High Court · 2025

Applicant :- Meena Srivastava Opposite Party :- State of U.P. and Another Counsel for Applicant :- Neeja Srivastava,Sr. Advocate Counsel for Opposite Party :- G.A.,Shri Prakash Dwivedi,Vivek Mishra Hon'ble Saurabh Srivastava,J.

1. Heard Shri V.P. Srivastava, learned Senior Counsel assisted by Shri Manoj Kumar Srivastava and Shri Mangala Prasad Rai, learned Senior Counsel assisted by Shri Shri Prakash Dwivedi for opposite party no.2 and the learned AGA for the State.

2. The instant application has been preferred for challenging the proceedings of Case No. 36182 of 2024 (State vs. Meena Srivastava) under sections 419, 420, 467, 468, 471 of IPC and Section-3 of Prevention of Damages to Public Property Act registered as Case crime no.67 of 2014 wherein charge sheet has also been submitted after conducting detailed investigation by concerned Investigating Officer whereupon the cognizance of offence has been taken up by learned court of Additional Special Chief Judicial Magistrate, Varanasi on 9.5.2024 and the same is also put under challenge.

3. Learned Senior Counsel appearing on behalf of the applicant submitted that it is the applicant who is in legal possession having title over Plot no.179 measuring about 3600 sq. feet and the same has been transferred through registered sale deed in favour of one Mr. Narendra Rai on 16.3.2004, it is fairly submitted by learned Senior Counsel appearing on behalf of applicant that the sale deed executed by the applicant in respect of plot no.179 is for 3800 sq.feet whereas she had been the legal occupant having title in her favour only to the tune of 3600 sq.feet.

4. Learned Senior Counsel also submitted that the excess area mentioned in the registered sale deed executed by the applicant caused inconvenience to opposite party no.2 in shape of alleged right of way which was available to her but the same has been obstructed in pursuance to execution of 200 sq. feet excess land pertaining to plot no.179 which has been perhaps occupied by the purchaser i.e, one Narendra Rai.

5. Being aggrieved with the excess area which might be under the encroachment carried out by purchaser of plot no.179 which has been transferred by the applicant through registered sale deed, opposite party no.2 preferred civil suit no.1044 of 2011 before learned court of Civil Judge (Junior Division), Varanasi (Smt. Vibha Mishra and others vs. Anjani Srivastava and others) wherein applicant is also one of the defendant as defendant no.2 and the same is still pending to be adjudicated by learned Civil Judge (Junior Division), Varanasi and there is hardly any interim order passed in favour of opposite party no.2.

6. Lastly, learned Senior Counsel appearing on behalf of the applicant submitted that institution of Case Crime No.67 of 2014 against the applicant is nothing but dragging her into unwanted criminal litigation and by way of giving colour to a civil dispute which has already been preferred by way of filing original suit no.1044 of 2011. The sections which have been fastened against the applicant is also not tenable in the eye of law since specifically Section-3 of Damages to Public Property Act is no where related which is admitted to both the parties that the property which has been sold in excess of its area purely belongs to a private property and the adjoining boundaries of the same plot does not contain any public property.

7. Per contra, Shri Mangala Prasad Rai, learned Senior Counsel assisted by Shri Shriprakash Dwivedi submitted on behalf of opposite party no.2 that the fradulent sale deed executed by applicant excess to area of plot no. 179 is itself crystal clearly shows the criminal action carried out, which culminated into preferring First Information Report against her and the sections which have been attracted in pursuance to the illegal action carried out by applicant pertains to right to way available with the opposite party no.2 and the same has been obstructed by way of executing sale deed excess to the area which has been mentioned in pursuance to plot no.179 pertains to the applicant and as such institution of F.I.R which culminated into preferring chargesheet is well in consonance with the law and the matter has to be tried before learned court concerned and the same shall be adjudicated in strict proof of evidence and the statement recorded in shape of testimony of prosecution and defence witnesses.

8. Learned A.G.A, appearing on behalf of State also seconded the arguments raised by learned Senior Counsel appearing on behalf of opposite party no.2 but, at the same time raised a most important issue in respect of preferring original suit no.1044 of 2011 at the behest of opposite party no.2 and further submitted that the filing of proceeding with the civil matter has to be taken into consideration by this court while adjudicating the controversy raised at the behest of the applicant.

9. After hearing rival submissions extended by learned counsel for the parties although, entire facts alongwith law has been submitted by both the learned Senior Counsels appearing for the applicant and opposite party no.2 and the proper assistance has been rendered by the learned AGA at the behest of the State, unfortunately, one vital aspect in shape of mutation of the property is concerned, none of the learned counsels apprised the court regarding the same. The trite civil law specially in terms of possessory right over the property in question cannot be determined only at the behest of execution of sale deed but the same is strictly dependant upon the entries available in the revenue records/municipal corporation which conferred right of the person in pursuance to mode of transfer that might be in shape of sale deed, inheritence, Will or otherwise.

