MOHAMMAD ZAFAR Vs. STATE OF U P

JUDGEMENT

(1.) G. D. Dube, J. This revision has been preferred against the judgment and order of Sessions Judge, Bijnor, who has allowed the revision filed by opposite-party No. 2 against the judgment and order of Sub-Divisional Magistrate, Chandpur district Bijnor. The Sessions Judge' has set aside the order of Sub-Divisional Magistrate and quashed the proceedings initiated by the learned Magistrate under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the Code ). The Sessions Judge has also directed that if the crop standing in the property in dispute had been sold in pursuance of the order of the learned Magistrate, then the sale proceeds be paid to the opposite party No. 2.

(2.) THE applicant had moved an application on 28-3-1989 before the Magistrate for initiating proceedings under Section 145 of the Code. He had alleged in the petition that one Smt. Shakooran widow of Chhiddu was the owner of the property in dispute. She was real aunt of the applicant. She had executed a Will in favour of the applicant. THE applicant had cultivated the land and a crop of wheat was standing. Since the opposite-parties had threatened on 27-3-1989 that they will cut the crop, the applicant had appre hension that there will be a breach of peace. It transpires that opposite-party Kaneeza filed an objection against the application. It was stated that in 1973 a litigation had taken place between the parties in revenue court in mutation proceedings in which the applicant had admitted the possession of opposite-party No. 2 It was also alleged that the applicant, taking the benefit of poor pecuniary condition of opposite-party No. 2, iiad initiated the proceedings. It was alleged that she -vas in possession and the applicant had no concern with the property. On these facts she had prayed for withdrawing the order dated 28-3-1989.

(3.) IN the case of Vinay Kumar (supra), it was held that mutatioa court is a court oi competent jurisdiction within the meaning of Section 16 of the Code. It was held that a mutatioa court is fully competent to decide as to who is entitled to the possession of the property. Once this order has been passed, proceedings under Section 145 of the Cade should be set aside. The facts of this case are quite different. IN this case, the recorded tenure-holder had sold the land in favour of the applicant by means of a sale- deed dated 27-6-1975. Ora Prakash the opposite-party had filed an application under Section 145, Cr. P. C. alleging that there was reasonable apprehension of breach of peace regarding possession. A preliminary order was thereafter passed on 16-2-1976 attaching the land. After the execution of the sale-deed mentioned-above, mutation proceedings had started. On 3-2-1978 the Board of Revenue decided the matter in favour of applicant Vinay Kumar. Accordingly the names of the applicants were recorded over the plots in dispute in village records. On these facts, the observations were made. IN this case, mutation is said to have taken place in 1973 whereas proceedings under Section 145 oi the Code were started in April, 1989. Hence any decision of mutation court about sixteen years before the start of the proceedings cannot amount to a decision of a competent court in 1989. The proceedings of mutation are summary in nature. They cannot amount to a decision by a court having competence to decide the right and title of the parties. The facts in the case of Vinay Kumar (supra) were entirely different. During the pendency of proceedings under Section 145 of the Code, the mutation court had decided the question of possession. Therefore, on this basis, the Magistrate could proceed under Section 146 oi the Code. The facts of the present case are quite different from the case of Vinay Kumar. The ratio of Vinay Kumar's case cannot be applied to the present matter.