Allahabad High Court
Mohd. Tausif vs State Of U.P. And 3 Others on 30 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:98715
Reserved on 14.5.2024
Delivered on 30.5.2024
Court No. - 89
Case :- APPLICATION U/S 482 No. - 682 of 2020
Applicant :- Mohd. Tausif
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Ateeq Ahmad Khan,Mohd. Saleem Khan
Counsel for Opposite Party :- G.A.,Rajiv Lochan Shukla
Hon'ble Mayank Kumar Jain,J.
1. Heard Mohd. Saleem Khan, learned counsel for the applicant, learned AGA for the State, Sri Rajiv Lochan Shukla, learned counsel for opposite party nos.2 and 3 and perused the record.
2. Present application u/s 482 of Cr PC has been filed by the applicant, praying for quashing the order dated 16.11.2019 passed by Additional District Judge, Court No.11, Saharanpur in Criminal Revision No.236 of 2019 : Haji Ashfaq vs. Haji Mohd. Tausif under Section 145/146 of Cr PC.
3. It is submitted by learned counsel for the applicant that the applicant had executed a sale deed on 15.7.2009 in favour of opposite party nos.2 and 3 for a sale consideration of Rs.7 lacs. The sale consideration was given through a post dated cheque. It was provided as pre-condition in the sale deed that the possession over the property sold shall be given to the purchaser after encashment of the cheque. It was also agreed upon that if, for any reason, cheque is not cleared, the sale deed would stand cancelled. The cheque was deposited by the applicant, but it was returned by the Bank with the remark 'insufficient fund'. Therefore, the sale deed automatically came to an end. The possession over the property in question was never handed over to opposite party no.2 and 3 and it remained with the applicant.
4. When opposite party nos.2 and 3, tried to take forcible possession over the property in dispute, the applicant lodged an FIR on 21.12.2009 against them under Sections 447, 406, 504, 506 of IPC. After investigation, a charge-sheet came to be filed. Since opposite party nos.2 and 3 were repeatedly trying to encroach upon the land, therefore, the applicant filed an application under Section 145 of Cr PC before the Sub Divisional Magistrate, Sadar, District Saharanpur which was registered as Case No.02/2016: Haji Mohd. Tausif vs. Haji Ashfaq Ahmad and another.
5. The opposite party nos.2 and 3 filed an application before learned Sub Divisional Magistrate, Saharanpur with the contentions that pursuant to sale deed dated 15.7.2009, they were having title and possession over the disputed property. They have filed civil appeal, having No.71/2016: Haji Ashfaq & Ors vs. Mohd. Tauseef, against the judgment and order dated 24.9.2016 passed in Original Suit No.1050/2009, whereby the said sale deed is declared to be void. The appeal is pending before the Additional District Judge, Court No.7, Saharanpur. The question of title and possession between the parties over the property in dispute is still pending adjudication before the appellate Court, therefore, the proceedings u/s 145 of Cr PC be kept in abeyance.
6. Opposite party nos.2 and 3 filed a Civil Suit No.1029 of 2009 in the Court of Civil Judge (Senior Division), Saharanpur: Haji Ashfaq Ahmad & Others vs. Mohd. Tauseef, seeking relief of permanent injunction against the applicant. An application for temporary injunction was also moved in this Suit. The learned Court recorded a specific finding that the plaintiffs were not in possession over the property pursuant to the alleged sale deed dated 15.7.2009. It was also observed by the Court that since no consideration was passed, the alleged sale deed stood automatically cancelled under the terms of the sale deed. The application for temporary injunction was rejected, vide order dated 16.11.2010. Opposite parties did not file any appeal and thereafter, order dated 16.11.2010 attained finality. At a later stage, the suit was dismissed in default of plaintiffs (opposite parties) on 24.11.2014.
