Ganga Singh vs State of U.P. and Others

Ashok Srivastava, J.—This revision has been filed against the judgment and order dated 11.9.2002 passed by learned Addl. Sessions Judge, Budaun in Criminal Revision No. 01 of 2002 Ram Avtar and Ors. v. Ganga Singh and Anr. It should be mentioned here that original revisionist, Ganga Singh, has died and his legal representatives have been brought on record. It has further been worth mentioning here that Respondent Nos. 2,3 and 4 have sold away the property in dispute to Smt. Jagwati, Smt. Maya Devi and Yashpal Singh who had moved an application before this Court for impleadment on 20.4.2010 being Crl. Misc. Impleadment Application No. 112080 of 2010. In paragraph 2 of their affidavit attached to the impleadment application these three persons have said that they have purchased the properties in dispute through registered sale deeds and now they have stepped into the shoes of original Respondent Nos. 2, 3 and 4. After hearing the parties and perusing the records the impleadment application is allowed. The present revisionists are directed to implead these three persons namely Smt. Jagwati, Smt. Maya Devi and Yashpal Singh as opposite party Nos. 5, 6 and 7.

According to the revisionist one Bankey Lal was the original owner of the land in dispute. Bankey Lal was issueless and he did not have any brother or sister. He lived with the original revisionist Ganga Singh and had given physical possession of the land in dispute to him who was cultivating the same on "Batai" basis. Ganga Singh also looked after Bankey Lal properly and keeping in view the services rendered by Ganga Singh to him, Bankey Lal executed a will in respect of the disputed properties in favour of Ganga Singh.

On the other hand it is the case of opposite party Nos. 2 to 4 that one Sewa Ram was the real Bhanja of Bankey Lal and Sewa Ram was the only legal heir of the deceased Bankey Lal. Sewa Ram was the father of opposite party Nos. 2 and 3 and father-in-law of opposite party No. 4. It should be mentioned here that the husband of opposite party No. 4, Ram Naresh, has already died.

In the above set of factual circumstances, Ganga Singh on one hand and opposite party Nos. 2 to 4 on the other hand were claiming ownership of the disputed property. A civil suit was filed but during the pendency of the said suit, consolidation proceeding started in the said village and as a consequence the suit abated under the provisions of Section 5(2) of the U.P. Consolidation of Holdings Act. The record shows that till date the ownership of the property in dispute has not been decided finally by a court of competent jurisdiction.

It appears that a dispute arose on the spot and an apprehension of breach of peace had taken place. Therefore, the opposite party No. 2 moved an application before the S.D.M. concerned u/s 145 Code of Criminal Procedure against the revisionist. The learned S.D.M. called for a report from the police and after being satisfied, an order of attachment of the property in dispute was passed under Sub-Section 1 of Section 146 Code of Criminal Procedure on 2.8.1999. The property remained attached and after conclusion of the proceedings u/s 145 Code of Criminal Procedure the learned S.D.M. vide his order dated 24.12.2001 held that disputed property was in actual possession of the revisionist Ganga Singh on the relevant date and therefore he directed that the said property be released to the custody of the revisionist and at the same time he further directed that no one should interfere with the possession of Ganga Singh. Feeling aggrieved by the said judgment and order, opposite party Nos. 2 to 4 moved the court of learned Sessions Judge through a revision which was transferred to the court of learned Addl. Sessions Judge, Court No. 7, wherefrom it was disposed of. The learned Addl. Sessions Judge allowed the revision and quashed the order passed by the learned Magistrate on 24.12.2001. He further directed that the status of the attached property shall remain the same which existed on 2.8.1999 and this status quo is to continue till a court of competent jurisdiction decides the ownership of the property in dispute. The Addl. Sessions Judge has further directed that the learned S.D.M. should take back the possession of the property in dispute from Ganga Singh and hand the same over to some independent receiver. He further directed that any income, if accrued, from the said properties, shall be kept with the State and shall be disbursed when the ownership is finally decided.

From perusal of the order passed by the learned S.D.M., Bilsi, Budaun, it is evident that before passing his order the learned S.D.M. had considered various factual aspects of the case. He had examined the statements of the witnesses recorded before him. He had also examined various documents produced before him. The conduct of the parties was also observed by him. In these circumstances what he had written in his judgment were his findings based on appreciation of various kinds of evidences. After perusal of the order passed by the Addl. Sessions Judge it appears that instead of passing a judgment of revision, he has written a judgment of appeal which is not permitted. It has been clearly held by the Apex Court in Jabar Singh Vs. Dinesh and Another, . that a court of revision cannot convert itself into a court of appeal. Therefore, the interference in the factual aspect of the case was unwarranted. The learned lower court was competent only to look the aspects relating to legality or illegality of the order passed by the learned S.D.M. but the Addl. Sessions Judge has exceeded his jurisdiction.

On the basis of the above discussion I am of the view that the order passed by the Addl. Sessions Judge cannot be allowed to stand and his liable to be set aside.

As a consequence, the revision is allowed and the judgment and order dated11.9.2002 impugned herein is quashed and set aside. Let the lower court record be sent back to the courts concerned.