Cr.P.C. and closed proceedings under Section 145 Cr.P.C. in compliance of said order of this Court and directed restoration of possession to concerned party from Receiver. On the basis of order dated 14.3.2024 passed by SDM, a report was submitted by SHO concerned on 18.4.2024 regarding delivery of possession. He further submitted that this Hon'ble Court also observed that since proceeding under Section 145 Cr.P.C. are pending in the Court of SDM, Tamkuhiraj are also not maintainable, they are also quashed. He next submitted that the effect of order of this Hon'ble Court is that the property be restored to the person from whom it was entrusted to custodian and the S.O. concerned had submitted a report before SDM on 18.4.2024 where he has sought specific directions as to whom the property in dispute will be handed over after judgement of this Hon'ble Court dated 28.2.2024. Learned SDM passed impugned order on report of SHO to the effect that "SHO, पटहहेरवव, पपूवर महे थवनव ्ቚभवररी ककी आख्यव और आप दवरव उ्ሹ कव उलहेख करनहे तथव परवहेज कहे नवम खततौनरी मम दजर हहोनहे कहे ्ቅम मम ्ቚथम प्ቌ परवहेज कहो हस्तगत करम ." Thus, the impugned order is purely an interlocutory order and the revision is not maintainable against it. He lastly submitted that after the
Legal Reasoning
judgement of this Court in Criminal Revision No.754 of 2023, no further proceeding under 145 Cr.P.C. is called for and it was incumbent on learned SDM to only decide the person from whom the possession was taken and entrusted to custodian. Therefore, the revision is not maintainable as such. 4. Per contra, learned counsel for the revisionists submitted that the revision is very much maintainable and preliminary objection raised by learned counsel for the opposite party No.4 gathers no mass. He also submitted that there are a number of applications of daughter of revisionist to the effect that she had sown a crop of wheat on said plot and other side is trying to forcefully harvest the crop sown by her without any authority. Both the parties are claiming their own share on disputed plot. The revisionist is claiming his title over the disputed plot on the basis of Hibanama from original owner whereas the respondent No.4 is claiming his title on the basis of registered sale deed. However, the law is very settled that the question of title is not to be decided in proceedings under Section 145 Cr.P.C. and the order is passed on the basis of possession of documents of supurdaginama prepared by the custodian on directions of Executive Magistrate, wherein signature of Usman only finds place and there is no signature of Parvej on that paper. A temporary injunction order was also passed by civil court on 16.9.2012 on application of the revisionists, which also fortifies the claim of the revisionists of their possession over disputed property. The report of SHO concerned pursuant to order dated 14.3.2024 passed by SDM is entirely incorrect. 5. Learned counsel for the revisionists placed reliance on provisions of Section 145(4) Cr.P.C., which is reproduced as under:- "Section 145 (4) Cr.P.C.- The Magistrate shall then, without reference of 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 this order under sub-section (1)." 6. Per contra, learned counsel for the opposite party No.4 further submitted that the non appearance of signature of opposite party No.4 on document of supurdaginama does not make any difference because it is well established on the basis of on material record that possession was taken from Parvej by the receiver and at the time of execution of document of supurdaginama by custodian, Parvej was out of station and that is why, his signature could not be obtained thereon. 7. From perusal of record, it appears that the dispute between the revisionists and respondent No.2 is with regard to Plot No.465, area 0.579 hectare, situated at Mauja Banbeera, Police Station Pataherwa, District Kushinagar. The revisionists claim their title over land in dispute on the basis of oral gift (Hiba) made by Mohd. Suleman, the original owner twice; firstly of 3 kattha land many decades ago and thereafter of remaining area in the year 1994, when he left for United States, in favour of the revisionist No.3. The respondent No.2 Parvej Akhtar claims the ownership on the strength of a registered sale deed executed by said Mohd. Suleman on 26.4.2012 in his favour and his name has also been mutated on the basis of said sale deed. The revisionists have stated that Mohd. Suleman is real uncle of revisionist No.3. The revisionist No.3 had filed a civil suit in the Court of Civil Judge (Junior Division), Kasiya, District Kushinagar, which is registered as Suit No.1117 of 2012, Nazma Khatoon vs. Parvej Akhtar and another for injunction and cancellation of sale deed executed by Suleman in favour of Parvej Akhtar, who are impleaded as defendant Nos.2 and 1 in the civil suit, respectively and a temporary injunction was granted i said civil suit vide order dated 16.9.2012 by Civil Court wherein parties are directed to maintain status quo of the land in suit and they are restrained to transfer the same to any other person. However, the civil court has observed that there is only dispute of area 0.165 hectare in plot No.465 between the parties which will be stated as disputed land. Defendant No.2 Mohd. Suleman shifted to United States in the year 1994. Both the parties have claimed prima facie their right and title, over the disputed land. Although, plaintiffs' prima facie case is not proved yet during pendency of suit it appears justifiable that the status quo of the land during pendency of suit be maintained to avoid change in nature of subject matter and multiplicity of suits, so that the property in suit remains preserved and the interest of real owner may be protected till adjudication of the case because if status quo of the land in suit is changed then the interest in the suit of real owner, whose interest in the suit has to be adjudicated, would be jeopardized. An order of status quo of land in suit will remain preserved and who ever will be found its real owner would be provided the property in suit after adjudication of ownership. 