LOKESH SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) This application under Section 482 Cr.P.C. has been filed with the prayer to quash the order dated 10.02.2020 passed by learned Additional District and Sessions Judge, Court No. 6, Mathura in criminal revision no. 304 of 2018 and to quash the order dated 29.09.2018 passed by Sub-Divisional Magistrate, Chatta, Mathura in case No. 17 of 2017, under Sections 145 and 146 Cr.P.C., police station Kosi Kalan, district Mathura.

(2.) It has been argued by learned counsel for the applicant that impugned orders are against facts and law and thus, not sustainable and the impugned proceedings are abuse of the process of court. It was submitted that disputed land of khasra nos. 793, 794 and 798 was abadi land of one Jeevan, who in his life time, on 01.11.1971 has executed a sale-deed of his property in the name of Yudhishthir Singh, Atar and Ratan Singh and that on the basis of partition, they came into possession of 1/3rd - 1/3rd part of the property in question. After death of Ratan Singh, his property was shared by his three sons and four daughters. On 20.08.2016, applicant's wife Anita Devi has purchased 1/7th part i.e. 31.50 sq. meter from Chandania and 1/7th part from Neelam, daughters of Balram, who is one of the son of Ratan Singh. Similarly 1/7th part was purchased from Devwati, who is one of the daughter of Ratan Singh through registered sale-deed on 16.09.2016. It was submitted that the opposite party no. 2 and his associates were trying to forcibly take over possession on the disputed property by dispossessing the applicant. In this connection, applicant's wife has filed a civil suit before the Civil Judge (SD), Mathura vide original suit no. 155 of 2017 (Smt. Anita Devi v. Smt. Radha Rani and Others). Learned counsel has further submitted that opposite party no. 2 is claiming his right on the basis of one patta, allegedly executed by one Vijay Pal, on the basis of power of attorney, but he has no power to do so. Learned counsel has submitted that after that opposite party no. 2 has moved an application under Sections 145 and 146 Cr.P.C. against the applicant vide case no. 17 of 2017 and the Sub-Divisional Magistrate, Chatta, district Mathura has passed the order dated 27.04.2017 under Section 145(1) Cr.P.C. and under Section 146(1) Cr.P.C. on the same day without providing any opportunity of hearing to the applicant. The order dated 27.04.2017 was challenged by the applicant in revision no. 122 of 2017 and that revision was allowed and the order dated 27.04.2017 was quashed and the matter was remitted back to the court of concerned Sub-Divisional Magistrate, but after that learned Magistrate has passed a fresh order under section 146(1) Cr.P.C. without considering the evidence of the applicant and that disputed property was attached vide impugned order dated 29.09.2018. It was also stated that Smt. Radha Rani wife of Yudhishthir Singh has also filed civil suit no. 222 of 2017 before the court of Civil Judge (SD), Mathura on 27.05.2017 for cancellation of sale-deed executed in favour of the wife of applicant. The order dated 29.09.2018 passed by concerned Sub-Divisional Magistrate was challenged in criminal revision, but the revision was dismissed vide order dated 10.02.2020 without considering the facts and evidence. Learned counsel has further argued that the order dated 29.09.2018 is arbitrary and illegal and has passed ignoring the relevant evidence of applicant and that the learned Magistrate has committed illegality while passing the order under Section 146(1) Cr.P.C. It was submitted that in view of entire facts and evidence of the matter, both the impugned orders are liable to be set aside.

(3.) Learned counsel for opposite party No. 2 has argued that there is no illegality or perversity in the impugned orders. It was submitted that the opposite party No. 2 is in continuous possession of the disputed property on the basis of lease deed executed in his favour in the year 1989 and that lease has not been cancelled by any court so far. The applicant is claiming rights on the disputed property on the basis of forged sale deed. The Sub-Divisional Magistrate has arrived at subjective satisfaction that there was apprehension of breach of peace over possession of disputed property. Both the courts below have passed detailed and reasoned orders considering all relevant facts and thus no case for interference in the impugned orders is made out.