7. The applicant filed civil suit No.1050 of 2009: Mohd. Tauseef vs. Haji Ashfaq Ahmad & Others, before the Civil Judge (Senior Division), Saharanpur, claiming a relief of declaration to the effect that the sale deed dated 15.7.2009, registered on 24.8.2009, is non-existent since no sale consideration was received by him. The suit filed by the applicant was decreed, vide judgment and order dated 24.9.2016. Sale deed dated 15.7.2009, registered with Sub-Registrar on 24.8.2009 was declared as void. It was declared that the sale deed executed in favour of opposite party nos.2 and 3, registered on 24.8.2009, is non-existent. Against this judgment, opposite party nos.2 and 3, filed Civil Appeal No.71 of 2016: Haji Ashfaq Ahmad & Others vs. Mohd. Tauseef, before the District Judge, Saharanpur, which is still pending for disposal.
8. The Sub Divisional Magistrate, Saharanpur passed an order for attachment of the property and appointed the Station House Officer, Police Station Gagalhedi, as receiver.
9. Feeling aggrieved by the order dated 28.3.2018, opposite party nos.2 and 3 filed revision, bearing No.77 of 2018: Haji Ashfaq Ahmad & Others vs. Mohd. Tauseef, before the District Judge, Saharanpur. The applicant filed his affidavit along with some annexures during pendency of this revision. The said revision was allowed. The order of attachment dated 28.3.2018 was set aside. The matter was sent back to the Court of Sub Divisional Magistrate, Sadar, Saharanpur, for passing a fresh order after giving proper opportunity of giving evidence and granting liberty of hearing to the parties.
10. Feeling aggrieved by the revisional order, the applicant filed a Criminal Misc. Application U/s 482 No.20706 of 2018 (Mohd. Tausif vs. State of UP & Another) before this Court. The effect of order dated 26.5.2018, passed by the Additional District and Sessions Judge, was stayed by this Court vide its order dated 6.6.2018. The said application was finally disposed of vide order dated 3.12.2018. The learned Magistrate was directed to decide the proceedings within a period of two months in pursuance of the revisional court's order, leaving it open for the parties to adduce evidence, which they desire to file.
11. Learned Sub Divisional Magistrate, at the behest of opposite party nos.2 and 3, directed the Station House Officer, Gagalkheda, Saharanpur, to open the seal of the property in question, whereas by the order passed by this Court dated 3.12.2018/20.12.2018, the attachment of the premises in question was to continue during the pendency of the proceedings before the Sub Divisional Magistrate. As soon as the seal over the property was removed, opposite party nos.2 and 3 succeeded to occupy the property in question with the help of police force.
12. The applicant moved an application before the Sub Divisional Magistrate, Saharanpur, informing about the order passed by this Court and with another prayer, to withdraw the order for opening the seal of the property. The applicant also filed a contempt application No.3815 of 2018 before this Court in which, notices were issued to the Sub Divisional Magistrate, Sadar, Saharanpur. Ms Sangeeta, the then Sub Divisional Magistrate, Sadar, Saharanpur filed an affidavit of compliance before this Court to the effect that she passed an order on 2.8.2018 and the direction of the Court has been complied with. Pursuant to the order passed by this Court in Application U/s 482 No.20706 of 2018 (Mohd. Tausif vs. State of UP & Another) dated 6.6.2018, the Station House Officer was directed to attach the property in dispute. Now the property has been attached and sealed. Thus, the possession from opposite party nos.2 and 3 was taken by the Station House Officer concerned.
13. The applicant, pursuant to the order dated 3.12.2018 of this Court, filed his affidavit as evidence on 9.1.2019 before the trial Court. The learned Sub Divisional Magistrate, after hearing both the parties, passed an order dated 27.5.2019 with a conclusion that since the civil proceedings were pending between the parties, therefore, further proceedings pending before him, shall remain stayed. Against this order, the opposite parties filed a criminal revision No.236 of 2019 before the District Judge, Saharanpur. The said revision was allowed vide order dated 16.11.2019. The order dated 27.5.2019 passed by the Sub Divisional Magistrate was set aside. The learned Magistrate was directed to pass order afresh, after giving an opportunity of adducing evidence to the parties pursuant to order dated 3.12.2018 of this Court.
