Shivpal Singh vs Charan Devi And 5 Others
2019 Latest Caselaw 2883 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgement Reserved
 
Court No. - 32
 
Case :- WRIT - C No. - 1705 of 2019
 
Petitioner :- Shivpal Singh
 
Respondent :- Charan Devi And 5 Others
 
Counsel for Petitioner :- Shiv Bahadur Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Shashi Kant Gupta,J.

Hon'ble Pradeep Kumar Srivastava,J.

(Delivered by Hon'ble Pradeep Kumar Srivastava,J)

Heard Sri Shiv Bahadur Singh, learned counsel for the petitioner, Sri Vijay Gopal, learned Standing Counsel appearing on behalf of the State and perused the record.

This petition has been filed with the following prayer:-

"(i) issue mandamus directing the S.S.P. Agra-Respondent no. 4 to enquire into the allegation and if the same as found with substance, the necessary action be taken against the guilty.

(ii) Direct the S.S.P. Agra to restore to possession of petitioner as was ante to 08.01.2019.

(iii) issue any other suitable order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

(iv) Award the cost of the petition to petitioners."

The petitioner has stated that one Vishram was the owner of house no. 13A/755/1 (hereinafter referred as disputed house) is situated at Firozabad Road, Agra. Vishram was owner in possession of the disputed house during his life time and thereafter, Bengali Babu inherited the disputed house as his son. Bengali Babu executed a will deed in favour of Savitri Devi wife of Lakhan in the year 1996 and after her death on 09.12.2014, the petitioner who is the grand son of Savitri Devi was residing in the disputed house. The house was assessed in the name of Savitri Devi, however, the respondent no. 1 to 3 started claiming their rights in the disputed house. when they did not succeed in their evil design, respondent no 3 approached SHO of PS Etmaddaula, District Agra who called the petitioner to police station and on 18.12.2018 he obtained forcibly his signature on an application, mentioning him to be tenant, that he shall vacate the said house by 18.12.2018. Immediately thereafter, on 19.12.2018, petitioner filed a civil suit O.S. No. 1406 of 2018 before Civil Judge (S.D.) seeking relief of permanent injunction, in which notice were issued to respondent No. 1, 2 and 3 on the same day and Amin report was called. The respondent no. 3 with police deputed by SHO came over the disputed house on 08.01.2019 and wife of the petitioner's brother who was in the disputed house was forcibly dispossessed from it, her house hold was thrown out, the main door was locked and the disputed house was forcibly vacated. A complaint was filed before the SSP, Agra on 09.01.2019.

The police got the house forcibly vacated without any authority of law knowing the fact that the civil proceedings with regard to same is pending. The act of the police is wholly illegal and without any authority of law and is violative of Article 14 and 21 of the Constitution of India and therefore, this writ petition was filed.

The copy of OS No. 1406 of 2018 has been annexed stating the pedigree of Vishram and the petitioner has claimed the disputed house through Savitri Devi in whose favour will was allegedly executed by Bengali Babu son of Vishram.

Respondent No. 4 and 5 separately filed their counter affidavit and supplementary counter affidavit and vice- versa from the petitioner side rejoinder and supplementary affidavits have been filed.

The petitioner has claimed that Bengali Babu son of Vishram executed will deed of the disputed house in favour of Smt. Savitri Devi. The will is not registered and it was alleged to have been executed on 06.09.1996.

In IInd supplementary affidavit filed by the petitioner on 26.02.2019, it has been stated that Smt. Savitri Devi was looking after Bengali Babu since 1990 until he died in the year 2010 as his first cousin and she was living with him since 1985. Smt. Charan Devi wife of Bengali who is respondent no. 1 was not happy with Smt. Savitri Devi and she always wanted her to leave the house but on refusal by Bengali, Charan Devi left the company of her husband and lived separately in the disputed house since 1990.

In the mean time, Bengali Ram executed a will on 06.06.1996 of about 100 yards of vacant land from Khasra no. 2551 having an area of 400 sq. yards mentioning specific boundary of the portion of said plot. The will was notarised and under section 8(1)(a) of Notarises Act, 1952 a notary certificate was recorded on the leaf of the certificate. As such the same is also admissible in evidence and on the basis thereof land /house was mutated in the name of Smt. Savitri Devi.

Knowing the fact that petitioner had constructed the house over the same and was residing immediately after the death of Bengali, Smt. Charan Devi sold the same piece of land with similar boundary to one Raj Kumar by sale deed dated 06.01.2011. Smt. Charan Devi has no concern with the disputed property at all.

When the wife of the brother of the petitioner was forcibly dispossessed from the disputed house, the petitioner filed an application under section 156(3) Cr.P.C. before Special Judge, Agra on 15.01.2019 which is still pending in the court. Apparently, the real owner of the disputed land / house is not coming forward but on instance of her relative and people of her maika, Smt. Charan Devi made a plan with the help of police to grab the said land concealing the material facts.

The counter affidavit filed separately by respondent No. 4 and 5 contains that the petitioner is real brother of Dharamveer Singh, who is an Advocate, practising in District Firozabad. The property in dispute as has been claimed by the petitioner, belongs to him on the basis of a will executed in favour of one Savitri Devi, W/o Lakhan in the year 1996. Petitioner is grandson of Savitri Devi and therefore, he claims right over the property in dispute. On the other hand, Charan Devi is a widow and old lady aged about 70 years whose husband is no more, she has no issue and is residing in the same disputed house. She is very poor lady who is living in her old age in the disputed house and her only source of income for livelihood is a small tea shop running in small Khoka (gumti) in front of her house. The petitioner's brother is an Advocate and the entire case as has been set up in the writ petition is with intention to grab the property of that old widow Charan Devi on the basis of an unregistered will.

