SACHCHIDA NAND MISRA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is a criminal revision filed under S.397/401 of the Criminal P.C., 1973 (for short the Code).

(2.) The facts are few and simple and they are these. In respect of plot No. 103 (area 96 bighas and 15 biswas) situated in Village Phulsunga, Police Station Rudrapur, Tahsil Kiccha, District Nainital, proceedings under S.145 of the Code were initiated at the instance of the opposite parties Nos. 2 to 4 (hereinafter referred to as the first party) against the applicants who were second party on the basis of an application in which allegations were made that there was an apprehension of breach of peace in respect of the possession of the land in dispute. One Ayodhya Prasad Tewari, the recorded tenure-holder, died in 1977 without leaving any heir. In fact the first party (opposite parties Nos. 2 to 4) alleged to be his heirs and the applicants (the second party) were also alleged to be his heirs and both were recorded in the revenue papers. The applicants and the opposite parties Nos. 2 to 4 were cultivating the land jointly and the first party has harvested the rabi crops and the applicants at that time alleged that they were in exclusive possession and threatened to harvest the crops by force. After harvesting the crops the applicants threatened to attack the first party and tried to demolish their hut situated on the north side of the land. In fact the applicants started beating the first party on 10-6-80 and took away the hurt, (sic) a report was lodged and as season for kharif crop was coming closer and the applicants were trying to disturb the possession and that in this way there was an apprehension of the breach of peace, it was prayed that the proceedings under S.145 of the Code may be initiated.

(3.) The second party (the applicants) alleged to be in exclusive possession over the land in dispute. The paddy crops sown by the applicants are standing and some land is vacant which would be utilised for sowing other crops and the first party was bent upon creating disturbance of the peace. The Magistrate passed a preliminary order and also an order for attachment under S.146 of the Code on 24-6-1980 and directed the parties to lead their evidence. Both the parties led evidence oral and documentary. By order dated 24-8-1981 the learned Magistrate held that the present applicants (the second party) were in actual possession over the land in dispute and directed the first party (opposite parties Nos. 2, 3 and 4) not to interfere with the possession of the present applicants. Against this order a revision was filed which has been allowed by the learned Ist Additional Sessions Judge, Nainital vide order dated 19-3-1982 on the ground that both the parties appeared to be co-tenants and possession of one co-tenant is possession for all. Hence the proceedings under S.145 of the Code need not have been initiated. It is against this order that the present revision has been filed.