Harish Kumar vs State Of U.P. Thru S.D.M. & 2 Others
2017 Latest Caselaw 2421 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 43
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 13406 of 2017
 
Petitioner :- Harish Kumar
 
Respondent :- State Of U.P. Thru S.D.M. & 2 Others
 
Counsel for Petitioner :- Bakhteyar Yusuf
 
Counsel for Respondent :- G.A.,Vivek Kumar Singh
 

 
Hon'ble Karuna Nand Bajpayee,J.

This criminal writ petition has been filed on behalf of petitioner seeking the quashing of impugned orders dated 9.5.2017 and 18.5.2017 passed by the Sub-Divisional Magistrate, Sadar, Muzaffar Nagar in Case No.14/2017 (Mukesh Kumar vs. Jai Singh) relating to the proceeding u/s 145/146 of Cr.P.C. and also seeking direction to the respondent no.1 for passing fresh order after impleading the petitioner as party to the proceeding in question.

Power filed today by Mr. Kshitij Shailendra, Advocate on behalf of respondent no.3 is taken on record.

Heard Mr. Bakhteyar Yusuf, learned counsel for petitioner, Mr. Kshitij Shailendra, learned counsel for respondent no.3 and learned A.G.A. for the State and perused the record.

The counsel for respondent no.3 has also placed on record one order dated 20.12.2016 and 14.2.2017 passed by this Court in Application u/s 482 Cr.P.C. No.31915 of 2008 (Jay Singh and others vs. State of U.P. and others) relating to the proceedings in question, one order dated 22.01.2015 passed by this court in Writ -B No.2457 of 2014 (Smt. Gyaneshwari vs. Board of Revenue Lko and others) and one case-law Shakuntala Devi vs. The District Judge, Jaunpur, 1996(28) ALR 103.

Brief facts of the case as emerge from the record are that respondent no.3 Mukesh Kumar preferred an application before Sub-Divisional Magistrate, Sadar, Muzaffar Nagar u/s 145 Cr.P.C. with regard to the land of Khasra No.566/1, 566/3 and 78/2 stating therein that Mukesh Kumar had purchased the said land from legal heirs of Shri Vidya Bhushan and his son Shri Deepak Bhushan through registered sale deed and is having possession over said land which is situated in Village Vilaspur, District Muzaffar Nagar with further assertions in the application that one Jai Singh claimed ownership of said land on the basis of forged document with the help of his two sons namely Ashok Kumar and Dharmendra and serious threats were being extended by them. Upon which the Sub-Divisional Magistrate, Sadar, Muzaffar Nagar called a report from Police Station-Nai Mandi which was submitted on 10.10.2008 and a case bearing number 16/2008 was registered u/s 145(1) and 146(1) of Cr.P.C. by attaching the property and issuing notice vide order dated 17.10.2008 passed by the Sub-Divisional Magistrate, Sadar, Muzaffar Nagar. It transpires from the record that aunt of petitioner namely Smt. Gyaneshwari Devi w/o late Vidya Bhushan submitted an application on 24.2.2008 in the proceedings of Case No.16/2008 for her impleadment in the case on the ground that she is having possession over the aforesaid land and crops standing there upon and Shri Deepak Bhushan s/o late vidya Bhushan and his wife Smt. Shalini Mittal were the bhumidhar of the land in question, who both died in year 1993 and 1994 respectively and being sole legal heir and mother of Shri Deepak Bhushan, Smt. Gyaneshwari Devi is the necessary party in the proceeding of Case No.16/2008. It further transpires from the record that during the proceeding of aforesaid Case No.16/2008 the aunt of petitioner expired on 29.6.2016 and during her life time, she executed a registered will in favour of petitioner on 24.9.2011 with regard to her entire movable and immovable properties and after the death of Smt. Gyaneshwari Devi, the present petitioner started pursuing the aforesaid proceeding with the claim of ownership of property in question apart from the other movable and immovable properties of the deceased lady and in continuation thereof, the petitioner also made an application dated 6.4.2017 in the proceeding of Case No.16/2008 to get himself impleaded in the proceeding of the case. The said impleadment application dated 6.4.2017 was rejected by the Sub-Divisional Magistrate, Sadar, Muzaffar Nagar vide order dated 9.5.2017 and on 15.5.2017, the petitioner made one another application with the assertion that Jai Singh and Mukesh Kumar are trying to grab the property in question on the basis of forged unregistered sale deed and as such the petitioner is a necessary party being owner of the property in question and earlier order dated 9.5.2017 is liable to be recalled, as the petitioner was not heard while passing earlier order dated 9.5.2017. Application dated 15.5.2017 too was rejected vide order dated 18.5.2017 and against both the aforesaid orders dated 9.5.2017 and 18.5.2017, the petitioner has preferred the present criminal misc. writ petition with a prayer to quash the same and also seeking direction to the Sub-Divisional Magistrate, Sadar, Muzaffar Nagar respondent no.1 for passing fresh order after impleading the petitioner as party to the proceeding in question.

