BAKAR ALI KHAN Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard learned counsel for the petitioners, learned counsel for the respondents, learned AGA for the State and perused the material placed on record.

(2.) Present petition under Article 227 of Constitution of India has been filed by the petitioner challenging the order dtd. 6/10/2022 passed by the Additional Session Jduge (Fast Track Court- II), Rampur in Criminal Revision No.78 of 2022 as well as the order dtd. 28/2/2022 passed by Sub Divisional Magistrate, Rampur in Case No.23 of 2022, under Sec. 145 of Cr.P.C. Vide order dtd. 6/10/2022, the order dtd. 28/2/2022, passed by Sub Divisional Magistrate, Rampur has been affirmed and the criminal revision filed by the present petitioners has been dismissed.

(3.) The factual matrix of the case relevant for the purpose of present petition are that the proceeding under Sec. 145 Cr.P.C. began before the Court of Up Zila Magistrate, Tehsil Sadar, Rampur on report of Tehsildar Sadar dtd. 3/1/2022, in which it was informed that a fact finding inquiry was conducted regarding Khatauni/Khata No.10 and 11 situated at Village Madaiyan Nadar Bagh, Tehsil Sadar. According to the order of then S.D.M. dtd. 4/3/1975, the land measuring of 13 bigha, situatted at Village Madaiya, Nadar Bagh, which is a part of Khevat No.6 was divided among the heirs of Late Ashraf Ali Khan, in which his sons namely Ishrat Ali Khan, Afsar Ali Khan and Murshad Ali Khan have got 11193 sq. yards each and daughter Akhtari Begum got 5596.5 sq. yards land. Afsar Ali Khan and Murshad Ali Khan executed total 4 sale deed of their share of land measuring 13140 sq. yards on different dates. Afsar Ali Khan sold entire 11193 sq. yards, which was obtained by him through succession in favour of different persons and through different sale deeds and therefore, no share of him remain in Khatauni/Khata Nos.10 and 11. Other heirs of Asharaf Ali Khan also sold lands coming to their share in favour of different persons. As Afsar Ali Khan had already sold 11193 sq. yards land, which came to his share after death of his father, his sons had no right to execute sale deed dtd. 24/1/2020 in regard to plot Nos. 178- 179 in favour of Parvej Akhtar Khan, son of Qamar Akhtar Khan by projecting the land through boundary. The land sold to Parvej Akhtar was mutated in the name of purchaser Parvej Akhtar Khan but a restoration application was filed by the applicant Mohd. Suleman Siddiqui (present respondent No.2) and mutation application was restored and the matter of mutation still pending before Tehsildar. The disputed plot was lying vacant, on which Bakar Ali Khan as well as Parvej Akhtar Khan were trying to raise construction with a view to grab the land on 14/12/2021. They also constructed a gate and partial boundary, which was stopped by Tehsildar Sadar on visiting the spot. He also stated that there is apprehension of breach of peace on the spot. The case was registered and notice was issued to opposite party (Bakar Ali Khan and others) but they failed to appear and did not filed any objection. The disputed land was initially in the nature of groove but in course of time, it converted into abadi and several commercial and residential buildings were constructed on said plot. The case of first party Suleman Siddiqui was that he has acquired the disputed plot by a registered gift deed executed from his real 'bua' Smt. Sageera Yusuf on 3/9/2017, who had purchased this plot through registered sale deed dtd. 24/7/2009 from Mukarram Hussain Siddiqui. The case of the first party was that he was continuing in possession of said land from the date of prilimanary order under Sec. 145 Cr.P.C. and prior to two months therefrom. The colored map was also prepared wherein when the entire 13 bigha land was partitioned amonst the heirs of Asharf Ali Khan. The portion of land allotted to each of the heirs of Ashraf Ali Khan was demarcated in colored map. A copy thereof was filed by the first party before the court of Up Zila Magistrate. Ishrat Ali Khan, one of the heirs of original owner Ashraf Ali Khan, had sold a portion of his share of land through two registered sale deeds in favour of 21 persons, who had partitioned purchased land by giving a pathway amonst them, on which 12 shops connected with Rahe Murtaza were constructed and sold to 12 purchasers through sale deed dtd. 28/7/1983, total area of 12 shops consisted of 2 biswa, 10 biswansi by earmarking the same through boundary marks. Ishrat Ali Khan also sold the land i.e. 1 bigha, 17 biswa, 11 biswansi land lying behind 12 shops to 21 persons through two sale deeds dtd. 28/7/1983 covering 4 biswa, 605 sq. yards land and the purchasers had constructed their respective houses thereon. The case of first party Suleman Siddiqui was that his name has been mutated in revenue records on the basis of gift deed dtd. 13/9/2017 executed by his Bua Smt. Sageera Yusuf whereas mutation order passed in favour of Bakar Ali Khan and others has been cancelled vide order dtd. 25/1/2022 passed by the Tehsildar Sadar and they are no longer recorded tenure holder in Khatauni. Bakar Ali Khan had executed a sham sale deed in favour of Parvej Akhtar on 20/24/1/2020 taking benefit of his name lying in Khatauni. As no land was lying in his name, the boundary shown in the sale deed was of no value. A mutation order passed in favour of Parvej Akhtar on the basis of said sale deed vide order dtd. 13/12/2021. The first party has also filed a civil Suit No.404 of 2020 (Mohd. Suleman Siddiqui vs. Parvej Akhtar and others), for cancellation of sale deed, which is pending in the court of Civil Judge (J.D.), Ramgarh. The opposite party Bakar Ali Khan and others did not appeared in proceedings before Up Zila Adhikari. Parvej Akhtar appeared but he did not file objection and Bakar Ali Khan and others did not appear in spite of fact that service/process was held to be sufficient on therm. After hearing submissions of first party and on the basis of record, the Up Zila Magistrate vide order dtd. 28/2/2022 directed the second party Bakar Ali Khan and Parvej Akhtar Khan and others were directed to refrain from interfering in possession of disputed land lying in possession of first party and a copy of the order was sent to S.H.O. and Tehsildar concerned for necessary action.