Chandra Sahai and Another vs State of U.P. and Others

The petitioners have filed this writ petition with a prayer that the order dated 5.9.2000 passed by the Sub Divisional Magistrate, Patiyali District Etah may be quashed and the respondents may be ordered not to interfere in the peaceful possession of the plaintiffs over their plots situated in village Saria Patti Pargana Sidpura Tehsil Patiyali District Etah.

In brief, the facts of the case are that the petitioner No. 1 Chandra Sahai filed Original Suit No. 103 of 1987 whereas, petitioner No. 2 Smt, Kiran Devi filed Original Suit No. 127 of 1987 in the court of Civil Judge (Jr. Div.) Kasganj, District Etah against the State Government through Collector Etah, Senior Superintendent of Police Etah, Executive Engineer, P.W.D. Etah and Station House Officer, Police Station Sidpura District Etah, alleging therein that they are the owner and Bhumidhars of the land mentioned in the plaint and are also in possession of the same. Plot No. 66 has been allotted to the police department for the construction of Police Station Sidpura and the land of the petitioners is adjacent to the said plot No. 66. In the suits it was alleged that the defendants want to take forcible possession of the land of the plaintiffs, hence, they may be restrained from interfering in the possession of the plaintiffs.

During the pendency of the case in the court, the defendants took forcible possession of part of the land of the plaintiffs, hence, the relief Clause was amended and it was prayed that the plaintiffs may also be given possession of the land, which has wrongly been taken into possession of the defendants. The suits were ultimately decreed by a common judgment and it was ordered by the Addl. Civil Judge (Jr. Div.) Kasganj on 26.2.1996 that the defendants are restrained from interfering in the possession of the plaintiffs over their land. It was further ordered that the defendant No. 2 namely Sr. Superintendent of Police, Etah shall pay Rs. 5,000/- to the plaintiff Smt. Kiran Devi for taking unauthorised possession of her land. The defendants were further directed to remove their constructions from the land of the plaintiffs.

It further appears from the record that after loosing the legal battle in the Civil Suit, the Lekhpal of the Halka submitted a report to the Sub Divisional Magistrate, Patiyali that the land of plot No. 66 has been reserved for the construction of Police Station Sidpura and adjoining to this land is the land of Smt. Kiran Devi and Chandra Sahai and others. This land has not been declared as Abadi u/s 143 of the U.P. Zamindari Abolition and Land Reforms Act nor any measurement have taken place u/s 41 of the Act. The lekhpal also reported that prima-facie it appears that Chandra Sahai and others are raising construction beyond their land. The report of Lekhpal was forwarded by Naib Tehsildar and then the Sub Divisional Magistrate, Patiyali passed an order dated 5.9.2000 which has been sought to be quashed in this writ petition.

The respondents, in this writ petition, were directed to file the counter affidavit vide order dated 29.1.2003 but no counter affidavit was filed by them. By the same order dated 29.1.2003, operation of the impugned order dated 5.9.2000 was stayed.

In the writ petition, petitioners have alleged all the facts which have been noted above. They have further mentioned that after the decree was passed by the Civil Court, petitioners started constructions over the land on 1.8.2000 which continued upto 5.9.2000. On 5.9.2000, the Sub Divisional Magistrate, Patiyali passed order to stop the construction, which order is without any basis. The petitioners raised their grievances before the District Magistrate by moving applications dated 18.10.2000, 8.1,2001 and 22.1.2001 with several subsequent reminders but no attention was paid.

We have heard learned Counsel for the petitioners as well as learned standing Counsel for the Respondents.

A perusal of the judgment of the Civil Judge (Jr. Div.) Kasganj reveals that the land in dispute was surveyed by the Court Amin and it was found that the defendants have encroached upon the land of the plaintiffs. Accordingly, suit was decreed and the defendants were directed to remove the encroachment from the land of the plaintiffs. Ultimately, the constructions were removed and the possession was handed over to the plaintiffs through court Amin.

The plaintiffs have alleged in Para -18 of the writ petition that after the judgment and order dated 26.02.1996 passed by Civil Judge (Jr. Div.) Kasganj, the petitioners have agreed to leave 14 feet wide land for the egress and ingress of the police personal to the police station and inspite of that the petitioners have been stopped to raise their constructions. This fact has not been controverted by filing any counter affidavit. Thus, it comes out that the plaintiffs have parted with 14 feet wide land for the road of the police station. In these circumstances, it is difficult to believe that the petitioners who have left 14 feet wide strip of land for the user of the police personal, they would make any attempt to encroach upon the land of the police station itself. If after leaving the space for the road, the petitioners are raising their constructions to demarcate their land, it can not be said that they are encroaching upon the land of the respondents.

There is no definite assertion in the report of the Lekhpal that the plaintiffs are encroaching upon the land of the Government. The Lekhpal has simply observed that ''prima-facie'' it appears that the plaintiffs are raising constructions beyond their land. It is on the basis of this ambiguous report that the Sub Divisional Magistrate ordered for stopping the constructions without verifying the facts as to whether the plaintiffs are actually raising constructions beyond the limit of their land or not. It further appears that the defendants could not digest their defeat in the Civil Suit and hence, in order to harass the petitioners a malafide order was passed by the Sub Divisional Magistrate, Patiyali on 5.9.2000 for stopping the construction. This order being malafide and without any basis, is liable to be quashed.

The order passed by the Sub Divisional Magistrate, Patiyali on 5.9.2000 stopping constructions of the petitioners is hereby quashed.

Petition stands disposed of accordingly.