SANJESH KUMAR Vs. STATE OF UP

JUDGEMENT

(1.) HEARD learned counsel for the petitioners. Learned A.G.A appears for the State. The petitioners are subsequent purchaser of an undivided 1/3rd share from the co-owners of the property. The proceeding under Section 145 of the Cr.P.C was initiated by the petitioners, on which a final order was passed by the Sub Divisional Magistrate, Kheragarh, District Agra on 28.5.2008, declaring that the petitioners are in actual possession of the 1/3rd share of Gata Nos. 1202 and 1274 and that defendants Smt. Ramawati and Shri Radhay Shyam are restrained from interfering in their possession. He also passed an order that the opposite parties shall not dispossess the petitioners except in accordance with the law and that the Supurdgar will prepare the entire accounts and hand over the amount to the applicants. In Criminal Revision No. 158/2008, the revisional court has set aside the order of the Sub Divisional Magistrate on the ground that there is no evidence on record to show that there was any partition between the co-owners. The petitioners did not purchase a defined and partitioned share. The Sessions Judge observed that the Sub Divisional Magistrate acting as executive magistrate did not have powers to decide the title, and the fact of partition and physical possession of a defined share. He has also observed that after the final order under Section 145 Cr.P.C passed, a suit has been filed by the private respondents. Learned counsel for the petitioner has relied upon a judgment in Jhunamalalias Devandas vs. State of Madhya Pradesh and others AIR 1988 SC 1973 in which it was held that the orders passed under Section 145 cannot be set at naught only because unsuccessful party has approached Civil Court. He would submit that the other shares of co-owners have also been sold and that the Sub Divisional Magistrate did not commit any error of law in deciding that the petitioners are in possession of a defined portion purchased by them. The Sub Divisional Magistrate under Section 145 Cr.P.C has no powers to decide the question of ownership and partition. The dispute is confined only to the possession of the properties two months prior to institution of the proceedings. In the present case the Sub Divisional Magistrate had ventured into the prohibited areas of adjudicating the question of title and has recorded a finding that there was a partition between the co-sharers. The revisional court correctly found that there is no evidence of partition, and thus the possession of a definite share could not be ascertained. The rights of the parties in any case have to be decided by the Civil Court. The writ petition is dismissed. It will be open to the parties to seek appropriate reliefs from the civil court.