Rajeshwar Singh vs State Of U.P. And Others
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Allahabad High Court

Rajeshwar Singh vs State Of U.P. And Others on 13 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


A.F.R.
 
Neutral Citation No. - 2024:AHC:85195
 
Reserved on- 15.03.2024
 
 Delivered on-13.05.2024
 

 
Court No. - 84
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 5637 of 2006
 
Petitioner :- Rajeshwar Singh
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Rajiv Lochan Shukla,Anil Kumar Shukla,Devesh Vikram,Shailendra K.Singh,Shivakant
 
Counsel for Respondent :- Govt.Advocate,Abhishek Kumar Chaubey,Pradeep Pandey,S.N. Verma,S.S.Pandey+
 

 
Hon'ble Mrs. Jyotsna Sharma,J.
 

1. Heard Sri Ram Lakhan Deobanshi and Sri Shailendra Kumar Singh, learned counsels for the petitioner, Sri Anil Kumar Mishra, learned counsel for private respondent no.4 and Sri R.K. Gupta, learned A.G.A. for the State.

2. Written submissions/arguments filed on behalf of the petitioner and the private respondent no.4, are taken on record.

3. This criminal miscellaneous writ petition has been filed by petitioner Rajeshwar Singh against respondent no.4 Tez Bali and three others with a prayer as below:

" Issue a writ, order or direction in the nature of certiorari calling for the records of the case and quashing the impugned orders dated 3.1.2006 and 6.3.2006 passed by the respondent nos. 3 and 2 respectively (Annexure nos. 7 and 9 to the writ petition)"

4. The facts relevant for the controversy are:

• The grandfather (late Parmananda) of the petitioner Rajeshwar Singh instituted a proceeding under section 145 Cr.P.C. against his own real son before the S.D.M Chunar, whereby a preliminary order, attaching the property was passed on 04.03.1972.

• A criminal reference no. 13 of 1973 was made to the civil court, under section 146 Cr.P.C. and the civil court passed an order dated 03.05.1974, holding that grandfather of the petitioner, late Parmanand has been in possession over the plots in question, on the date of passing of preliminary order. Challenging the aforesaid order of 03.05.1974, the respondent no.4 Tejbali s/o Parmanand preferred a writ petition before this Court.

• During the pendency of aforesaid writ petition Parmanand died therefore, the writ petition no. 2690 of 1974 was dismissed on 20.11.1996 and interim order was discharged.

• In aforesaid order, the High Court made it clear that it will be open to the petitioner to raise a question about the desirability of continuing the proceeding under section 145 Cr.P.C., before the Magistrate concerned.

• Respondent no.4- Tejbali filed an application before the S.D.M., with a prayer that the disputed property may be released in his favour till the mutation proceeding pending before the Commissioner, Varanasi gets decided.

• The instant petitioner Rajeshwar Singh objected to aforesaid application filed by Tejbali, submitting that at the time when proceeding under section 145 Cr.P.C. was initiated, his father Dayaram and grandfather Parmanand were in possession and therefore after their death, the property had come into his possession.

• The court of S.D.M. Marihan, Mirzapur, by its order dated 11.04.2001, de-attached the disputed property and released the same in favour of Tejbali and the petitioner s/o Lt. Dayaram, subject to final decision by Addl. Commissioner, Varanasi Zone and dropped the proceeding under section 145 Cr.P.C.

• The instant petitioner as well as the instant respondent no.4 challenged the aforesaid order (dated 11.04.2001) by filing two separate criminal revisions i.e. criminal revision no. 142 of 2001 by the petitioner and criminal revision no. 98 of 2001 by the respondent no.4.

• Both the revisions were decided by a common order dated 16.07.2004, observing that only civil court could have decided the fact as to who were the heirs of the deceased, therefore, the order of the Magistrate deciding shares of the parties and releasing the disputed property in their favour, is an order passed beyond jurisdiction. The order was set aside and matter was remanded for decision afresh.

• The S.D.M. passed a fresh order on 03.01.2006, whereby he set aside the attachment, dropped the proceeding under section 145 Cr.P.C. and released the property in favour of respondent no.4-Tejbali.

• Challenging the aforesaid order passed by the S.D.M., the petitioner filed a criminal revision no. 15 of 2006, which was rejected by Addl. Sessions Judge, Mirzapur vide its order dated 06.03.2006. Now, the petitioner is before this Court invoking writ jurisdiction, challenging the two orders dated 03.01.2006 and 06.03.2006.