10. In the instant matter, the entire dispute has been raised only at the behest of execution of sale deed executed through registered sale deed by the applicant but at the same time after thorough scrutiny of the chargesheet alongwith documents appended to the rival submission does not disclose that whether the plot in question has ever been mutated or not?

11. In the absence of any mutation proceedings which is dependent upon demarcation of the boundaries as well as adjoining plot holders/stake holders and the same might be in shape of redressal of the grievances whatsoever pertains to opposite party no.2, in the instant matter, there is hardly any description raised by opposite party no.2 that the land which has been sold by applicant in favour of one Ajay Kumar Rai, has been duly mutated and thereafter her right to way has been obstructed, the grievance of the opposite party no.2 cannot be determined only on the basis of execution of sale deed executed by applicant which is espousing the cause of action for preferring FIR, even, when specific Original Suit No. 1044 has already been instituted at the behest of opposite party no.2 way back in the year 2011.

12. The precise argument raised by learned Additional Government Advocate at the behest of State in respect of preferring original suit no.1044 of 2011 at the behest of opposite party no.2, is the main question which has to be borne in mind while deciding the issue, which by-in-large in pursuance to application preferred under Section 482 Cr.P.C, wherein the entire proceedings of the Case Crime No.67 of 2014 has been put under challenge and the same has been decided in catena of judgment rendered by Hon'ble Apex Court:-

1. Rikhab Birani and another vs. State of Uttar Pradesh and another, 2025 SCC OnLine SC 823

2. Delhi Race Club (1940) Limited vs. State of Uttar Pradesh (2024) 10 SCC 690.

3. Thermax Limited vs. K.M. Johny (2011) 13 SCC 412

4. Sharif Ahmed vs. State of Uttar Pradesh 2024 SCC OnLine SC 726.

13. In the light of the above judgements and the proceedings initiated at the behest of opposite party no.2 at the initial stage in pursuance to preferring Original Suit No. 1044 of 2011 for claiming of right to way which has been obstructed in pursuance to the sale deed executed by applicant and again taking resort to the criminal proceeding is not sustainable in the eye of law and as such the proceedings which has been given criminal colour originally initiated as a civil dispute is liable to be set aside.

14. The arguments raised by learned counsel for the applicant seems to be justified in the light of the judgement Rikhab Birani and another vs. State of Uttar Pradesh and another (Supra) mentioned and in pursuance to the above discussions, entire proceedings of Case No. 36182 of 2024 (State vs. Meena Srivastava) arising out of Case Crime No.67 of 2014 are hereby set aside and the application stands allowed accordingly. Order Date :- 22.4.2025 Rakesh RAKESH SINGH High Court of Judicature at Allahabad

Applicant :- Meena Srivastava Opposite Party :- State of U.P. and Another Counsel for Applicant :- Neeja Srivastava,Sr. Advocate Counsel for Opposite Party :- G.A.,Shri Prakash Dwivedi,Vivek Mishra Hon'ble Saurabh Srivastava,J.

1. Heard Shri V.P. Srivastava, learned Senior Counsel assisted by Shri Manoj Kumar Srivastava and Shri Mangala Prasad Rai, learned Senior Counsel assisted by Shri Shri Prakash Dwivedi for opposite party no.2 and the learned AGA for the State.

2. The instant application has been preferred for challenging the proceedings of Case No. 36182 of 2024 (State vs. Meena Srivastava) under sections 419, 420, 467, 468, 471 of IPC and Section-3 of Prevention of Damages to Public Property Act registered as Case crime no.67 of 2014 wherein charge sheet has also been submitted after conducting detailed investigation by concerned Investigating Officer whereupon the cognizance of offence has been taken up by learned court of Additional Special Chief Judicial Magistrate, Varanasi on 9.5.2024 and the same is also put under challenge.

3. Learned Senior Counsel appearing on behalf of the applicant submitted that it is the applicant who is in legal possession having title over Plot no.179 measuring about 3600 sq. feet and the same has been transferred through registered sale deed in favour of one Mr. Narendra Rai on 16.3.2004, it is fairly submitted by learned Senior Counsel appearing on behalf of applicant that the sale deed executed by the applicant in respect of plot no.179 is for 3800 sq.feet whereas she had been the legal occupant having title in her favour only to the tune of 3600 sq.feet.

4. Learned Senior Counsel also submitted that the excess area mentioned in the registered sale deed executed by the applicant caused inconvenience to opposite party no.2 in shape of alleged right of way which was available to her but the same has been obstructed in pursuance to execution of 200 sq. feet excess land pertaining to plot no.179 which has been perhaps occupied by the purchaser i.e, one Narendra Rai.

5. Being aggrieved with the excess area which might be under the encroachment carried out by purchaser of plot no.179 which has been transferred by the applicant through registered sale deed, opposite party no.2 preferred civil suit no.1044 of 2011 before learned court of Civil Judge (Junior Division), Varanasi (Smt. Vibha Mishra and others vs. Anjani Srivastava and others) wherein applicant is also one of the defendant as defendant no.2 and the same is still pending to be adjudicated by learned Civil Judge (Junior Division), Varanasi and there is hardly any interim order passed in favour of opposite party no.2.