Submission on behalf of petitioner is that he is the owner of property in question involved under the proceedings of Section-145 Cr.P.C. as he is holding a registered will of late Gyaneshwari Devi who was the only legal heir of late Vidya Bhushan, late Deepak Bhushan and late Shalini Mittal w/o late Deepak Bhushan and even the certificate of legal heir was also issued in favour of Smt. Gyaneshwari Devi by the Sub-Divisional Magistrate, Sadar, Muzaffar Nagar on 17.06.2009 and on that very basis Smt. Gyaneshwari Devi executed the registered will on 24.9.2011 in favour of petitioner regarding her entire movable and immovable properties including the property in question which is being claimed to be purchased by respondent nos.2 and 3 from Sandeep Goyal and Radhika Goyal on the basis of one forged and fabricated unregistered will allegedly executed by late Deepak Bhushan and Shalini Mittal in favour of Radhika Goyal and Sandeep Goyal. Submission is that late Gyaneshwari Devi had also lodged a Crl. Case No.457/2012, u/s 420, 467, 468, 471 I.P.C. in respect of said forged, fabricated and unregistered will deed in which the local police has even submitted charge sheet. Further submission is that one civil suit being Original Suit No.725/2012 was also filed by late Gyaneshwari Devi during her life time against Mukesh Kumar and Jai Singh, proceeding of which is going on and in said civil suit also, the petitioner submitted application for his impleadment in civil suit as application No.86Ka under Order-22 Rule-3 and Order-6 Rule-17 and Section-151 C.P.C. with similar claim of ownership and possession on the basis of registered will deed and the said application in civil suit has been allowed vide order dated 30.3.2017 passed by the Civil Judge (Senior Division), Fast track Court, Muzaffar Nagar in Original suit No.725 of 2012. Further submission is that petitioner is the necessary party even in the proceedings u/s 145 and 146 Cr.P.C. but the court of Sub-Divisional Magistrate, Sadar, Muzaffar Nagar has committed error while rejecting applications of petitioner for impleadment in the proceeding of 145/146 Cr.P.C., which are quasi civil and quasi criminal proceedings and hence both the impugned orders are liable to be set aside and petitioner is liable to be impleaded in said proceedings.

On the other hand, learned counsel for respondent no.3 has opposed the submissions made on behalf of petitioner and has submitted that in view of the orders dated 22.01.2015 and 14.2.2017 passed by this Court in earlier litigations, as well as in view of the observations made by the single bench of this Court in the case of Shakuntala Devi (supra), petitioner is not entitled to be impleaded in the proceedings u/s 145 and 146 Cr.P.C., being third party to such proceedings. Submission is that petitioner has every occasion to establish his right and ownership in the pending civil suit and the outcome of proceedings u/s 145 and 146 Cr.P.C. are not binding for such claim of ownership raised by the petitioner as the proceedings in question relate only to the issue of possession of the property in question.