5. The grounds taken by the petitioner in nutshell are; that it was wrong on the part of the court concerned to have given a finding that the petitioner could not have challenged the order as he was not a party in the proceedings and therefore, the revision was not maintainable and secondly, it was a misconceived and misplaced finding that the matter of heirship of late Dayaram could only be decided by a civil court. It is submitted on behalf of the petitioner that respondent no.4 filed a civil suit surreptitiously in his name and in the name of father of the petitioner, with the pleading that they were in joint possession of the property Arazi no. 232 and prayed for decree of permanent injunction. That civil suit no. 446 of 1981 abated on the basis of an application moved by defendant, submitting that Dayaram had died and his heirs have not been substituted. In a civil appeal he was allowed to prosecute the suit further. The argument of the petitioner is that Lt. Parmanand has been in possession of the property and the property had been wrongly handed over to a receiver, though, the petitioner has been in possession. The petitioner has been cultivating the same after death of the supurdgar and therefore, the orders passed by the courts below are illegal and arbitrary. They could not have delivered the property to respondent no.4, solely on the ground that after death of Parmanand, his son i.e. respondent no.4 was the only surviving party to the proceeding. The contention is that the learned court ignored the express provisions of law under section 145(7) Cr.P.C., in which it is clearly provided that if any party to the proceeding under section 145 Cr.P.C., dies, all the persons claiming to be his heirs, shall be substituted. The impugned orders dated 03.01.2006 and 06.03.2006 suffer from manifest error of law. The courts below were wrong in holding that because the respondent no.4 was sole surviving party and the claim of heirship/inheritance was pending adjudication before the revenue court, hence property could have only be released in favour of respondent no.4.

Furthermore by means of supplementary affidavit, it has been contended by the petitioner, that the courts below gave away possession of entire property belonging to Parmanand, to respondent no.4, however, being the only son of late Dayaram, petitioner's name stood entered in revenue record. He obviously inherited the property belonging to his father Dayaram, therefore, he is entitled to succeed to the property of Parmanand, in addition to Tejbali.

6. The main objections raised by the respondent are:- first that petitioner is neither a recorded owner nor was ever in possession of the property, since the very beginning. Neither he nor his father were party to proceeding under section 145 CrP.C. and that he had no concern with the instant dispute. The mutation proceedings are still pending. The proceedings before the civil court as well as the revenue court are also pending hence, in view of judgment of Apex Court in Ram Sumer Puri Mahant Vs. State of U.P. and Amresh Tiwari Vs. Lata Prasad Dubey, the proceedings under section 145 Cr.P.C. are not maintainable. The petitioner is a stranger to proceedings under section 145 Cr.P.C., hence, there is no justification in reopening the proceeding under section 145 Cr.P.C. He has no locus standi to question the legality of the impugned orders. Secondly that the issue regarding death of father of the petitioner is pending adjudication hence, the controversy cannot be decided, before that issue is decided by a competent court. This court has no power to go into the questions of facts under article 226 of the Constitution of India, therefore, the petition may be dismissed with cost.

