RAJENDRA PRASAD Vs. STATE OF U.P.

JUDGEMENT

(1.) This application under Section 482 of the Code of Criminal Procedure, 1973 has been moved on behalf of the applicants with a prayer to quash the impugned orders dated 01.11.2013 and 02.06.2014, passed under Sections 145(1) and 146(1) of the Code, respectively, as well as to quash the entire proceedings initiated against the applicants in pursuance of the aforesaid orders passed by opposite party no. 2/Sub-Divisional Magistrate, Machhali Shahar, Jaunpur, in Case No. 71 of 2013 (Sushila Devi v. Rajendra Prasad and others), under Section 145(1) of the Code, Police Station - Machhali Shahar, District - Jaunpur.

(2.) It is mentioned by learned counsel for the applicants in the affidavit that opposite party nos. 3 and 4 have initiated proceedings under Section 145(1) and 146(1) of the Code for attachment of the abadi land situated in Gata No. 930 area 0.328 hectare situated at Village - Jamuhar, Pargana Ghisua, Tehsil - Machhali Shahar, District - Jaunpur, which is already recorded in the name of father of the applicants. The father of the applicants was the owner of the said land and was in possession of it. The extract of khasra has been annexed as Annexure 1. Opposite party nos. 3 and 4 have no concern with the said abadi land, yet they are trying to take forcible possession over the rooms which are constructed on the said abadi land. The applicants have also constructed a boundary wall over the said piece of land, which opposite party nos. 3 and 4 have forcibly dismantled and a false and fabricated application has been given to the Sub-Divisional Magistrate, Machhali Shahar, stating therein that the boundary wall of opposite party nos. 3 and 4's land has been dismantled by the applicants. The said application was given by the opposite parties on 28.10.2013 to Sub-Divisional Magistrate, which was marked to tehsildar for his report. The report was submitted by him, stating therein that the said land was in the name of Hariram son of Matar as bhumidhar with transferable rights and that there was no dispute. However, on Gata No. 930 area 0.328 hectare, which is recorded as abadi land in kshreni 6(2), both the parties have raised dispute, in which towards western side of the house of opposite party nos. 3 and 4, the house of the applicants is situated and in front of their house, on the southern side and eastern side, Kaltu and Sitai are owners of the land, who died 30 years ago and after their death, the applicants are said to have come in possession of the said land measuring 27 x 11 sq. ft., which piece of land opposite party nos. 3 and 4 are claiming as khandani, while the applicants are claiming the said piece of land on the basis of possession. It is also stated in the said report that on the land in dispute, the house of the applicants are also constructed apart from khoonta and one garbage bin. Also, banskothi and marha belonging to the applicants were found there. The said garbage bin is said to be of Parasnath (opposite party no. 3) for the last two years. The report of tehsildar is annexed as Annexure No. 3. Further, it is mentioned that since the said report was incorrect, the applicants filed an objection against the same on 31.01.2014. Opposite party nos. 3 and 4 moved an application under Section 145(1) of the Code on the ground that there was likelihood of breach of peace. Therefore, the proceedings under Section 145(1) and 146(1) of Code could be drawn. Thereafter, the opposite party no. 2 i.e. S.D.M., Machhali Shahar passed an order dated 01.11.2013, directing the S.H.O., Kotwali, Machhali Shahar to serve notices upon the parties to appear before him with their explanations. After coming to know about the said notices, the applicants had filed their objection along with the affidavits, categorically stating that opposite party nos. 3 and 4 had no concern at all with the said land as the same was abadi land recorded in the name of father of the applicants and it was further mentioned that the said land belonged to Kaltu and Sitai, who were family members of the applicants, who had died about 40 years ago and since thereafter, the said land was being used by father of the applicants who had constructed dalan, nand, charni and pashushala after death of his father, the applicants were occupying and using the said land. It is further mentioned that opposite party nos. 3 and 4, being neigbours of the applicants, were trying to take possession of the said land illegally and in effort of that, they had come to the house of the applicants and tried to take possession of their house, which was resisted by the applicants, whereon they were ruthlessly beaten up, regarding which, an N.C.R. was lodged by the applicants against opposite party no. 3 Parasnath Yadav and his son. It is further mentioned that the applicants had moved an application before opposite party no. 2 on 28.01.2014, which was kept on record by him, in which it was clearly mentioned that during the proceedings under Section 145(1) of the Code, opposite party nos. 3 and 4 demolished the construction of the boundary wall and had beaten the applicants with lathi danda, which is annexed as Annexure No. 8. With a mischievous aim to forcibly take possession over the said land, opposite party nos. 3 and 4 moved an application under Sections 145(1) and 146(1) of the Code for attachment of the said land on 30.01.2014, against which, the applicants filed an objection on 02.06.2014, stating therein that proceedings under Section 146(1) of the Code were wholly illegal and unwarranted as opposite party nos. 3 and 4 have no right or title over the disputed land. But the opposite party no. 2 did not consider this aspect of the matter and has passed the impugned order dated 02.06.2014 under Section 146 of the Code, by which he has attached abadi land of the applicants, which is annexed as Annexure No. 11. Opposite party no. 2 has not applied his judicious mind and has ignored the fact that the disputed land was recorded in the name of father of the applicants and that opposite party nos. 3 and 4 had got nothing to do with it. Further, it is mentioned that, in fact, the land of Gata No. 930 area 0.328 metre belonged to one Vishnu and after his death, a suit was filed by Dalai Ram, uncle of the applicants against Subai, who was father of the applicants in respect of partition of the same, which has been marked as 'A' 'B' 'C' 'D' 'E' 'F' in the suit of the plaintiff, which is pending in the court of Special Judge, Juvenile Division, Jaunpur as Original Suit No. 319 of 2004. In the said case, application 6c filed by Dalai Ram has not been decided as yet. It is surprising that even though the opposite party nos. 3 and 4 have no right or title over the said land, they have moved an application, claiming their share, which shows that they are absolute strangers to the abadi land of the applicants. Since the opposite party no. 2 is working arbitrarily and appears to be bent upon giving forcible possession to opposite party nos. 3 and 4 over the house of the applicants, therefore, in these compelling circumstances, a civil suit has been filed by the applicants, praying therein that opposite party nos. 3 and 4 be restrained from interfering in peaceful possession over the house in dispute and be further restrained from cutting trees and demolishing boundary wall of the applicants. It is further mentioned that on one hand, opposite party no. 2 has initiated proceedings under Section 107 of the Code read with Section 151 of the Code, directing both the parties to file their bonds to maintain peace, while at the same time, it had also issued proceedings under Section 146(1) of the Code despite the fact that title and possession of the applicants over the land is not in dispute. Therefore, the impugned order of attachment is nothing but an abuse of process of law and the application deserves to be allowed and the impugned orders deserve to be quashed.

