Savitri Devi vs State Of U.P. And 5 Others
2025 Latest Caselaw 12535 ALL

Allahabad High Court

Savitri Devi vs State Of U.P. And 5 Others on 14 November, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 

 

 

 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
APPLICATION U/S 528 BNSS No. - 9427 of 2025
 

 

 

 
..Petitioners(s)
 

 

 

 

 
Versus
 

 

 

 

 
State  of UP. And others
 

 
..Respondents(s)
 

 

 
Counsel for Petitioners(s)
 
:
 
Sharad Chand Rai
 
Counsel for Respondent(s)
 
:
 
G.A.
 

 

 
Court No. - 82
 

 
HON'BLE PRAVEEN KUMAR GIRI, J.

1. Heard learned counsel appearing on behalf of the parties.

2. Learned counsel for the applicant submits that he has filed this application under Section 528 of BNSS with the relief which has been mentioned in the prayer clause of the application.

3. The relief which has been mentioned in the present application is delineated below:-

"It is, therefore, Most Respectfully prayed that this Hon'ble Court may kindly be pleased to allow the application and to partly quash/set aside the impugned order dated 05.04.2024 passed by the opposite parties no 2 i.e. Sub Divisional Magistrate, Tehsil Sadar, District Shahjahanpur in T202312610109073 Case No. 9073 of 2023 Computerized Case No. (Smt. Vidyawati and Others Vs. Dinesh Kumar and Others) u/s 145 and 146 (1) of Cr.P.C. P.S. Nigohi, Tehsil Sadar, District Shahjahanpur.

It is further prayed that this Hon'ble Court may graciously be pleased to direct the Respondent No. 2 and 3 to allow the applicant to cut his crop from the Gata No. 1464 and 1467 area 0.5260 Hectare And 0.3735 Hectare situated at Village Ghusgwan Bangar Pargana and Tehsil Sadar, Police Station Nigohi, District Shahjahanpur.

And/or pass such any other and further order which this Hon'ble Court may deem fit and proper under the fact and circumstances of the aforesaid case, otherwise the applicant shall suffer irreparable loss and injury."

4. Learned counsel for the applicants submits that the property of applicant, Savitri Devi, has been attached under Section 145 Cr.P.C. It is submitted that report obtained from the Station House Officer, Nigohi, has not been taken into consideration. The report of SHO is pasted below:-

5. In the above report, it has been mentioned by the SHO, Nigohi, that who has sown the crops on the plot is not clear as both the parties are claiming that the crops have been sown by them. Learned counsel for the applicant further submits that tenure holder i.e. husband of the applicant has by way of registered will had given share in the land property to all the heirs. On the query from this court whether any partition suit has been filed in respect of plot under Section 116 of the UP Revenue Code while one civil suit has been filed in which there is no interim relief as against co-sharers no order can be passed. Due to apprehension of the breach of peace, the proceedings under section 145 Cr.P.C. has been initiated and the property has been attached under section 146 Cr.P.C. vide order dated 5.4.2024. The Sub Divisional Officer vide order dated 5.4.2024 directed to the SHO, Police Station Nigohi to give possession of the crop as well as land to any person.

6. Matter requires consideration.

7. Notice on behalf of opposite party Nos. 1,2,3 & 6 has been accepted by the office of learned Government Advocate.

8. Issue notice to opposite party Nos.4 and 5.

9. All the respondents are directed to file counter affidavit within a period of four weeks. Two weeks, thereafter, is granted to learned counsel for the applicant to file rejoinder affidavit.

10. The SHO, Nigohi, is directed that if no receiver has been appointed till now in respect of the applicants land as well as the crop, he shall immediately appoint a receiver for the management of the said land and crop. If the crop is ripe, it shall be sold in the market and the sale proceeds shall be deposited in a fixed deposit.

11. The present Sub-Divisional Magistrate, Tehsil Sadar, District Shahajahanpur, is further directed that, if a partition suit is filed under Section 116 of the U.P. Revenue Code, the same shall be decided within the time frame as provided under the U.P. Revenue Code. As there is already an order of attachment, there is no need for passing any interim order under Section 117 of the U.P. Revenue Code.

12. The parties are also directed to file a partition suit so that the dispute raised in this case may be finally adjudicated; otherwise, the proceedings under Section 145 Cr.P.C. shall be considered only on the basis of possession.

13. List this case on 19.01.2025.

14. The present Sub-Divisional Magistrate, Tehsil Sadar, District Shahjahanpur, is directed to file a counter-affidavit disclosing the entire facts and circumstances under which this case has been instituted.

15. After the aforesaid order has been passed, learned counsel for the applicant submits that applicant shall not file any partition suit, therefore, the matter shall be adjudicated at this stage finally.

16. It is apparent from the record that a dispute regarding possession of the land in question has arisen between the parties. Where a dispute arises regarding the possession of any Revenue Khatauni/Agricultural land which has not been duly divided in accordance with Sections 30(2) or 116 of the U.P. Revenue Code, then in proceedings under Section 145 Cr.P.C. only the question of actual possession shall be seen and not the title of the parties. Until the land is divided by instituting a suit for division of holding as prescribed under Section 116 of the UP Revenue Code, possession cannot be declared.

17. The police report indicates that both the parties, who are members of the same family, are asserting that they have sown the crops on the disputed land. In these circumstances, where the land is undivided and both sides claim cultivation, it is not possible to conclusively ascertain who is in actual possession. Therefore, the Sub Divisional Officer has passed an order under Section 146 of Cr.P.C. for appointing a receiver just to maintain law and order and peace in the society.

18. In that view of the matter, at this stage, this Court cannot adjudicate the possession only on the basis of impugned order and the revenue record i.e. Khatauni.

19. Learned counsel for the applicant further submits that there are several judgments of this High Court and Hon'ble the Supreme Court in which it has been held that in case any civil suit is pending, the proceedings under Section 145 and 146 Cr.P.C. cannot be initiated, therefore, the initiation of proceedings under Section 145 and 146 Cr.P.C. is bad in the eye of law.

20. On the above submission, when this Court made a query as to whether any interim order had been passed in the civil proceedings, learned counsel for the applicant informed that neither an order of status quo nor any other interim protection had been granted in the civil suit, which has not been filed for division of the holding but only for maintaining possession of the land, although the land has not been duly divided as per the provision of Section 116 of the U.P. Revenue Code.

21. In view of the above facts and circumstances of the case, it is the opinion of the Court that if the parties will not file partition suit/suit for division of holdings under Section 116 of the U.P. Revenue Code, the area which belongs to tenure holders cannot be defined, and for defining the area, the Kurraphat shall be prepared by the Lekhpal on the permission of the Court of Sub Divisional Magistrate under Section 116 of the U.P. Revenue Code. On the basis of Kurraphat, correction shall be made in the village map in respect of plot in question to the extent of shares of the applicant and other co sharers. After partition, in the revenue map, the plot is divided with specific number along with area to the extent of share of the tenure holders.

22. Thus, without a partition suit, no correction can be made in the revenue map or in the revenue records. Consequently, the respective shares cannot be determined, and the dispute regarding possession will continue to persist. Therefore, the impugned order is passed by the Sub Divisional Magistrate just to maintain peace in the society under Section 145 and 146 Cr.P.C.

23. In view of the above, the proceedings which have been initiated under Section 145 and 146 Cr.P.C. are in accordance with law.

24. Accordingly, this application is dismissed.

November 14, 2025

DKS