In the light of rival submissions and record placed before the Court, the sole controversy gets spells out as to whether the present petitioner who claims himself to be the owner of property in dispute on the basis of registered will of Smt. Gyaneshwari Devi is entitled to be impleaded in the proceedings u/s 145 of Cr.P.C. or not. In this regard, it may be seen that there are two rival claims with regard to the ownership of property in dispute, wherein at one hand, the petitioner claims ownership on the basis of registered will executed by Smt. Gyaneshwari Devi in his favour on 24.9.2011 with regard to her entire movable and immovable properties, whereas on the other hand the respondent nos.2 and 3 are claiming ownership of property in dispute on the basis of sale deed executed by Radhika Goel and Sandeep Goel who claimed their ownership on the basis of one unregistered will allegedly executed by late Deepak Bhushan and late Shalini Mittal in their favour. Said late Deepak Bhushan and late Shalini Mittal were son and daughter-in-law of late Gyaneshwari Devi and had died prior to the demise of late Gyaneshwari Devi and it has come on record that one Original Suit No.725/2012 was also filed by late Gyaneshwari Devi during her life time against respondent nos.2 and 3 with specific plea that the will-deed in favour of Radhika Goel and Sandeep Goel, from whom respondent nos.2 and 3 claim to have purchased property in question through registered sale deed, is forged, fabricated and unregistered will-deed and as such, they cannot claim ownership over the property in dispute. It has also come on record that after demise of late Gyaneshwari Devi, the petitioner filed one impleadment application in Original Suit No.75/2012 to get himself impleaded in place of late Gyaneshwari Devi which has been allowed vide order dated 30.3.2017 passed by learned Civil Judge, Fast Track Court, Muzaffar Nagar. It has also come on record that the proceeding u/s 145 of Cr.P.C. was initiated by respondent no.3 by making allegations against respondent no.2 in respect of possession of property in dispute and late Gyaneshwari Devi was not made party to the proceeding u/s 145 of Cr.P.C. and when late Gyaneshwari Devi came to know about such proceeding, she made application on 24.10.2008 for her impleadment in said proceeding u/s 145 of Cr.P.C. with a claim that she is having possession over the aforesaid land in question and the crops are standing over there. It may also be useful to record that the said application for impleadment moved by late Gyaneshwari Devi was pending and was not decided during the proceeding u/s 145 of Cr.P.C. till the demise of late Gyaneshwari Devi and in between that she also filed Original Suit No.75/2012 as noted above and when she died the petitioner with the strength of registered will deed in his favour started pursuing the proceedings u/s 145 of Cr.P.C. as well as the proceeding of Original suit No.75/2012, in which the petitioner got success in getting himself impleaded in Original Suit No.75/2012, however, his effort in getting himself impleaded in proceeding u/s 145 of Cr.P.C. failed in view of the impugned orders dated 3.5.2017, 9.5.2017 and 18.5.2017.

There is hardly any dispute to the proposition of law that the proceedings u/s 145 of Cr.P.C. are summary proceedings and are quasi civil-quasi criminal proceedings and are subject to the final outcome of competent court determining the rights of parties thereto with regard to the person entitled for posession thereof as has been provided u/s 146(1) of Cr.P.C. In this regard the case law of Shanti Kumar Panda v. Shakuntala Devi, AIR 2004 SC 115 can be usefully referred, wherein Supreme Court has observed in its paragraph no.10 as follows :

"10. Possession is nine points in law. One purpose of the enforcement of the laws is to maintain peace and order in society. The disputes relating to property should be settled in a civilized manner by having recourse to law and not by taking the law in own hands by members of society. A dispute relating to any land etc. as defined in sub-section (2) of S. 145 having arisen, causing a likelihood of a breach of the peace, S. 145 of the Code authorises the Executive Magistrate to take cognizance of the dispute and settle the same by holding an enquiry into possession as distinguished from right to possession or title. The proceedings under Ss. 145/146 of the Code have been held to be quasi-civil, quasi-criminal in nature or an executive on police action. The purpose of the provisions is to provide a speedy and summary remedy so as to prevent a breach of the peace by submitting the dispute to the Executive Magistrate for resolution as between the parties disputing the question of possession over the property. The Magistrate having taken cognizance of the dispute would confine himself to ascertaining which of the disputing parties was in possession by reference to the date of the preliminary order or within two months next before the said date, as referred to in proviso to sub-section (4) of S. 145, and maintain the status quo as to possession until the entitlement to possession was determined by a Court, having competence to enter into adjudication of civil rights, which an Executive Magistrate cannot. The Executive Magistrate would not take cognizance of the dispute if it is referable only to ownership or right to possession and is not over possession simpliciter; so also the Executive Magistrate would refuse to interfere if there is no likelihood of breach of the peace or if the likelihood of breach of peace though existed at a previous point of time, had ceased to exist by the time he was called upon to pronounce the final order so far as he was concerned."

