MAHIPAT Vs. NATHURAM AND OTHERS

JUDGEMENT

(1.) This petition has been preferred under Section 482 of Cr.P.C for quashing the order dated 20.09.2010, passed by IIIrd Additional Sessions Judge, Bhind in Criminal Revision No.161/2010, whereby the order dated 19.08.2010 passed by the SDM, Bhind in Case No.184/2009 X 145 has been affirmed.

(2.) The brief facts of the petition are that petitioner has filed an application under Section 145 of Cr.P.C stating that the petitioner is the sole owner of the land bearing survey Nos.455, 458, 487, 488, 518, 519 & 1324 situated at village Khera Shyampura circle Umari, District Bhind and he is in its possession. Respondent No.1 has illegally handed over the possession of the land bearing survey No.1364 area 0.250 hectare to respondents No.2 & 3 by executing the agreement dated 19.11.2009. It is alleged that in the backdrop of the agreement respondents No.2 & 3 have started keeping their cattle and bricks while crop of the petitioner is standing on the filed. It was prayed that respondents be directed not to raise any construction and to maintain status-quo. Learned SDM after hearing the parties directed the parties to maintain status-quo vide order dated 30.12.2009. It is further submitted that the learned SDM has disposed of the application of the petitioner vide order dated 19.08.2010 holding that the petitioner got partitioned the land from Tashil Court, against which the appeal is pending before the Additional Commissioner, Gwalior, in which stay has been granted. In such situation the partition has not attained finality and the land belongs to the joint khata. Therefore, it is not proper to proceed under Section 145 of Cr.P.C and thus, application has been dismissed holding the same being not maintainable and the stay order was also vacated. The petitioner preferred a revision petition before the learned IIIrd ASJ, Bhind, which has been dismissed holding that there is a stay from the Additional Commissioner Court, the proceeding under Section 145 of Cr.P.C are not maintainable.

(3.) It is submitted that the learned Court below has committed grave error in holding that the application under Section 145 of Cr.P.C., is not maintainable. The provision of Section 145 of Cr.P.C expressly provides that if there is likelihood of breach of peace due to land or water dispute proceeding can be started under this provision.