14. This order is under challenged before this Court.
15. Learned counsel for the applicant submitted that the order of the learned Sub Divisional Magistrate dated 27.5.2019 was passed on the basis of material available on record which indicates that the injunction application of opposite party nos.2 and 3 was rejected. Opposite parties failed to prove their title and possession over the property in dispute. Therefore, there was no occasion for the Revisional Court to set aside the aforesaid order. The title and possession of the applicant over the property in dispute has been affirmed in Suit No.1029 of 2009 and Suit No.1050 of 2009, therefore, the order of the Revisional Court relegating the matter again to the learned Magistrate is bad in the eyes of law. Opposite party nos.2 and 3 were making repeated attempts to take forcible possession over the property and, therefore, the applicant was compelled to seek police assistance. The Revisional Court wrongly held that the learned Sub Divisional Magistrate, while passing the order dated 27.5.2019, has ignored the order of this Court dated 3.12.2018 and has not followed the direction given by this Court. It is further argued that in view of the provisions contained in Section 145/146 of Cr PC, the learned Magistrate has no jurisdiction to pass any order contrary to the findings recorded by the competent Court in a civil suit between the parties. Pursuant to the order dated 16.11.2019, passed by the Revisional Court, opposite party nos. 2 and 3 are making all efforts to get the property in question released in their favour. As on date, none of the parties is in possession.
16. The property remained continuously under attachment since 2018. The appeal filed by the opposite parties against the judgment and order dated 24.9.2016 is pending. The learned trial Court recorded a definite finding that the sale deed dated 24.9.2016 was non-existent since no consideration was paid to the applicant.
17. Per contra, Sri Rajiv Lochan Shukla, learned counsel for opposite party nos.2 and 3 submitted that in spite of a recital in the sale deed with respect to the cheque, a Demand Draft of equal amount had been given. The copy of the Demand Draft is brought on record through counter affidavit. Opposite party nos.2 and 3 are in possession over the property. So far as rejection of interim injunction application by the Court is concerned, it never adversely affected the merits of the case about the title of opposite party nos.2 and 3. The order passed by the Sub Divisional Magistrate, Saharanpur was wrong, perverse and was liable to be set aside. The Revisional Court has rightly set aside the order of the Sub Divisional Magistrate, to ensure compliance of the order of this Court dated 3.12.2018. The judgment and decree passed in Suit No.1050 of 2009 (Mohd. Tauseef vs. Haji Ashfaq Ahmad & Others) is under challenge before the Civil Court.
18. Sri Shukla, further submitted that the present application u/s 482 of Cr PC is not maintainable since vide order dated 26.5.2018 passed by the Revisional Court, the matter has been sent back to the learned Sub Divisional Magistrate for according proper opportunity of evidence, hearing to the parties and to decide the matter afresh. The order dated 26.5.2018 was passed by the Revisional Court to ensure compliance of this Court's order dated 3.12.2018. The Sub Divisional Magistrate did not consider the order dated 3.12.2018 passed by this Court.
19. Sri Shukla, further submitted that on one hand, the applicant is saying that no consideration was made to him pursuant to the sale deed dated 15.7.2009 since the cheque was dis-honoured, but on the other hand, the applicant is prosecuting opposite party nos. 2 and 3 under Section 138 of Negotiable Instrument Act. The order passed by learned Sub Divisional Magistrate dated 27.5.2019 does not indicate that which of the party was found in possession over the property in dispute. It is also submitted that the applicant had not challenged the specific finding of the Revisional Court.
20. It is submitted that under the provisions contained in Section 145 (4) of Cr PC, the Executive Magistrate has to receive the evidence of the parties produced by them and to decide that on the date of application, which of the party was in possession. The application of the applicant is liable to be rejected.