8. The defendant Parvej Akhtar filed a Misc. Civil Appeal No.74 of 2013, (Parvej Akhtar vs. Nazma Khatoon and others) before the court of District Judge, under Order 43 CPC but same was dismissed on the ground that both the parties have endorsed on order-sheet that they would maintain status quo of the parties and will not change its character. The appellate court observed that in view of the written undertaking of the parties, the misc. civil appeal has become now infructuous and accordingly, it is dismissed and impugned order dated 16.8.2013 is affirmed. 9. Thus, on perusal of the order of civil court, it is crystal clear that neither the ownership nor the possession of any party over property in suit has been adjudicated so far as and temporary injunction was granted only with a view to preserve status quo of the property in suit. 10. There are contradictory reports on the record with regard to the possession of the parties in disputed land. It appears that they are litigating in respect of land in suit since year 2012 and both of them claimed their respective right, title, interest and possession over disputed land. The Sub Divisional Magistrate vide order dated 11.1.2023 issued a direction that proceeding under Section 146(2) Cr.P.C. be initiated in respect of land in dispute in Case No.3357 of 2018, under Section 145 Cr.P.C. However, said order was set aside by this Court in Criminal Revision NO.754 of 2023 as well as proceeding under Section 145 Cr.P.C. in Case No.3357 of 2018 pending before Sub Divisional Magistrate were also quashed in its entirety vide order dated 28.2.2024. It is noticeable that in compliance of the order dated 11.1.2023 passed by Sub Divisional Magistrate, the land in dispute was given by Revenue and Police Officials in the custody of Receiver Sri Ratnesh Singh, son of Akhilesh Singh, resident of Kasba Fazalnagar, District Kushinagar on 5.2.2023 as the plot no.465, area 0.579 hectare which was seized and attached according to the boundary marks. 11. As this Court set aside the order dated 11.1.2023 in Criminal Revision No.754 of 2023, vide order dated 28.2.2024, the Sub Divisional Magistrate directed the SHO concerned vide order dated 14.3.2024 to take back the property from the possession of Receiver and to hand over the same to the property from whose possession it was attached and entrusted to receiver as a follow up action carried out in compliance of order dated 28.2.2024 passed by this Court. 12. The S.H.O. concerned filed a report on 18.4.2024 before the Sub Divisional Magistrate, in which he stated that the name of Parvej Akhtar is entered as a tenure holder in respect of land in dispute in Khatauni on the basis of sale deed. As Usman and others, the co-sharers of Mohd. Suleman were unnecessarily interfering in possession of the purchaser Parvej Akhtar, a report for initiating proceeding under Section 145 Cr.P.C. was filed by the then SHO on 8.4.2019 with prayer to attach the subject matter in dispute due to dispute between the parties in respect thereof. In pursuance of order dated 11.1.2023, passed in said attachment proceeding, the property was entrusted to Receiver Ratnesh Singh, however, as proceeding under Section 145 Cr.P.C. are quashed by the Hon'ble High Court, the property is to be restored to the person concerned from whom it was taken and entrusted to the receiver. He sought a direction from SDM that out of two claimants, the purchaser Parvej Akhtar or opposite party Usman, whom the possession of the property is to be handed over. 13. Learned SDM has passed an order on said report wherein he has directed SHO concerned that in view of the report of SHO concerned and the name of Parvej Akhtar being entered in khatauni, the possession be handed over to Parvej. 14. In supurdaginama dated 5.2.2023, by which the land in dispute was entrusted by Revenue and Police Officials to the receiver finds signature of witnesses namely, Sub Inspector Subhash Chandra Srivastava and Lekhpal Vijay Dev Singh Patel as well as Ratnesh Singh, the receiver and Usman, the opposite party, who is revisionist No.1 before this Court. This supurdaginama (enstrustment deed) does not find signature of Parvej Akhtar. 15. In these facts and circumstances of the case and situation, without expressing any opinion about the merits of the claim of the parties litigating before this Court, I find it appropriate to set aside the impugned order dated 1.7.2024 passed by learned SDM as same is not based on any independent inquiry or recording of evidence regarding possession of the property and the order is
Decision
based on report of SHO concerned. The impugned order is bereft of application of judicial mind and it is not supported with relevant material on record. The impugned order dated 1.7.2024, passed by Sub Divisional Magistrate, Tamkuhiraj, District Kushi Nagar is set aside and he is directed to decide the limited question independently by recording evidence of the persons in whose presence the property was seized and entrusted to Receiver in compliance of order dated 11.1.2023 passed in Case No.3357 of 2018, under Section 145 Cr.P.C. including respondent No.2 Parvej Akhtar and any other person whose evidence found relevant and decide the question by a speaking order as to who is entitled of the possession of land in suit or in other words from whose possession the property was attached and entrusted in compliance of order dated 11.1.2023 on 5.2.2023. After passing of order, learned SDM will ensure handing over of the possession of the land in suit to the person entitled thereof on the basis of said decision till decision of competent court in regard to matter in controversy. 16. Accordingly, present criminal revision stands allowed, with above directions. Order Date :- 3.12.2024 Kamarjahan Digitally signed by :- KAMARJAHAN ANSARI High Court of Judicature at Allahabad