Javed and Another vs State of U.P. and Others

O.P. Garg, J.—In this application u/s 482, Code of Criminal Procedure, it is prayed that the order of attachment dated 6.7.1996 passed in proceedings u/s 145. Code of Criminal Procedure be stayed in respect of the property which is admittedly in possession of the applicants.

Counter and rejoinder-affidavits have been filed. Heard learned Counsel for the applicants as well as learned Counsel for opposite party Nos. 2 and 3, besides, the learned A.G.A.

The dispute relates to a plot of land, being plot No. 65, admeasuring 10 Bigha, 18 Biswas and 14 Biswansis, situate in village Salai Pargana and Tahsil Hapur, district Ghaziabad. This land was admittedly owned by one late Ishaq who executed a Will on 12.4.1983. It is alleged that in pursuance of the Will, half share in the plot aforesaid was bequeathed in favour of applicant No. 1, Javed, son of Kalian; l/6th share in favour of Smt. Anwari widow of predeceased son Mahfooj; 1/3rd share was bequeathed in favour of Masooman daughter of deceased Ishaq. The opposite party Nos. 2 and 3, namely, Rais Ahmad and Nafees Ahmad are sons of Masooman, who predeceased Ishaq, who had executed the Will. There was dispute about the possession over the aforesaid land. On the application of the opposite party Nos. 2 and 3, a police report was called and after taking into consideration the report of the local police, a preliminary order u/s 145(1), Code of Criminal Procedure was passed. By invoking the emergency provisions, the entire plot No. 65, the boundaries of which are given in the order, was attached on 6.7.1996 u/s 146(1), Code of Criminal Procedure. The applicants alleged that the opposite parties have no share in the aforesaid plot of land as Smt. Masooman had predeceased Ishaq. It was also urged that the southern portion of the plot is in possession of the opposite party Nos. 2 and 3 while the remaining portion towards the northern side is in possession of the applicants, and, consequently, the order of attachment in respect of the entire land of plot No. 65 is bad in law. In substance, the case of the applicants is that the dispute raised in the proceeding u/s 145, Code of Criminal Procedure is with regard to the southern portion of the land and, if at all, an order of attachment could be passed, it could be only in respect of the said portion. By interim order dated 6.8.1996, this Court directed that the proceeding u/s 145, Code of Criminal Procedure in case No. 4 of 1996 pending in the court of Sub-Divisional Magistrate. Hapur (Ghaziabad) shall remain stayed insofar as it relates to the applicants, and the property which is not in dispute according to the police report, shall be released and the possession thereof shall be handed over to its owner. In the counter-affidavit, the opposite parties have asserted that the dispute relates to the entire land of plot No. 65 and that the order of attachment had been passed in respect of the entire land of the said plot. It was also pleaded that the order of attachment has been given effect to and the attached land has been given in the Supardgi of one Zakir, Ex-Pradhan of village Sultanpur. It is also alleged that Smt. Masooman died after the death of Ishaq and the assertion of the applicants to the contrary is wrong.

The moot point for consideration is whether the order of attachment passed u/s 146(1), Code of Criminal Procedure encompasses within its ambit the entire land of plot No. 65 or only a southern portion thereof. The police report is Annexure 3 to the application. In this report, it has been mentioned that the entire land of Ishaq is in dispute and, therefore, proceeding u/s 145, Code of Criminal Procedure be initiated in respect of the entire land, over which there was standing crop. The order of attachment passed u/s 146(1), Code of Criminal Procedure pertains to the entire land of plot No. 65, the boundaries of which have been given. The attached land has been given in the Supardgi of Zakir, Ex-Pradhan of the village, through Supardaginama. Annexure C.A. 2 to the counter-affidavit of the opposite party Nos. 2 and 3. Therefore, the submission on behalf of the learned Counsel for the applicants that the proceedings u/s 145, Code of Criminal Procedure were initiated with regard to the southern portion of the land, is not correct. The police report relates to the entire land of late Ishaq and on the basis of the report of the police, proceedings u/s 145, Code of Criminal Procedure were initiated in respect of the entire land left by Ishaq and in respect of which, he had executed the will. The order of attachment also takes within its sweep the entire land of plot No. 65.

The question as to which of the parties is in possession of the land in dispute cannot be decided on an application u/s 482, Code of Criminal Procedure in the absence of evidence. The parties have to appear before the learned Sub-Divisional Magistrate, who had initiated the proceedings and after taking evidence of the parties, appropriate orders are required to be passed by the learned Magistrate. No interference by invoking inherent powers of this Court is warranted in this matter. The application u/s 482, Code of Criminal Procedure fails and is liable to be dismissed.

In the result, the application is accordingly dismissed and the interim order dated 6.8.1996 is vacated.