Mohammad Zafar vs State of U.P. and Others

G.D. Dube, J.—This revision has been preferred against the judgment and order of Sessions Judge, Bijnor, who has allowed the revision filed by opposite party No. 2 against the judgment and order of Sub-Divisional Magistrate, Chandpur, district Bijnor. The Sessions Judge has set aside the order of Sub-Divisional Magistrate and quashed the proceedings initiated by the learned Magistrate u/s 145 of the Code of Criminal Procedure (hereinafter referred to as the Code). The Sessions Judge has also directed that if the crop standing in the property in dispute had been sold in pursuance of the order of the learned Magistrate, then the sale proceeds be paid to the opposite party No. 2.

The applicant had moved an application on 28-3-89 before the Magistrate for initiating proceedings u/s 145 of the Code. He had alleged in the petition that one Smt. Shakooran widow of Chhiddu was the owner of the property in dispute. She was real aunt of the applicant. She had executed a will in favour of the applicant. The applicant had cultivated the land and a crop of wheat was standing. Since the opposite parties had threatened on 27-3-1989 that they will cut the crop, the applicant had apprehension that there will be a breach of peace. It transpires that opposite party Kaneeza filed an objection against the application. It was stated that in 1973 a litigation had taken place between the parties in revenue court in mutation proceedings in which the applicant had admitted the possession of opposite party No. 2. It was also alleged that the applicant, taking the benefit of poor pecuniary condition of apposite party No. 2 had initiated the proceedings. It was alleged that she was in possession and the applicant had no concern with the property. On these facts she had prayed for withdrawing the order dated 28-3-1989.

At this place, it would be worth mentioning that, after receipt of the application of the revisionist applicant, the sub-Divisional Magistrate had called for a report from the Station Officer concerned by 28-4-1989 and had also directed the police to maintain status quo in respect of the standing crop in the property in dispute. The Station Officer was also asked to inform the parties to appear on 18-4-1989. It transpires that on 12-4-1989 the parties were present. The learned Magistrate, after hearing the parties, came to the conclusion that there was an apprehension of breach of peace. Hence he directed that notice u/s 145(1) of the Code be issued and the crop standing on me land in dispute be attached u/s 145(8) of the Code. As against this order, the aforesaid revision had been filed before the Sessions Judge.

It has been argued that the alleged mutation had taken place in 1973. The compromise was a forged document and the revisionist had not entered into any compromise. The revisional court had erred in entering into appreciation of evidence. The learned Magistrate had rightly come to the conclusion that there was an apprehension of breach of peace. It was the satisfaction of the Magistrate which was material. He could come to this conclusion even if the police had not sent its report in pursuance of the order of the learned Magistrate dated 28-3-1989. Learned Counsel for the opposite parties has urged that since mutation had taken place, then it amounted to a decision of a court of competent jurisdiction within the meaning of Section 146 of the Code. The learned Magistrate should have dropped the proceedings u/s 146 of the Code. The Sessions Judge had only corrected the mistakes committed by the Magistrate by its impugned order. In support of his contention, learned Counsel for the opposite parties has relied upon Vinay Kumar v. Om Prakash 1980 ACR 4, and Ram Sumer Puri Mahant v. State of U.P. 1985 ACR 108.

In the case of Vinay Kumar (supra), it was held that mutation court is a court of competent jurisdiction within the meaning of Section 146 of the Code. It was held that a mutation court is fully competent to decide as to who is entitled to the possession of the property. Once this order has been passed, proceedings u/s 145 of the Code should be set aside. The facts of this case are quite different. In this case, the recorded tenure-holder had sold the land in favour of the applicant by means of a sale-deed dated 27-6-1975. Om Prakash the opposite party had filed an application u/s 145, Code of Criminal Procedure alleging that there was reasonable apprehension of breach of peace regarding possession. A preliminary order was thereafter passed on 16-2-1976 attaching the land. After the execution of the sale deed mentioned above, mutation proceedings had started. On 3-2-1978 the Board of Revenue decided the matter in favour of applicant Vinay Kumar. Accordingly the names of the applicants were recorded over the plots in dispute in village records. On these facts, the observations were made In this case, mutation is said to have taken place in 1973 whereas proceedings u/s 145 of the Code were started in April, 1989. Hence any decision of mutation court about sixteen years before the start of the proceedings cannot amount to a decision of a competent court in 1989. The proceedings of mutation are summary in nature. They cannot amount to a decision by a court having competence to decide the right and title of the parties. The fads in the case of Vinay Kumar (supra) were entirely different. During the pendency of proceedings u/s 145 of the Code, the mutation court had decided the question of possession. Therefore, on this basis, the Magistrate could proceed u/s 146 of the Code. The facts of the present case are quite different from the case of Vinay Kumar. The ratio of Vinay Kumar''s case cannot be applied to the present matter.

The case in Ram Sumer Puri Mahant (supra) is based on its own facts There a civil litigation was pending for the property wherein the question of possession was involved. It had been adjudicated and decided by the trial court. An appeal was preferred against the decree of the trial court. On these facts, the Supreme Court had observed that proceedings u/s 145 of the code could not be continued.

The above case laws do not support the contention of the opposite parties that proceedings u/s 145 of the code could not be initiated. However, the question remains whether the learned Sessions Judge was justified in quashing the order of the learned Magistrate, drawing a preliminary order u/s 145(1) of the code and attaching the crop u/s 145(8) of the Code. The learned Sessions Judge has given adequate reasons for his conclusion. The facts narrated above go to show that when the application had been moved on 28-(sic)-1989, the learned Magistrate was not at all satisfied that there was any breach of peace. He had called for a report from the police. Before the date fixed for submission of the report the learned Magistrate had passed the impugned order asking the parties to show cause u/s 145(1) of the code and attachment of the crop. The learned Sessions Judge could certainly not adjudicate about the satisfaction of the learned Magistrate but there ought to have been some material before the learned Magistrate on the basis of which he could have come to the conclusion that there was an apprehension of breach of peace. The order dated 12-4-1989 of the learned Magistrate does not indicate that he had any material before him except the affidavit of the applicant for Hs satisfaction that there was apprehension of breach of peace. He had himself admitted that on similar application he called for report and the report of the police had not been received by the time of passing of the order dated 12-4-1989. Earlier he had not deemed the application and affidavit sufficient. The opposite parties had clearly stated that in 1973 a litigation had taken place in which they were successful. The opposite party alleged that since before 1973 she was in possession. In view of these facts and particularly that earlier the learned Magistrate had asked the police to submit his report, the order of 12-4-1989 appears to have been passed in a hot haste. The learned Sessions Judge was fully justified in interfering with this order and quashing the proceedings.

The case of J.S. Chauhan v. Smt. Shakuntala Singh 1990 U.P. CR 62 is of no help to the revisionist. In this case it was observed that mutation proceeding will not preclude the sub-Divisional Magistrate from taking proceeding, in the case. It has been noticed above that there was no substantial material before the learned Magistrate to proceed u/s 145. The case law mentioned above is not applicable to the facts of this case.

No other point has been pressed.

The revision has no force. It is rejected.