Since the petitioner by the help of Advocate brother Dharmveer wants to grab the property of respondent no. 1 Smt. Charan Devi by all means and therefore, the petitioner makes allegations against everybody whosoever tries to help the poor lady including police and the tenants residing around the disputed house. Charan Devi made several complaints to the police against the petitioner and his brother, on the basis of which police registered NCR No. 11/19 dated 07.01.2019 against the brother of the petitioner Dharamveer and his wife and thereafter sent a report to initiate proceedings under section 107/116, Cr.P.C. When the petitioner did not succeeded in grabing the property of Charan Devi, he through his friend Munesh Kumar filed a complaint under section 156(3) Cr.P.C. against Charan Devi making certain allegations against poor old lady and the petitioner was witness in the said complaint. That complaint was rejected by the Additional Session Judge, Agra making certain observations against the complainant.

Respondent No. 4 and 5 have said that the police has noting to do with the civil dispute between the petitioner and respondent and the only concern of the police regarding disputed house is to maintain the law and order. The allegation in the writ petition have been emphatically denied by the respondent No. 4 and by submitting that on complaint of the petitioner dated 09.01.2019 an enquiry was also made on the instruction of SSP, Agra by SI Nitya Nand Pandey and a report was submitted that allegation of the complaint dated 09.01.2019 are incorrect. There is dispute between the petitioner and the respondents in respect of disputed house and on 08.01.2019, there was a quarrel between both sides and a complaint was made on the same day on Dial 100 at 08:05 AM and 08:25 AM. After receiving complaints on Dial 100, the police went on the spot and returned after maintaining peace on spot. The allegation that police dispossessed the petitioner has been emphatically denied by respondent No. 4 and 5.

Certain Facts

1. It is admitted fact that Smt. Charan Devi is wife of Bengali and the said Savitri Devi in favour of whom the alleged will deed has been executed allegedly in 1996 is not a member of the family of Bengali, nor petitioner belonged to pedigree of Bengali and Vishram.

2. About the disputed house, a civil suit is already pending. The allegation of the petitioner is that he has been forcibly dispossessed with the help of police which has been denied by the respondent No. 4 and 5, therefore, the fact of forceful dispossession from the disputed house becomes a disputed fact and naturally, this aspect will be looked into by the civil court in the pending suit.

3. The photo-estate copy of the plaint of OS No. 1406 of 2018 Shivpal Singh Vs. Smt. Charan Devi filed in the court of Civil Judge (Senior Division), Agra on 19.12.2018 by the petitioner/plaintiff in which Sri Dharamveer Singh, his brother has been shown to be Advocate has been attached with this petition by the petitioner. This is a first version with regard to disputed property in a legal proceeding. We find that date of will has not been mentioned in para 2 and place for it was left blank.

4. It has no where been mentioned in the plaint that Smt. Savitri was cousin of Bengali.

5. In para 5 of plaint it has been written by pen that will was executed 35 years before whereas the plaint is typed written.

6. A signed application is on record in which the petitioner has promised to give up the possession of the disputed house in which he was simply a tenant. On that application, his Advocate brother and one witness have also signed. The said application is of 18.07.2018. The allegation that he was forced to sign over it cannot be determined in this petition. Then, it has to be seen why not any legal recourse was taken by the petitioner immediately?

7. In the order of interim injunction by which notice has been issued by the learned Civil Judge, it has been mentioned that the alleged will of Savitri Devi was not filed before the court.

8. It has been also no where mentioned in the plaint that in the life time of Bengali, his wife Charan Devi started living separately in the disputed house.

9. The will deed was never disclosed in the life time of Bengali nor in the life time of Savitri Devi. No course was adopted by petitioner side to get the will deed registered in the life time of Bengali though he died in 2010 as stated in III supplementary affidavit of the petitioner filed on 26.02.2019.

10. No where it has been mentioned in plaint that subsequent to will deed the disputed house was constructed by petitioner as alleged in IIIrd supplementary affidavit. It looks unbelievable and self-contradictory, as admittedly, it was an ancestral house and Bengali Babu with his family were living in the disputed house from the time of Vishram and there appears to be no occasion nor it has been stated in plaint how and when the house was constructed and whether constructed after death of Bengali.

A suit for permanent injunction is pending in civil court in which the genuineness of the will and petitioners entitlement over the disputed house has to be determined, being a disputed fact on the basis of evidence led by the parties. Therefore, we are avoiding any adverse observation in respect of the unregistered will deed alleged by the petitioner which was though in his possession but never disclosed to any body in the life time of Bengali Babu. If the petitioner has been forcefully dispossessed during the pendency of the civil suit, the right way is to make amendment in the plaint and claim relief of possession of the disputed house. In our view this fact is also a disputed question which can only be decided when the parties will give their evidence in the civil suit.

It may be noted that this Court in Writ Petition No. 50033 of 2015 (Jitendra Bahadur Singh Vs. State of U.P. And others) has held that the police and administrative authority must not interfere in inter se dispute between the two private parties in respect of immovable properties. It is also noteworthy that State Government in pursuance thereof has already issued a G.O. on 01.12.2014 and subsequently on 16.09.2015.

On the basis of above discussion, we find that the matter involves a civil cause and the petitioner has already taken recourse to alternative remedy of instituting a civil suit in respect of disputed house prior to filing of this writ petition. we do not find any justifiable ground to invoke our jurisdiction under Article 226 of the Constitution of India.

In view of the above, this writ petition has got no force and is accordingly dismissed.

 
Order Date :- 12.04.2019
 
Bhanu
 

 
	(Pradeep Kumar Srivastava, J)	   (Shashi Kant Gupta, J.)