7. Before I take up the arguments as advanced by the rival side, some of the facts on which there is no controversy may be reiterated. The litigation under section 145 Cr.P.C. began between Parmanand and his real son Tejbali in the year 1972. The S.D.M. Chunar passed a preliminary order under section 145 Cr.P.C. and also directed attachment of the property in dispute. The attached property was given in possession of one Kripa Singh s/o Raghunath in the capacity of a Supurdgar. Admittedly, at that time all the disputed property in question was recorded in the name of Parmanand. As a question of de facto possession arose between father and son, the S.D.M, referred the matter to the civil court. The civil court gave its decision on 03.05.1974, holding that Parmanand has been in possession since two months before the dispute arose. On the basis of the judgment given by the civil court in the reference by the S.D.M., the land was directed to be released in his favour of Parmanand, however, Tajbali s/o of Parmanand preferred a writ petition and the order of S.D.M. dated 03.05.1974 (releasing the land in favour of Parmanand), was stayed meanwhile. During the pendency of the writ proceeding before the High Court, Parmanand (the respondent no.3) died therefore, the interim order was vacated and the writ dismissed as having become infructuous, in view of death of only contesting party Parmanand (the respondent therein). It may importantly be noted that Parmanand had died in 1978 and the writ was dismissed by an order passed on 20.11.1996 and further it may also be noted that the High Court made an observation that Tajbali may raise the question of desirability of continuing the proceeding before the Magistrate concerned. There is no controversy as regard the fact that Tejbali and Dayaram both are sons of Parmanand. There has been a dispute whether Dayaram has died or has gone on pilgrimage. The instant petitioner is son of aforesaid Dayaram. The litigation which began between Parmanand and his real son Tejbali, now passed on to between Tejbali and the instant petitioner Rajeshwar Singh s/o Dayaram, on death of Parmanand. There is no plea from any of the sides that the sons of deceased Parmanand were ever divested of their rights, which might have devolved on them on the death of their father. In the year 1997 and probably in the light of observation made by the High Court as regard desirability of the continuance of proceedings under section 145 Cr.P.C., Tejbali admittedly applied before the S.D.M. for release of property in his favour, saying that the property has been mutated in his name and his brother Dayaram's name in revenue paper and as Dayaram is on pilgrimage, therefore, taking advantage of this fact, his son Rajeshwar has wrongly got his name mutated in place of his father on false pretext of death of his father. Further it was submitted in the application given by Tejbali that the question of mutation and revenue entry in the name of Rajeshwar, in place of his father on the basis of inheritance, is subjudice before the court of Commissioner.

8. These contentions were vehemently opposed on behalf of Rajeshwar, saying that Tejbali (his uncle), on the basis of false, manipulated and twisted facts and especially concealing the fact that Dayaram has actually died, without impleading him i.e. Rajeshwar, his son as party, is trying to obtain order of release of property in his favour. The matter went before the S.D.M. again in the light of above submissions of both the sides and the S.D.M. passed an order on 11.04.2001 whereby he directed that the disputed property be released in favour of Tejbali and Dayaram both, mainly on the basis that there is no dispute that initially the property was in ownership and possession of Parmanand, now deceased and therefore Tejbali and Dayaram, both being his legal heirs and Rajeshwar who is undisputedly son of Dayaram, is entitled to have possession, It may be noted at this very juncture that the S.D.M. took a view that share in the property belonging to Dayaram, shall obviously go to his son and not to his brother Tejbali. It may also be noted that this kind of reasoning, observation and finding did not find favour with the court of revision. The court of revision passed an order on 16.07.2004 and remanded the matter for fresh hearing. Importantly, the order of remand was passed mainly on the premise that Rajeshwar was never a party in the litigation, therefore, the question of releasing it in his favour did not arise. And further that only Parmanand was found in possession of the property therefore, it could have been released in his favour only, had he been alive And as he has actually died and further the question of inheritance is sub judice before a competent court, hence till that issue is decided, the S.D.M. could not have released the property in favour of Rajeshwar.

9. In nutshell, following undisputed facts emerge that Parmanand, who is grandfather of the present petitioner Rajeshwar and father of respondent no.4, died in 1978, during the pendency of proceedings under section 145 Cr.P.C. (which was initiated at his behest against his real son Tejbali only) At that time, his other son Dayaram was not in picture, for the reason that he had either died or was not traceable. The writ proceeding before the High Court in which Parmanand and one of his sons Tejbali was party, was dismissed as having become infructuous because of his death. It may be noted that the fact that his other son being missing or having gone on pilgrimage and not traceable for any reason or had died was never brought before the courts concerned in any manner. The main contention of the petitioner is that these facts were deliberately not brought before the courts as respondent no.4-Tejbali his uncle wanted that all the property should be released in his possession only.

10. The provisions of section 145(7) Cr.P.C. which appear relevant in the circumstances of this case, are being reproduced as below:

"7. When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto."

The provision says that the proceeding under section 145 may continue by the legal representatives of the deceased party and further that where any question arises as to who is the legal representatives of the deceased party, all persons claiming to be his representatives shall be impleaded. There is no denial of the fact that Rajeshwar Singh is the real son of Dayaram. The question of inheritance went before the other forum just because a question was raised by Tejbali that till Dayaram is alive his son Rajeshwar cannot claim property. On the other hand, Rajeshwar always claimed that his father has actually died therefore, his share of property naturally devolved on him and that therefore, he should have been impleaded in the proceeding under section 145 Cr.P.C. and that he is entitled for release of at least his share in the property in his favour.

