BRIJ BEHARI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) By means of this application under S. 482, Cr. P.C. the applicant-Brij Behari seeks to quash the order dated 23-3-1980 (though in the certified copy date mentioned is 28-3-1980), passed by the Joint Magistrate, Basti, and revisional order dated 24-10-1981, passed by the Ist Additional Sessions Judge, Basti, in proceedings under S. 145, Cr. P.C.

(2.) The facts giving rise to the present application are that on the report of S.O. Walterganj dated 10-7-1979 proceedings under S. 145, Cr. P.C. with regard to plot No. 255 area 0-14-7 of village Baheria commenced. The learned Joint Magistrate Basti passed the preliminary order on 10-7-1979. Both the parties filed written statements and adduced evidence regarding their respective claim with respect to the plot in dispute. The opposite party No. 2 of the present application-Jagdambika Prasad, was first party and the applicant Brij Behari, was the 2nd party in the proceedings under S. 145, Cr. P.C. The Petition No. of 1993, Smt. Bhagwan Devi v. State of U.P. first party Jagdambika Prasad in his written statement claimed to have purchased the plot in dispute from one Smt. Israji widow of Lakchmikant through a registered sale deed and to be in possession thereof since then. It is also averred that the IInd party has no connection with the said plot and there was no apprehension of breach of peace from the first party. The Second party Brij Behari in his written statement urged that the sale deed executed in favour of the first party was void and it was executed by an imposter and that the second party was in possession on the basis of succession. It was averred that the mutation proceeding regarding the plot in dispute was pending before the court of Tahsildar concerned and there was no apprehension of breach of peace from the second party. Both the parties prayed in their written statements that the proceedings against them be dropped. Evidence was led by both the parties. The learned Magistrate concerned on the basis of the evidence adduced before him came to the conclusion that the first party Jagdambika prasad was in possession of the plot in question on the date of initiation of the proceedings and he was entitled to possession over the disputed plot until evicted there from in due course of law. He accordingly made order u/S. 145(6), Cr. P.C. for bidding, disturbance of the possession of the first party over the plot in dispute. The second party Brij Behari preferred revision against the order dated 28-3-1980 of the Joint Magistrate, Basti, and the learned First Addl. Sessions Judge by his order dated 24-10-1981, was of the opinion that there was no error in the order passed by the lower court and consequently he dismissed the revision. The Second party has now preferred the present application under S. 482, Cr. P.C. in this Court.

(3.) I have heard Shri U.S.M. Tripathi, learned counsel for the applicant, Shri Jokhan Prasad, learned counsel for the opposite party No. 2 and Shri M. C. Pant learned A.G.A.