Allahabad High Court
Jai Shankar Mishra And Others vs State Of U.P. Thru. Prin. Secy. ... on 9 August, 2023
Bench: Sangeeta Chandra, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:53007-DB
Court No. - 10
Case :- CRIMINAL MISC. WRIT PETITION No. - 6221 of 2023
Petitioner :- Jai Shankar Mishra And Others
Respondent :- State Of U.P. Thru. Prin. Secy. Home Civil Secrt. Govt. Of U.P. Lko. And Others
Counsel for Petitioner :- Tushar Gupta
Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Narendra Kumar Johari,J.
(1) Heard the learned counsel for the petitioners and the learned A.G.A. who appears for the Opposite party nos.1, 2, 3 & 4 and Shri Dilip Kumar Pandey, who appears on behalf of the Gaon Sabha, Village Shivpuri, Tehsil Dhaurhara, District Lakhimpur Kheri.
(2) This petition has been filed by the petitioners for the following main prayer:-
"1) Issue a writ, order or direction in the nature of Mandamus thereby commanding the Opposite parties especially Opposite party nos.3 and 4 to comply the order dated 18.12.1990 passed by the Opposite party no.2 and handover the land in question to the petitioners as contained as Annexure No.1 to this writ petition respectively."
(3) It has been submitted by the learned counsel for the petitioners that the petitioners are owners of the Abadi land in question which is contiguous house of the petitioners since longtime. Two persons namely Pyare Lal and Gopi Nath had filed a Suit for declaration of title over the land in question in the year 1985 before the learned Civil Court, bearing Suit No.350/1985 where two issues were framed by the learned Trial Court and both were decided against the plaintiffs and in favour of the predecessor in interest of the petitioners Late Bhagauti Prasad. Thereafter, two persons namely Pyare Lal and Gopi Nath tried to forcibly take over possession for which the petitioners filed a complaint which was dealt by the Magistrate concerned under Section 145 Cr.P.C. and an order was passed on 18.12.1990 directing the police to hand over the possession of the attached property to the predecessor in interest of the petitioners. The Civil Suit of Pyare Lal and Gopi Nath having been dismissed on 22.02.1988. Thereafter, they filed First Appeal and Second Appeal, both were also dismissed by this Court in 2003. An application for Review/ Recall application was filed which was dismissed in 2015. Copies of orders have been filed as Annexure nos.6 & 7 to the writ petition.
(4) It has been submitted that after dismissal of the Second Appeal, the petitioners moved several Representations to the Opposite party Nos.2 to 4 to hand over the land in question in compliance of the order passed by the Executive Magistrate on 18.12.1990 but the same has not been handed over to the petitioners.
(5) Learned counsel for the Gaon Sabha Shri Dilip Kumar Pandey, has pointed out from the judgment and order dated 22.02.1988 of the Fourth Additional Munsif Magistrate, Lakhimpur Kheri, that Gaon Sabha and the State Government were not made party in the said Suit for declaration by the plaintiffs. The plaintiffs had sought declaration and only two issues were framed, none of which issue related to non-impleadment of necessary party and whether the Gaon Sabha was the actual owner, therefore, the judgment and order dated 22.02.1988 cannot be said to be applicable in Gaon Sabha which was not a party to the said Suit. The Suit having been dismissed against the plaintiffs, the First Appeal and the Second Appeal were also dismissed which can only lead to one conclusion that the private parties / plaintiffs were not in possession of the land in question, it does not say that the judgment in any manner affect the rights of the Gaon Sabha over the Abadi land.
(6) The order passed by the S.D.M. also cannot be said to be applicable on the Gaon Sabha which is the owner of the Abadi land.
(7) Having heard the counsel for both the parties, this Court is of the opinion that the orders passed by the Pargana Magistrate on 30.05.1985 and on 18.12.1990 cannot be directed to be complied with by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution in derogation of the right of the Gaon Sabha, the writ petition is dismissed.
Order Date :- 9.8.2023
N.PAL