21. Section 145 of Cr PC provides thus:
S. 145 Procedure where dispute concerning land or water is likely to cause breach of peace.
1. Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
2. For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
3. A copy of the order shall be served in the manner provided by the Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
4. The Magistrate shall then, without reference to the merits or the claims of any of the parties, to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any as he thanks necessary, and, if possible, decide whether and which of the parties was, at the date of the order made by him under Sub-Section (1), in possession of the subject of dispute;
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under Sub-Section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under Sub-Section (1).
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22. This Court, while deciding the application u/s 482 of Cr PC No.20706 of 2018: Mohd. Tauseef vs. State of UP and others, vide its order dated 3.12.2018, passed the following orders:
"Heard learned counsel for the applicant, learned A.G.A. for the State and Shri Sumit Daga for opposite party No.2.
The applicant has approached this Court against the revisional order dated 26.5.2018 passed by the revisional court in Criminal Revision No.77 of 2018. By the order aforesaid the matter has been remanded back to the magistrate to consider the evidence of the parties and pass a fresh order in accordance with law.
Leaving it open for the parties to adduce any other evidence, which they wish to lead before the magistrate, this application is disposed of directing the magistrate concerned to decide the proceedings in pursuance of the revisional order within a period of two months from the date of production of a certified copy of this order. During the pendency of this revision the attachment of the property shall continue."
23. The matter was remanded back to the Sub Divisional Magistrate, Sadar, Saharanpur, with the liberty to parities to adduce evidence and to decide the proceedings in pursuance of the Revisional Court's order.
24. Learned Sub-Divisional Magistrate passed the following order on 27.5.2019:
"--- --- --- i=koyh ij vk;s rF;ksa ,oa lkF; ls fdlh Hkh i{k dk v/;klu fl+} ugh gksrk gS rFkk iz'uxr Hkwfe ds fo"k; esa LokfeRo dk okn vHkh O;ogkj U;k;ky; esa fopkjk/khu gSA izFke i{k gkth ekS0 rkSlhQ dh vksj ls ek0 vij ftyk U;k;k/kh'k egksn; lgkjuiqj d{k uacj 7 lh0,0ua0 71@16 v'kQkd cuke ekS0 rkSlhQ dh izekf.kr izfrfyfi nkf[ky dh x;h ftlls Li"V gS fd iz'uxr Hkwfe ds fo"k; es ekeyk O;ogkj l= U;k;ky; esa fopkjk/khu gSA O;ogkj U;k;ky; esa okn fopkjk/khu jgrs gq, orZeku okn dh dk;Zokgh dks ek0 mPp U;k;ky; dh fof/k O;oLFkk ds vk/kkj ij pyk;k tkuk U;k; laxr ugha gS rFkk okn esa i{kksa }kjk v/;klu fl} u gksus ds ifj.kke Lo:i bl U;k;ky; dks fdlh Hkh i{k dks v/;klu fn;k tkuk /kkjk 145 n0iz0la0 ds izkfo/kkuksa ds vUrZxr ugha gSA--- --- ---
vkns'k