There is also no dispute with the position of law that the order that may be passed during the proceedings u/s 145/146 of Cr.P.C. will not be binding on the petitioner, as he is not party to the said proceedings. However, the controversy in question is quite different from the aforesaid undisputed position of law as the petitioner is claiming his entitlement to get himself impleaded in the proceedings u/s 145/146 of Cr.P.C. on the strength of claim of ownership and possession based upon registered will deed in his favour. One cannot dispute that a reasonable claim about the ownership over any property is directly and inherently connected with the claim of possession of such property and one cannot loose sight of the apprehended harassment of any actual owner of such property, in respect of which two other persons might have raised their dispute about the possession of such property, by means of proceedings u/s 145/146 of Cr.P.C. in order to deceitfully damage such another third person who also seriously claims ownership over the property in dispute. It would also be quite unreasonable to say that such third person seriously claiming ownership over the property in dispute should not intervene into the proceedings u/s 145/146 of Cr.P.C. pending between two other persons for the same property in dispute and should be asked to pursue only the remedy provided in the form of proceedings of civil suit.

The case law of Shakuntala Devi (supra) cited by the counsel for respondent no.3 is clearly distinguishable in view of the fact that in that case the petitioner challenged that order before this Court under Article 226 of the Constitution of India, which was passed by lower appellate court against him in miscellaneous appeal preferred by his rival party against the interim injunction order granted in his favour in original suit and the lower appellate court, while setting aside the interim injunction order granted in favour of petitioner, proceeded on the premise that by reason of an order passed in proceedings u/s 145 of Cr.P.C., the petitioner in that case was not in possession and was not entitled to get interim injunction in his favour. While judging the merit of order passed in miscellaneous appeal, this Court came to the rescue of petitioner of that case and set aside the order passed by the lower appellate court in miscellaneous appeal. While doing so, this Court observed in paragraph no.8 as follows :

"8. Admittedly an order passed in proceedings under Section 145 Cr.P.C. is subject to the decision that might be passed in the civil suit and there is no second opinion with regard thereto. In the present case, the petitioner/plaintiff is admittedly not a party to the said proceeding. An order that might have been passed in respect of self same property, the same shall not bind the petitioner if she is not a party to the said proceeding. Therefore, she can establish and espouse her cause in the suit despite an order under Section-145 Cr.P.C. in which the petitioner was not a party. Admittedly the brother of the petitioner is not the owner of the property."

In complete agreement with the above noted proposition of law, this Court has no hesitation to record that said observation of this Court in the case of Shakuntala Devi (supra) does not give any benefit to the respondent no.3 in the present case inasmuch as the court was neither dealing with the controversy involved in the present case nor has laid down any proposition that a person who is seriously claiming possession and ownership of the property in dispute and is not party to the proceeding u/s 145/146 of Cr.P.C. is not entitled to be impleaded in such proceeding u/s 145/146 of Cr.P.C. Even the order dated 20.12.2016/14.2.2017 (reserved on 20.12.2016 and delivered on 14.2.2017) passed by this Court in an Application u/s 482 of Cr.P.C. No.31915 of 2008 (Jay Singh and others vs. State of U.P. and others) wherein the present respondent no.2 was one of the applicants and the present respondent no.3 was opposite party no.3 therein, does not come in the way of petitioner of present case despite having direction for expeditious disposal of proceedings u/s 145/146 of Cr.P.C. preferably within a period of three months from the date of production of a certified copy of this order, inasmuch as the same was passed without hearing the present petitioner and there was no question involved therein as is being adjudicated by this Court in the present case. The said order dated 20.12.2016/14.2.2017 does not mean to issue direction to the Sub Divisional Magistrate to decide the proceedings without dealing with all the relevant issues including the issue raised by petitioner about his impleadment and as such the said order dated 20.12.2016/14.2.2017 is required to be seen in the perspective of controversy in question.

