BALA DHAMA Vs. SUB DIVISIONAL MAGISTRATE BARAUT

JUDGEMENT

(1.) Family of Suresh Pal Petitioner no. 3,his wife Smt. Bala Dhama, petitioner no.1 and minor son Vijay Kumar petitioner no.2, have preferred instant writ petition under Article 226 of The Constitution of India praying for issuance of a writ of certiorari quashing the impugned orders dated 23.4.2010 passed by Sub Divisional Magistrate, Baraut, district Baghpat in Case No.81 of 2008, Smt. Saroj Dhama Vs. Suresh Pal and others, under Section 145 Cr.P.C., annexure no.25 and lower revisional court's order dated 20.4.2011 passed in criminal revision no. 54 of 2010, Smt. Bala and others versus State of U.P. And Others recorded by Ist Additional Session's Judge, in respect of immovable properties situated in village and P.S. Binauli district Bagpat. By the impugned orders, S.D.M. Baraut district Bagpat, respondent no.1, had ordered both the contesting sides to get their rights decided by competent civil court and till such determination has kept the disputed properties under attachment U/s 146(1) Cr.P.C. since he was unable to determine possession of either side since two months prior to the passing of preliminary order from the oral and documentary evidences led by both the parties. Ostensibly attachment was continued to maintain peace at the spot/ disputed properties consisting of plot Nos.439 area 0.5480 hectare,no. 455 area 1.2320 hectare,no.458 area 0.1120 hectare, and no. 460 area 0.6980 hectare, in all four plots having total area of 2.590 hectare situated in village Binauli.

(2.) Petitioners unsuccessfully challenged S.D.M.'s order before Session's Judge, Bagpat in criminal revision No. 54 of 2010 Smt. Bala Dhama and others Vs. State of U.P. and others, as Ist Additional Session's Judge, Bagpat dismissed their revision by impugned order dated 20.4.2011.

(3.) Back ground facts as revealed from the pleadings and annexures appended with the writ petition indicates that on an application by Smt. Saroj Dhama wife of Budh Prakash, Tehsildar Baraut submitted a report to respondent no.1 on 3.10.2008, in respect of immovable properties situated on plot nos.439, 455, 458, 460 having areas of 0.5480, 1.2320, 1120, 0.698 hectares respectively, and on that basis proceedings U/S 145 Cr.P.C. was initiated by S.D.M., Baraut on 7.10.2008 by passing a preliminary order and registering criminal case no. 81 of 2008, Smt. Bala and others versus Suresh Pal and others vide annexure no.5. It was revealed in the said report by Tahsildar that over those plots co sharers were litigating since long. In 145 Cr.P.C. proceedings first party consisted of by Smt. Saroj Dhama whereas the second party were petitioners. Array of parties coupled with copy of plaint of O.S. no. 161 of 2000, Smt. Bala Dhama versus Smt. Saroj Dhama, annexure no. 3, indicate that the dispute is between step mother on the one side and step son and his family on the other. After passing of preliminary order, on the basis of report by the authorities dated 1.10.2008, vide annexure no.4, immovable properties of plot No.s 439,455,458,460 were attached under Section 146(1) Cr.P.C. by respondent No.1 vide his order dated 15.10.2008 which order vide annexure no. 7. Suresh Pal and others was challenged alongwith order in criminal revision no. 113 of 2008, Suresh pal and others versus Smt. Saroj and others vide annexure no. 8, but their attempt remained unsuccessful as their said revision was dismissed by the Session's Judge, Bagpat on 11.2.2009 vide annexure no. 9.