In view of above factual position, the impugned orders dated 03.01.2006, and 06.03.2006 cannot stand as whole of the property has been released in possession of his uncle Tejbali. He has been illegally deprived of his property. In the light of above arguments further contention of the petitioner is that in revenue records, the entry in his name exists. The order of mutation, though was challenged by Tejbali is still in force. And meanwhile, civil death of Dayaram has also been declared by the civil court.

11. The forceful contention of the petitioner is that it was wrong for assuming that property in question could only be delivered to Tejbali just because the only other party had died. The provisions of section 145 (7) Cr.P.C. were not followed. Respondent no.4 never brought this fact into knowledge of the SDM or any other court, (in which the other litigations proceeded) that he had a real brother Dayaram, who inherited half of the share, on death of Parmanand. It is argued that irrespective of the fact that Dayaram had died or was missing or was on pilgrimage, at least his real brother had no right over Dayaram's share. I find force in this argument. Another very important fact is that the purpose of proceeding under section 145 Cr.P.C. or attachment under section 146 Cr.P.C. is nothing but to prevent and avoid breach of peace and to maintain law and order for the purpose of keeping peace in the society at large. The provisions of section 145 and 146 Cr.P.C. are preventive in nature. The purpose is to prevent any ugly occurrence because of disputes over land and water. The executive has been entrusted with responsibility to take measures where a dispute between two private parties may give rise to an incident which may disrupt the peace to which society at large is entitled. Provisions of section 145(7) have been introduced for the purpose that in case, threat of breach of peace continues, even when a party has died, the proceeding may be continued by impleading the legal representatives of the warring parties. Definitely and undisputedly when legal representatives are to be impleaded for continuance of proceeding under section 145 Cr.P.C., the Magistrate is not to decide who is actually the legal heir of the deceased. The only thing is to be decided is who are to be substituted as his legal representative. I find it very important to point out that there is a difference between the legal heirs and legal representatives. The word "legal representative" has not been defined in Cr.P.C. In my opinion when a question arises as who is the legal representative of a party, same meaning should be attached as has been defined in Civil Procedure Code. The word 'legal heir' and 'legal representative' are not interchangeable and are not exactly the same, as is very clear from the definition itself. In my opinion, where a piquant situation arises, in matters where a party has died during the pendency of proceeding under section 145 Cr.P.C. and a serious dispute arises as to who is the legal heir, the Magistrate concerned cannot refuse to exercise its jurisdiction, just because he has no power to decide as to who is the 'heir' of the deceased or just because the matter of inheritance is fiercely fought in a civil court. The purpose of the proceeding under section 145 Cr.P.C. is significantly different from the proceedings which may be pending between the parties in a civil court or a revenue court. Definitely, the S.D.M. is not empowered to decide the question of inheritance however, he can always implead a legal representative to continue the proceedings with a larger interest of the parties and the society in mind.

12. It is very interesting to note that probably the dispute, which may cause breach of peace continued but the S.D.M. dropped the proceeding. Another thing which has escaped attention at almost all the stages of litigation is that the property was handed over to a Supurdgar and admittedly he died before the very first round of litigation under section 145 Cr.P.C., came to be finally concluded. In my opinion, it was duty of the S.D.M. to appoint any other person in place of deceased supurdgar but that step was never taken, instead, the heirs of supurdgar kept taking care of the property and this is too glaring and gross negligence on the part of the S.D.M. concerned. The rights and duties of supurdgar cannot devolve upon the heirs of a supurdgar.

13. In view of the above facts and circumstances, I find that this matter needs indulgence of this Court in exercise of powers under article 226 of Constitution of India. Hence, the impugned orders dated 03.01.2006 and 06.03.2006 are hereby set aside and the court concerned is directed to open the proceeding under section 145 Cr.P.C., and direct for substitution of legal representative. Further he/she shall decide the question of desirability of its continuance, in the light of the purpose of the initiation of the proceedings under section 145 Cr.P.C. which is to prevent breach of peace. And in case the court is of opinion that there is no need to continue the same as no longer apprehension of breach of peace existed, it shall decide the matter of delivery of possession in accordance with law.

14. The impugned orders dated 03.01.2006 and 06.03.2006 are hereby set aside. The matter is remanded to the court concerned for decision afresh in the light of observations made in the body of this order.

15. Accordingly, this petition is disposed of.

Order date: 13.05.2024

Sumit Kumar