6. Lastly, learned Senior Counsel appearing on behalf of the applicant submitted that institution of Case Crime No.67 of 2014 against the applicant is nothing but dragging her into unwanted criminal litigation and by way of giving colour to a civil dispute which has already been preferred by way of filing original suit no.1044 of 2011. The sections which have been fastened against the applicant is also not tenable in the eye of law since specifically Section-3 of Damages to Public Property Act is no where related which is admitted to both the parties that the property which has been sold in excess of its area purely belongs to a private property and the adjoining boundaries of the same plot does not contain any public property.

7. Per contra, Shri Mangala Prasad Rai, learned Senior Counsel assisted by Shri Shriprakash Dwivedi submitted on behalf of opposite party no.2 that the fradulent sale deed executed by applicant excess to area of plot no. 179 is itself crystal clearly shows the criminal action carried out, which culminated into preferring First Information Report against her and the sections which have been attracted in pursuance to the illegal action carried out by applicant pertains to right to way available with the opposite party no.2 and the same has been obstructed by way of executing sale deed excess to the area which has been mentioned in pursuance to plot no.179 pertains to the applicant and as such institution of F.I.R which culminated into preferring chargesheet is well in consonance with the law and the matter has to be tried before learned court concerned and the same shall be adjudicated in strict proof of evidence and the statement recorded in shape of testimony of prosecution and defence witnesses.

8. Learned A.G.A, appearing on behalf of State also seconded the arguments raised by learned Senior Counsel appearing on behalf of opposite party no.2 but, at the same time raised a most important issue in respect of preferring original suit no.1044 of 2011 at the behest of opposite party no.2 and further submitted that the filing of proceeding with the civil matter has to be taken into consideration by this court while adjudicating the controversy raised at the behest of the applicant.

9. After hearing rival submissions extended by learned counsel for the parties although, entire facts alongwith law has been submitted by both the learned Senior Counsels appearing for the applicant and opposite party no.2 and the proper assistance has been rendered by the learned AGA at the behest of the State, unfortunately, one vital aspect in shape of mutation of the property is concerned, none of the learned counsels apprised the court regarding the same. The trite civil law specially in terms of possessory right over the property in question cannot be determined only at the behest of execution of sale deed but the same is strictly dependant upon the entries available in the revenue records/municipal corporation which conferred right of the person in pursuance to mode of transfer that might be in shape of sale deed, inheritence, Will or otherwise.

10. In the instant matter, the entire dispute has been raised only at the behest of execution of sale deed executed through registered sale deed by the applicant but at the same time after thorough scrutiny of the chargesheet alongwith documents appended to the rival submission does not disclose that whether the plot in question has ever been mutated or not?

11. In the absence of any mutation proceedings which is dependent upon demarcation of the boundaries as well as adjoining plot holders/stake holders and the same might be in shape of redressal of the grievances whatsoever pertains to opposite party no.2, in the instant matter, there is hardly any description raised by opposite party no.2 that the land which has been sold by applicant in favour of one Ajay Kumar Rai, has been duly mutated and thereafter her right to way has been obstructed, the grievance of the opposite party no.2 cannot be determined only on the basis of execution of sale deed executed by applicant which is espousing the cause of action for preferring FIR, even, when specific Original Suit No. 1044 has already been instituted at the behest of opposite party no.2 way back in the year 2011.

12. The precise argument raised by learned Additional Government Advocate at the behest of State in respect of preferring original suit no.1044 of 2011 at the behest of opposite party no.2, is the main question which has to be borne in mind while deciding the issue, which by-in-large in pursuance to application preferred under Section 482 Cr.P.C, wherein the entire proceedings of the Case Crime No.67 of 2014 has been put under challenge and the same has been decided in catena of judgment rendered by Hon'ble Apex Court:-

1. Rikhab Birani and another vs. State of Uttar Pradesh and another, 2025 SCC OnLine SC 823

2. Delhi Race Club (1940) Limited vs. State of Uttar Pradesh (2024) 10 SCC 690.

3. Thermax Limited vs. K.M. Johny (2011) 13 SCC 412

4. Sharif Ahmed vs. State of Uttar Pradesh 2024 SCC OnLine SC 726.

13. In the light of the above judgements and the proceedings initiated at the behest of opposite party no.2 at the initial stage in pursuance to preferring Original Suit No. 1044 of 2011 for claiming of right to way which has been obstructed in pursuance to the sale deed executed by applicant and again taking resort to the criminal proceeding is not sustainable in the eye of law and as such the proceedings which has been given criminal colour originally initiated as a civil dispute is liable to be set aside.

14. The arguments raised by learned counsel for the applicant seems to be justified in the light of the judgement Rikhab Birani and another vs. State of Uttar Pradesh and another (Supra) mentioned and in pursuance to the above discussions, entire proceedings of Case No. 36182 of 2024 (State vs. Meena Srivastava) arising out of Case Crime No.67 of 2014 are hereby set aside and the application stands allowed accordingly. Order Date :- 22.4.2025 Rakesh RAKESH SINGH High Court of Judicature at Allahabad