BHAGWATI PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) A. P. Sahi, J. The petitioner contends that the Magistrate as well as the revisional Court have erred by dropping the proceedings in view of the fact that the petitioner is in possession and that in view of the History of the litigation, the proceedings for attachment ought to have been continued as there was a continuous existence of an apprehension of breach of peace and there was a serious dispute with regard to possession.

(2.) IN order to appreciate the aforesaid contention of the petitioner, it is to be noticed that the property in dispute which is an agricultural land appears to have been recorded in the name of the father of the petitioner Gaya Prasad and the same continued during consolidation operations. After the consolidation was over, the petitioner alleges that his father Gaya Prasad and his brother Bhawani had departed from the village and were living elsewhere for the past 15 or 16 years and that he was the exclusive owner of the said property. To assert his aforesaid rights, he filed a Suit for declaration before the Revenue Court being original Suit No. 285 of 1989 under section 229-B of the U. P. Zamindari Abolition and Land Reforms Act, 1952; a copy of the plaint is on record as Annexure-1 which was verified on 7. 6. 1989. This Suit was filed by the petitioner against his own father Gaya Prasad and his real brother Bhawani Prasad. Under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, the Court also has the power to grant a temporary injunction under section 229-D which appears to have been invoked on 2. 6. 1990 in favour of the petitioner. The petitioner alleges that since the property in question was ancestral property, and since his father was simply the Karta of the family, therefore, his name had been recorded only in a representative capacity and that the petitioner as well as the other members had separate shares in the property to the extent of 1/3 each. The declaration, therefore, was, thus, sought on the strength of the said allegation. The said temporary injunction was, however, vacated on contest by the father of the petitioner on 19. 1. 1991. Against the said order, a revision is alleged to have been filed in which a stay was granted on 22. 1. 1991 and ultimately the revisional authority made a reference to the Board of Revenue for setting aside the order dated 19. 1. 1991. This reference was answered by the Board of Revenue on 26. 5. 1997 whereby the order vacating the injunction was quashed and the matter was remanded for a decision afresh. This order was passed on 26. 5. 1997.

(3.) IT is, thus, clear from the aforesaid facts that the property was brought under attachment through proceedings under section 145 Cr. P. C. in spite of the orders being passed both by the Revenue Court as well as by the Civil Court. In between. In some misc. proceedings, it appears that there was a stay of further proceedings in the Suit by this Court as well which is evident from the order dated 21. 11. 2002 in Writ Petition No. 49354 of 2002. However, the said interim order does not in any way take away the impact of the orders passed by this Court on 10. 12. 1997 and 30. 10. 1998 nor do the same find reference in the said order.