(3.) From the side of opposite party nos. 3 and 4, counter affidavit dated 11.05.2019 has been filed, wherein it has been mentioned that the original door of the applicants' house is on the western side, but they have opened a new door on the eastern side to encroach upon the land of opposite party nos. 3 and 4. When in October 2013, they started encroachment, opposite party nos. 3 and 4 gave an application to the Station House Officer, Kotwali Macchali Shahar, who did not take any step, whereafter, an application was given to opposite party no. 2 to attach the disputed land and hand-over the same to a third person, against which, the present proceedings under Section 482 of the Code have been filed by the applicants and order of status quo has been passed by this Court, but the applicants have encroached upon the aforesaid land after the order of this Court, regarding which, opposite party nos. 3 and 4 have given an application to the police station concerned, but they have not taken any action. A true copy of the said application dated 27.08.2014 is annexed as Annexure No. CA-2. Further, it is mentioned that the applicants have succeeded to show their name in the khasra in collusion with one Halka Lekhpal illegally and arbitrarily. The disputed arazi belongs to the ancestors of opposite party nos. 3 and 4. The applicants have themselves admitted that they are not the owners of the said arazi and are claiming the same on the basis of possession. The applicants are only trying to pressurize opposite party nos. 3 and 4 by every means because they are poor people. The applicants have not only beaten opposite party nos. 3 and 4, but have also damaged their goods, photocopies of which are annexed as Annexure CA-3. The property in dispute never belonged to the applicants and they have succeeded due to money power to get the name of their father entered in the khasra in collusion with Halka Lekhpal.