JAI NARAIN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This writ petition is directed against order dated 25-6-1992, passed by Sub- Divisional Magistrate, Meja, Allahabad, releasing the property in question in favour of respondents 4 and 5, in proceedings under Section 145, Cr. P.C. and order dated 17/07/1992, passed by Sessions Judge, Allahabad, affirmed the said order.

(2.) The facts, as disclosed in the writ petition are that one Birja was bhumidhar of the land in question. It is alleged that he executed a registered agreement to sell on 16/07/1984 in favour of Jai Narain, petitioner No. 1. On 27/08/1984 he executed a registered sale deed in favour of one Ram Chandra. Ram Chandra executed sale deed on 17/02/1986 in favour of Raj Kumar and Vinod Kumar, respondents 4 and 5. They filed mutation application and the mutation order was passed in their favour. The petitioner No. 1 filed suit No. 403 of 1984 in the Civil Court for specific performance of the agreement and for possession. While the suit was pending, the respondents filed an application under Section 145 Cr. P.C. for taking proceedings under the said provision regarding land in question. They also moved an application for attachment under Section 146, Cr. P.C. On 28/12/1989 the police submitted a report that there was apprehension of breach of peace between the parties regarding the land in question and after being satisfied from the police report and other evidence on record, the Magistrate passed a preliminary order under Section 145, Cr. P.C. and further passed attachment order and the property after attachment was given to Supurdgars. The suit which was filed by the petitioner, Jai Narain was abated on 28/03/1992. The Sub-Divisional Magistrate by order dated 25/06/1992 had held that respondents 4 and 5 were in possession on the date of preliminary order and within tow months prior to the said date and released the property in their favour. The petitioners, aggrieved against the said order, filed revision which was dismissed by Sessions Judge, respondent No. 2, by order dated 17/07/1992.

(3.) I have heard learned counsel for the parties. Learned counsel for the petitioners urged that the Sub-Divisional Magistrate had no jurisdiction to initiate the proceedings under Section 145, Cr. P.C. when the suit filed by petitioner No. 1 was pending in the Civil Court. He was filed the suit in the year 1985 for specific performance of the agreement and if there was any dispute regarding possession, it was only the Civil Court which was competent to pass orders. He placed reliance on Ramsumer Puri v. State of U.P., AIR 1985 SC 472 : (1985 Cri LJ 752). In that case a suit for possession and injunction was filed in the Civil Court and the question of title was gone into and by judgment dated 28/02/1981, the said suit was dismissed. An appeal was filed which was pending for disposal. When the appeal was pending the proceedings under Section 145, Cr. P.C. were initiated. The application was filed under Section 482, Cr. P.C. in the High Court which was rejected. The Supreme Court, in appeal, held as follows :-