M D SAFIQUE ALI Vs. SURJAN BIBI

JUDGEMENT

(1.) This is an application under Art. 227 of the Constitution of India read with Section 482 of Cr.P.C. for quashing the order dated 26-3-2003 passed by the learned Sessions Judge, North Tripura, Kailashahar in Cri. Revision No. 3(1) of 2003 affirming the order dated 14-2-2003 passed by the learned Sub Divisional Magistrate , Kailashahar, North Tripura, in Misc. Case No. 3/2003 under Section 145 of Cr.P.C.

(2.) The facts as unfolded from the pleadings of the parties may be briefly stated as follows : The petitioner claims that he purchased the homestead land measuring 0'53 acres pertaining to Khatian No. 185, C.S. Plot No. 434 (Old) corresponding to new C.S. No. 453, situated within Mouja Bhagabannagar, Tehasil Kailashahar, North Tripura (hereinafter called 'the D/L' for short) from one Sri Paresh Ranjan Roy by a registered Sale Deed No. 1-1151 executed on 2-7-2001. The petitioner also claims that the said Sri Paresh Ranjan Roy had purchased the D/L from one Subhash Ch. Dhar by a registered Kabala No. 247/1956 on 20-8-1956. It is further claimed by the petitioner that the said Subhash Ch. Dhar purchased the D/L from Riyaj Ullah and Tahir Miah of Bhagabannagar Kailashahar vide registered Kabala No. 247/1956, executed on 20-8- 1956. The petitioner states that by virtue of the said purchase he has exclusive right, title and interest to as well as possession of the D/L and that at the time of his purchase the D/L was null in character. It is the further case of the petitioner that after purchasing the D/L, he developed the same by making it homestead and started construction thereon. He further states that he had already constructed three rooms building having double storied foundation on the D/L and the said contribution is in the mid way. In the course of construction, he has incurred an expenditure of Rs. l,00,000/- 1185 so far. The petitioner also states that that the respondent herein along with her two sons instituted a civil suit being Title Suit No. 21/2001 before the learned Civil Judge (Junior Division), Kailashahar, North Tripura against him for declaration of title and other reliefs in respect of the same D/L, which is still pending. It is the case of the petitioner that the respondent and her son Junab Ali and one Mushahid Ali had tried to dispossess the petitioner of the said land in the month of Nov. 2002, which prompted him to initiate a proceeding under Section 144, of Cr.P.C. before the learned Sub-Divisional Magistrate, Kailashahar, North Tripura (hereinafter called 'Ld. SDM' for short). The Ld. SDM by the order dated 19- 11-2002 in the case No. 6(M)/2000 issued under Section 144(1), Cr.P.C. restrained the said Junab Ali and Quatab Ali from entering into the D/L and also fixed 27-11-2002 for filing of objection, if any, by the said Junab Ali and Qutab Ali. The further case of the petitioner is that the respondent herein lodged a written complaint against him in respect of the D/L before the Ld. SDM alleging that the petitioner along with others have been trying to 'dispossess her of the D/L thereby apprehending breach of peace between the parties and claiming that unless the petitioner and his party were restrained, there would be serious breach of peace on the D/L. On the basis of this complaint, the Ld. SDM drew up a proceeding under Section 145 of Cr.P.C. against the petitioner bearing Case No. Misc. 3/2003 and directed both the parties to appear before him and to submit written statement, evidence etc. in support of their respective claim as respects the fact of actual possession of the subject of dispute. The Ld. SDM also in the same order came to the conclusion that the case was one of emergency and unless both the parties are restrained from entering into the land till the conclusion of the proceeding since peace and tranquillity might be affected in that locality. Accordingly, he passed an order under Section 146(1) of Cr.P.C. restraining both the parties from entering into the disputed land till conclusion of the proceeding. The Ld. SDM also directed the O/C, Kailashahar P.S. to execute the order. Being aggrieved by the order of the Ld.SDM, the petitioner approached the learned Sessions Judge, North Tripura, 2004 Cri. L.J./75 III Kailashahar by way of revision petition, which was registered as Criminal Revision No.3(l)/2003. The learned Sessions Judge by the order dated 26-3-2003 disposed of the revision petition declining to interfere with the order passed-by the Ld.SDM. The learned Sessions Judge while disposing of the revision petition observed that no final decision was given by the Ld.SDM; the Ld.SDM did it with a view to maintain peace and tranquillity; the successful party might move the civil Court for appropriate relief after conclusion of the proceeding under Section 145 of Cr.P.C. and that the order passed by the Ld.SDM was not a concluded order. The learned Sessions Judge however, observed that in view of pendency of the civil suit between the parties, there was no scope for allowing the proceeding under Section 145 of Cr.P.C. to continue; whatsoever order passed by the Ld. SDM under Section 146(1) of Cr.P.C. was found to be just and proper and that there was no illegality and that the parties were directed not to enter into the suit land till disposal of the civil suit pending in respect of the same subject matter before the learned civil Judge (Junior Division), Kailashahar, North Tripura. The learned Sessions Judge also directed the learned Civil Judge (Junior Division) to dispose of the pending civil suit before him at an early date. It was with the aforesaid observation that the learned Sessions Judge disposed of the revision petition filed by the petitioner.

(3.) The case of the respondent as emerged from her written objection is that her husband, i.e. Riyaj Ullah had never sold the D/L to the said Subbash Ch. Dhar as alleged by the petitioner. She also denies that neither the said Subhash Ch. Dhar nor Paresh Ranjan Roy ever took possession of the D/L and claims that the subsequent purchase of the D/L by Paresh Ranjan Roy from Subhash Ch. Dhar and thence by the petitioner from the said Paresh Ranjan Roy are all the outcome of the fraudulent and fictitious Sale deed No. 247/1956 allegedly executed on 20-8-1956 by Tahir Mish, the husband of the respondent and another Riyaj Ullas. The respondent also claims that Riyaj Ullah never had any land at Bhagabannagar under Kailashahar P.S. It is the case of the respondent that she is a helpless old lady of 80 years and there is none to protect her with adequate security. She also claims that 1186 she had no knowledge of the sale deed dated 20-8-1956 and other subsequent deeds till 14-8-2001. It is the case of the respondent that taking advantage of the fraudulent sale deed, the petitioner and his party tried to forcibly dispossess her of the D/L.