RAM SURAT Vs. STATE OF U P

JUDGEMENT

(1.) G. P. Mathur, J. This petition was filed under Section 482, Cr. P. C. for quashing of the final order passed in a proceeding under Section 145, Cr. P. C. on an earlier date of hearing i. e. 13-9-90, an application was move by the applicants for converting the present petition under Article 226 of the Constitution of India in view of the Full Bench decision of this Court given in case of H. K. Rawal v. Midhi Prakash, 1989 ALJ 73. The applicants have supplied requisite court-fee. The application was allowed and the petition has been heard as a writ petition.

(2.) THE Police of P. S. Balua gave a report on 22-6-79 before the S. D. M. Chandauli, Varansi that there was apprehension of breach of peace between the petitions on the one hand and respondent Nos. 2 to 4 on the other hand, with regard to possession over certain immovable property. On being satisfied that there was apprehension of breach of peace, learned S. D. M. passed a preliminary order under Section 145 (1), Cr. P. C. on 28-6-79 and directed the parties to appear on 4-7-79 and lead evidence in support of their claim. THE disputed property was described as plot No. 780/2, Bamboo clumps situate in plot No. 780/3, plot No. 763 and one Jack fruit tree situate in plot No. 756. THE parties appeared before the learned Magistrate and, adduced oral and documentary evidence in support of their case. After consideration of the evidence, learned Magistrate held that first party (respondent Nos. 2 to 4) was in possession over the disputed property on the date of passing of the preliminary order and two months prior thereto. He accordingly restrained the second party (petitioners) from interfering in the possession of the first party over the disputed property till the decision of a competent Court regarding title of the parties. Against the aforesaid judgment and order dated 27-7-79 of the S. D. M. , Chandauli, the second party filed a revision but the same was also dismissed by the learned 3rd Additional Sessions Judge, Varanasi by his judgment and order dated 11-11-87. THE petitioners have challenged the aforesaid orders dated 27-7-1987 of the S. D. M. and 11-11-1987 of the 3rd Additional Sessions Judge, Varanasi by means of the present petition.

(3.) IT may also be mentioned in this context that plea was not raised by the petitioners either before the learned Magistrate or before the learned Addl. Sessions Judge in revision. The petitioners cannot be allowed to raise disputed question of fact, for the first time, in a writ petition under Article 226 of the Constitution of India.