AHAD DAR Vs. MAQBOOL DAR

JUDGEMENT

(1.) THE inherent jurisdiction of this Court is sought to be invoked for quashing the order dated 21.9.2000 passed by Tehsildar, Executive Magistrate Anantnag (Annexure 'D'), 2. Order dated 29.4.2000 passed by the Session Judge Anantnag (Annexure 'E'), 3. Order dated 11th July, 2000 passed by Session Judge Anantnag (Annexure 'G'), 4. Order dated 5.8.2000 passed by the District Magistrate Anantnag, (Annexure 'H') and recalling of the order dated 29.5.2000 passed by this Court in Cr. Ref. No. 04/2000 inter alia on the ground that this amounts to abuse of the process of court.

(2.) THE facts of the case relevant for appreciating the controversy are that petitioner Ahad Dar has instituted a suit for declaration that adoption deed dated 28.7.1984 executed by father of petitioner in favour of respondent No. 2 was nullity. This suit is pending disposal in the Court of Munsiff, Judicial Magistrate Anantnag. While rejecting the application for interim relief prayed by the plaintiff, the Munsiff Anantnag vide order dated 31.12.1998 directed the parties to maintain status -quo with regard to the suit property. By the same order the trial court declined to stay the execution of adoption deed dated 12.8.1984 though this document was already registered but it appears that its effect was not given in the revenue records because of the stay order. However, the plaint does not describe the property in respect of which status -quo order was passed. Subsequently, on the application of the petitioner, the Tehsildar Executive Magistrate passed order dated 28.6.1999 initiating proceeding Under Section 141 and also attached the land described therein. These proceedings were dropped by the Tehsildar vide order dated 21.9.1999 passed on the application of the second party in the proceedings. The petitioner sought review of the order dated 21.9.1999 and the Tehsildar vide order dated 29.9.1999 sought permission of the District Magistrate to review his order dated 21.9.1999. This order was challenged by the second party before the Session Judge Anantnag, who allowed the revision vide order dated 29.4.2000 and made a reference to this Court for quashing the order passed by the Tehsildar on 29.9.1999. The reference was accepted by this Court vide order dated 29.4.2000.

(3.) THE contention of Mr. Attar is that the proceedings were dropped by the Executive Magistrate on the assumption that a civil suit in respect of the same property is pending disposal in a court of competent jurisdiction and interim injunction was subsisting, which according to the Ld. Counsel is not a fact because there was no interim injunction in respect of the disputed property because the suit was not in respect of the possession of the disputed land but only with respect to the validity of the adoption deed made by his father. This aspect of the case, it is argued was lost sight by the Executive Magistrate, as this is not the correct approach. Moreover, status -quo order without determining the factum of possession and that too with regard to the property which is not specified, argued the Ld. Counsel could not be a ground to drop the proceeding because such an order in facts gives rise to a dispute between the parties when both starts claiming possession. In such circumstances proceedings Under Section 144 Cr.P.C is the only course which can come in the aid of the civil court. The fact that non -petitioners were out of possession according to the Ld. counsel find support from the application, they made to the Session Judge seeking police assistance to enable them to plant paddy. It further supports the initial conclusion of the Executive Magistrate, that there was a likelihood of breach of piece in respect of the land between the parties to justify drawing of preliminary order.