AAINUL HAQ Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Shri Manoj Mishra and Shri Sheo Ram Singh, learned counsels for the applicants and in opposition, Shri S.T. Ali, learned counsel for opposite party no. 2 and Shri Attrey Dutt Mishra, learned A.G.A. for the State of Uttar Pradesh and perused the record.

(2.) Submission made from the side of the applicants of Application u/s 482 No. 11826 of 2015 is that the dispute relates to House No. J-14/118, Mohalla Qazi Sadullahpura, Police Station - Jaitpura, District - Varanasi, which was purchased by one Hakim Abid Hussain, by means of sale deed dated 23.01.1947 executed by one Sri Ram, son of Bhagelu and Batuk Prasad, son of Akvam Rajbhar, both residents of Mohalla Noton Bazar, Chetpur Road City, Calcutta and got possession over the same. The pedigree of Hakim Abid Hussain has been given in Para 3 of the affidavit filed in support of the application, which makes it clear that he had five sons and two daughters and after his death, all the above sons and daughters became legal heirs and representatives of the 1/7th share of the disputed house as well as its owner. It is further submitted that one of the legal heirs of Hakim Abid Hussain, namely, Hakim Gafoor Ahmad, having only 1/7th share in the said property, with ulterior motive and without notice to other legal heirs, transferred the entire disputed property by means of registered sale deed dated 07.01.1969 in favour of his wife Sukaina Bibi, which was ab initio void document which was never acted upon and it is settled law that void document which has not been acted upon, would not require to be got cancelled from any competent court. Thereafter, behind the back of the legal heirs of Late Hakim Abid Hussain, Sukaina Bibi, wife of Hakim Gafoor Ahmad, gifted the disputed house by oral hibanama to Aslama Tabassum i.e. opposite party no. 2, wife of Mukhtar Hussain, who happened to be daughter of real sister of Sukaina Bibi. Thus, Sukaina Bibi herself does not have any valid title over the said property and could not have executed the hibanama of the same in favour of opposite party no. 2 and therefore, despite that hibanama, the legal heirs of Late Hakim Abid Hussain continued to remain owners and in possession of the disputed house jointly of their 1/7th respective shares. Further, it is submitted that after the death of Hakim Junaid Hussain, son of Late Hakim Abid Hussain, his legal heirs became owners and in possession of his 1/7th share. Similarly, after the death of Haider Ali, son of Late Hakim Abid Hussain, his legal heirs also became 1/7th share owner of the said property. It is further submitted that the disputed property lies in the territorial limits of Nagar Nigam, Varanasi, though the entries made therein would not be treated to be proof of title over the said property. Gafoor Ahmad, son of Late Hakim Abid Hussain, by manipulation and playing fraud on another legal heir of Late Hakim Abid Hussain, got his name mutated over the said property in the Nagar Nigam records and later on, opposite party no. 2, the donee, on the basis of hibanama, got her name recorded in Nagar Nigam. The opposite party no. 2 has lodged a false F.I.R. against eleven accused, including the applicants, alleging that the transferor has transferred the disputed property in favour of the applicants, who are bona fide purchasers. After the death of their father, the transferors executed a registered sale deed in favour of the applicants after acknowledging the sale consideration and put the applicants in physical possession of the same. The Investigating Officer has, in a routine manner, recorded the statements of the witnesses and exonerating two persons, submitted charge-sheet against the vendors and the vendees of the property on 29.07.2014, whereon the trial court has taken cognisance on 06.04.2015 in a mechanical manner. The applicants had no knowledge about the internal dispute between the transferors and the claimants of the disputed property/opposite party no. 2, hence, they have not committed any offence under Sections 419, 420, 506 and 120B of I.P.C. The opposite party no. 2 is aggrieved by the execution of the sale deed dated 06.03.2014 in favour of the applicants, therefore, she had option to get herself declared exclusive owner of the disputed property from the appropriate forum. The dispute is purely of civil nature. There is no allegation against the applicants of cheating, forgery or dishonest intention. The disputed sale deed is not subjudice in the impugned proceedings and till the same is got declared null and void by the civil court, no prosecution would stand. Therefore, it is prayed that the criminal proceedings against the applicants should be quashed, the same being maliciously instituted against them.

(3.) It is submitted in the affidavit filed in Application u/s 482 No. 24100 of 2015 that the applicants belong to one family, while opposite party no. 2 is claiming her right as daughter of sister of the aunt of applicant no. 1. The dispute relates to the property of the grandfather of applicant no. 1, Late Hakim Abid Hussain, who had purchased the House No. J-14/118 by registered sale deed, as mentioned above and after the death of Hakim Abid Hussain, the applicants, being legal heirs, are owners and in possession of the said property and the applicant nos. 2, 3, 4 and 5 have filed an injunction suit before Civil Judge (Junior Division), Varanasi against opposite party no. 2, copy of which is annexed as Annexure No. 3 to the affidavit filed in support of the application, in which the court passed injunction order on 01.08.1995 against opposite party no. 2, copy of which is annexed as Annexure No. 4. The applicants of Application u/s 482 No. 24100 of 2015, had executed sale deed in favour of Iqbal Ahmad and Aainul Haq, applicants of Application u/s 482 No. 11826 of 2015 on 06.03.2014 of their respective shares, copy of which is annexed as Annexure No. 5 to the affidavit filed in support of the application. The co-owners of the house in question, namely, Malka Khatoon, Khatiza Bibi and Nanhi Bibi filed partition suit before the civil judge, against opposite party no. 2 on 04.07.2014 in respect of the property in dispute in the court of Principal Judge (Junior Division), Varanasi, copy of which is annexed as Annexure No. 6. The uncle of the applicants, Gafoor Ahmad and his wife Sukaina Bibi died issueless, therefore, the property in question vested in the remaining successors of Late Hakim Abid Hussain and therefore, opposite party no. 2, not being legal heir of Hakim Abid Hussain, could not inherit his property. Hakim Gafoor Ahmad and Sukaina Bibi had never executed oral hibanama in favour of opposite party no. 2, hence, opposite party no. 2 could not have become its owner and she is claiming the disputed property of the applicants illegally. The first information report has been lodged by her maliciously. No offence under the above-mentioned sections is made out. Cognisance has been taken by the learned Magistrate illegally, hence, the proceedings against the applicants need to be quashed, the same being malicious prosecution.