Likewise, the order dated 22.01.2015 passed by this Court in Writ-B No.2457 of 2015 (Smt. Gyaneshwari vs. Board of Revenue Lko. and others) also relates to the proceeding u/s 34 of U.P. Land Revenue Act, which has a different colour in comparison to the proceeding in question and also the controversy being dealt with by this Court in the present case.

This Court in the case of Subhash Chand Gupta and another v. Krishan Pal and others, 2007 (2) JIC 196 was dealing with similar type of controversy, wherein persons who were not party to the proceedings u/s 145/146 Cr.P.C., had moved impleadment applications being third party on the ground that they were in actual possession but were not impleaded as party. Those applications were objected by the first party to that proceeding on the ground of lack of locus standi and the learned Magistrate rejected the applications of third party against which said third party preferred criminal revision before this Court which was allowed and the order of Magistrate was set aside and the observation made by this Court in its paragraph 7 was as follows :

"7. The question whether those persons who have filed application for being impleaded in the proceeding under Section 145 Cr.P.C. should be permitted to be impleaded as such or not, depends upon interpretation of the words "parties concerned in such dispute" appearing in Section 145 (1) Cr.P.C. This question of impleadment of other persons who moved application for their impleadment as parties in the case under Section 145 Cr.P.C. was considered by this Court in the case of Ganga Singh v. Mohd. Shah Khan, 1976 Crl. L.J. 357, and it was laid down by this Court that where the Magistrate after issuance of the preliminary order, gets information that some other person to whom the order was not originally directed is also concerned in the dispute, the impleading of such a person as a party cannot be said to be beyond the jurisdiction of the Magistrate. The impleadment cannot be deemed to have changed the nature or character of the preliminary order. Further, it is also in the interest of justice and necessary for avoiding multiplicity of proceedings to let every person who claims to be concerned in the dispute to have an opportunity to put forward his claim. Mere delay in applying for impleadment cannot be a ground to refuse impleadment."

In the considered opinion of this Court there cannot be any iota of doubt that any person who seriously claims himself to be the owner in possession of any property and finds that there is one proceeding u/s 145/146 of Cr.P.C. pending in respect of same and similar property between two other persons, he may seek opportunity to intervene into such proceeding u/s 145/146 of Cr.P.C. in order to demonstrate any additional or supplemental facts which might be otherwise to the facts being stated by such two different persons and the Magistrate is obliged to consider as to whether such person is a person seriously interested in property under dispute. The Sub Divisional Magistrate, Sadar, Muzaffar Nagar vide impugned orders dated 9.5.2017 and 18.5.2017 has not dealt with crucial aspect that the petitioner has been impleaded in original suit No.725 of 2012 in place of its plaintiff late Gyaneshwari Devi who herself had filed impleadment application in the proceedings u/s 145/146 of Cr.P.C. with a specific claim of not only ownership but of being in possession over the property in question. The court below appears to have been swept off its feet and got more influenced with the direction issued by this Court in its order dated 20.12.2016/14.2.2017 for expeditious disposal of proceedings within a period of three months than the actual merit of of the claim of petitioner and as such, the impugned orders dated 9.5.2017 and 18.5.2017 are liable to be set aside.

In view of the aforesaid facts and circumstances of the case, the impugned orders dated 9.5.2017 and 18.5.2017 are hereby set aside and the Sub Divisional Magistrate, Sadar, Muzaffar Nagar is directed to permit the petitioner to be impleaded in the proceedings of Case No.14 of 2017 (Mukesh Kumar vs. Jai Singh) and to decide the proceedings expeditiously preferably within a period of six months from the date of production of a certified copy of this order after giving due opportunity to the parties to the case including the present petitioner.

With the aforesaid observations the writ petition stands allowed.

Order Date :- 17.7.2017

M. Kumar