vr% mDr foospuk ds vk/kkj ij iz'uxr izdj.k O;ogkj U;k;ky; esa fopkjk/khu gksus ds vk/kkj ij bl okn dh dk;Zokgh blh Lrj ij ;FkkfLFkfr LFkfxr dh tkrh gS rFkk i{kx.k dks funsZf'kr fd;k tkrk gS fd O;ogkj U;k;ky; }kjk ikfjr vkns'k ds mijkUr gh bl okn esa vfxze dk;Zokgh dh tk;sxhA izHkkjh fujh{kd Fkkuk xkxygsMh dks vkns'k dh ,d izfr ekSds ij 'kkUrh O;oLFkk cuk;s j[kus gsrq izsf"kr dh tk,A ckn vko';d dk;Zokgh mijkUr i=koyh lafpr vfHkys[kkxkj gksA"
25. Feeling aggrieved with this order, opposite party nos.2 and 3, preferred a Revision No.236 of 2019: Haji Ashfaq vs. State of UP & Others, before the District Judge. This revision was allowed by learned Additional District and Sessions Judge, Court No.7, Saharanpur, vide order dated 16.11.2019. It was concluded that:
"--- --- --- 13- tcfd fo}ku voj U;k;ky; }kjk mDr izkfo/kku ds vuq:i vkns'k ikfjr ugha djrss gq, okn dh dk;Zokgh bl vk'k; ls LFkfxr dj nh x;h fd O;ogkj U;k;ky; ds vkns'k ds mijkUr bl okn esa vfxze dk;Zokgh dh tk;sxhA Lohd`r :i ls fnokuh U;k;ky; esa cS;ukek fujLrhdj.k dk okn yfEcr gS ftlesa vkf/kiR; ;k fu"ks/kkKk dk dksbZ vuqrks"k lekfgr ugha gSA O;ogkj U;k;ky; }kjk ikfjr fu.kZ; gj ifjfLFkfr esa eftLV~zsV U;k;ky; ij ck/;dkjh gksxkA mDr fu.kZ; ds mijkUr bl iz'uxr okn esa dksbZ dk;Zokgh fd;k tkuk 'ks"k ugha jgsxkA
14- izR;FkhZ ds fo}ku vf/koDrk }kjk ;g rdZ fn;k x;k gS fd fuxjkuhdrkZ@foi{kh }kjk Lo;a fo}ku voj U;k;ky; ds le{k fnukad 7-09-2017 dks izkFkZuk i= izLrqr fd;k x;k Fkk fd fnokuh U;k;ky; esa nksuksa i{kksa ds e/; dk;Zokgh fopkjk/khu gksus ds vk/kkj ij bl okn dh dk;Zokgh LFkfxr ;k fujLr dj dh nh tk;sA vc iqu% fuxjkuhdrkZ bl dk;Zokgh ds fo:) fo}ku voj U;k;ky; ds vkns'k dks vk{ksfir ugha dj ldrkA mDr fcUnq ij ;g rF; mYys[kuh; gS fd mDr izkFkZuk i= izLrqr fd;s tkus mijkUr fo}ku voj U;k;ky; us fnukad 28-03-2018 dks okn dh dk;Zokgh djrs gq, fuxjkuhdrkZ@foi{kh dks csn[ky dj fookfnr lEifRr dqdZ fd;s tkus dk vkns'k fn;k kFkk ftlds fo:) fuxjkuhdrkZ }kjk iwoZ esa Hkh fuxjkuh nkf[ky dh x;hA orZeku esa fo}ku voj U;k;ky; dks ekuuh; mPp U;k;ky; }kjk felysfu;l ,Iyhds'ku ds vUrZxr /kkjk & 482 la[;k &20706@2018 esa fn;s x;s vkns'k fnukafdr 03-12-2018 ds vuqikyu esa iqujh{k.k U;k;ky; }kjk fuxjkuh la[;k&77@2018 esa ikfjr fu.kZ; esa fn;s x;s fn'kk funsZ'kksa ds vuqlkj viuk fu.kZ; nsuk pkfg, FkkA foi{kh ds mDr izkFkZuki= ij vc fopkj fd;s tkus dk dksbZ vkSfpR; ugha gSA
15- vr% mijksDr rF;ksa o ifjfLFkfr;ksa fof/k O;oLFkk ,oa izkfo/kkuksa rFkk mHk;i{k ds rdksZ dk fo'ys"k.k djus ds mijkUr U;k;ky; dk fu"d"kZ gS fd fo}ku voj U;k;ky; }kjk ikfjr vkyksP; vkns'k {ks=kf/kdkfjrk ds vUrZxr ikfjr ugha fd;k x;k gSA fo}ku voj U;k;ky; }kjk ikfjr vkns'k fof/k rF;ksa ds vuq:i ugha gSA vr% mijksDrkuqlkj vkns'k fLFkj jgus ;ksX; ugh gSA QyLo:i fuxjkuh Lohdkj fd;s tkus ,oa ikfjr vkns'k fnukWad 27-05-2019 vikLr gksus ;ksX; gSA
vkns'k
fuxjkuhdrkZ dh vksj ls izLrqr fuxjkuh Lohdkj dh tkrh gS rFkk fo}ku voj U;k;ky; mi ftyk eSftLV~~zsV] lgkjuiqj }kjk /kkjk 146 (1) na0iz0la0 ds vUrZxr ikfjr vkyksP; vkns'k fnukafdr 27&05&2019 vikLr fd;k tkrk gSA fo}ku voj U;k;ky; dks vknsf'kr fd;k tkrk gS fd og ekuuh; mPp U;k;ky; }kjk felysfu;l ,Iyhds'ku vUrxZr /kkjk 482 la[;k &20706@2018 esa ikfjr vkns'k fnukafdr 03&12&2018 esa fn;s x;s fn'kk funsZ'kksa ds vuqikyu esa mHk;i{k dks lk{; dk volj iznku djrs gq, fof/k lEer vkns'k ikfjr djsaA"
26. Perusal of the aforesaid order goes to show that the learned Additional District & Sessions Judge arrived at a conclusion that the learned Sub Divisional Magistrate, Sadar, Saharanpur, ignored the directions given by this Court in its order dated 3.12.2018 passed in Application U/s 482 No.20706 of 2018 (Mohd. Tauseef vs. State of UP & Ors.) and failed to pass an order pursuant to the directions issued by this Court. So far as the conclusion of the learned Sub Divisional Magistrate that since a civil litigation between the parties was pending, therefore, he ordered to keep the proceedings in abeyance is concerned, the appeal preferred by opposite party nos.2 and 3 against the cancellation of sale deed dated 15.7.2009 was pending consideration before the Appellate Authority. Suffice to say that the dispute of title and possession was pending before the Civil Court between the parties when the order dated 27.5.2019 was passed by the learned Sub Divisional Magistrate, Sadar, Saharanpur.
27. The Revisional Court rightly concluded that the judgment passed by the Civil Court is binding upon the learned Sub Divisional Magistrate. After the judgment of the Civil Court, no proceeding would remain pending before the Sub Divisional Magistrate, Sadar, Saharanpur. The Revisional Court rightly arrived at a conclusion that the learned Sub Divisional Magistrate failed to comply with the directions issued by this Court and passed the order without jurisdiction.
28. The Revisional Court relegated the matter to the learned Sub Divisional Magistrate, Sadar, Saharanpur, to comply the order of this Court dated 3.12.2018 in true letter and spirit and to pass an order in accordance with law.
29. The learned Sub Divisional Magistrate, Sadar, Saharanpur was duty bound to proceed with the matter strictly in accordance with the directions given by this Court, vide its order dated 3.12.2018 passed in Application U/s 482 No.20706 of 2018 (Mohd. Tauseef vs. State of UP & Ors.). He completely ignored the directions of this Court and steered to wrong direction. It appears that he did not peruse the record in correct perspective and opined that civil litigation between the parties was pending, while in the matter about the existence of sale deed dated 15.7.2009 was in consideration before the Appellate Court. No question of title and possession about the property in dispute was pending before the Appellate Court. Therefore, it was incumbent upon the Sub Divisional Magistrate, Sadar, Saharanpur to decide the matter strictly in accordance with the directions of this Court and in view of the provisions contained in Section 145 of Cr PC.
30. In view of above, this Court is of the opinion that the learned Additional District and Sessions Judge, while allowing Revision No.236 of 2019, passed the order having regard to the facts and circumstances of the case and on the basis of the material available on record. The impugned order is passed to ensure the compliance of the order of this Court dated 3.12.2018 passed in Application U/s 482 No.20706 of 2018 (Mohd. Tausif vs. State of UP & Another). The order impugned does not warrant any interference.
31. The present application is, accordingly, dismissed.
Dated:- 30th May, 2024
RKK/-
(Mayank Kumar Jain, J)
