RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (CRIMINAL) NO. 231/2009 Ashok Kumar & Another …….Applicants Versus Addl. District Judge/FTC, Ist Dehradun And Others ……Respondents Mr. S.K. Jain, Advocate, for the petitioners. Mr. P.S. Bora, Brief Holder, for the State. Mr. Manav Sharma, Advocate, for the respondents no. 3/1 & 3/2. 4th August, 2011 Hon’ble Servesh Kumar Gupta, J. The challenge in this writ petition is to the order dated 16.1.2004 passed by the Additional District Judge/I FTC, Dehradun in Criminal Revision No. 38/2003. That revision was accepted by learned Judge whereby the order of Additional Sub Divisional Magistrate, Dehradun dated 3.6.2003 in case no. 1/2003, Narendra Singh v. Ashok & Others pertaining to PS Doiwala was set aside by the Additional Sessions Judge, Dehradun. 2. The dispute pertains to the agricultural land bearing khasra no. 691, 692 located in village Kurkewala and khasra no. 955 located in village Madhowala, Pargana Parvadoon, District & Tehsil Dehradun ad measuring 0.60 acre and 4.79 acre in the respective villages. It appears that this land once owned by Jeevan Ram who died on 24.4.1994. He had three sons Ashok Kumar, Vikram Singh and Narendra Singh. During his lifetime, he made a division of his above land through Will executed on 3.7.1986 as modified on 26.5.1987 and divided the same among his two sons Ashok Kumar and Vikram Singh while depriving Narendra Singh (3rd 2 Son) from the same. The share of Narendra Singh was given to his sons Nagendra and Nitin because in the opinion of Jeevan Ram, the habits of Narendra Singh were not ideal and in his opinion his life style might detrimental to preserve the heritage. 3. Narendra Singh feeling aggrieved moved an application on dated 1.10.1996 to the Superintendent of Police, Dehradun against his two brothers invoking his powers for direction of investigation regarding alleged crime committed by Ashok Kumar and Vikram Singh against him. The dispute between Narendra Singh on the one hand and petitioners on the other grew up taking the agricultural land into question. So the Sub Divisional Magistrate, Dehradun issued a notice on dated 29.1.1997 under section 145 CrPC placing his satisfaction on the report dated 16.1.1997 of the Station Officer, PS Doiwala and apprehended possibility of breach of peace due to the dispute among the brothers. He then after issued the order of attachment under section 146(1) CrPC and entrusted the possession over the entire land in dispute to one Jamil Ahmad on 4.2.1997. In case No. 14/97, Narendra Singh v. Ashok, the City Magistrate, Derhadun passed an order on dated 23.3.1998 whereby the order of attachment issued on 29.1.1997 was taken back and the entire proceedings under section 145/146 CrPC were dropped. This order of the learned City Magistrate was issued for the reason that meanwhile an injunction civil suit no. 300/96 was commenced by Nagendra and Nitin, sons of Narendra Singh against Ashok Kumar and Vikram Singh (uncles) which was decreed on dated 2.4.1998. Prior to the passing of the final decree on 2.4.1998, the learned Civil Judge (Jr. Div.) ad interimly passed the order to maintain the status quo at the time of institution of the suit and since the proceedings under section 145 and 146 CrPC had been dropped, so the 3 possession of the entire land which was entrusted to Jamil Ahmad was taken back by the police and handed over the same to Narendra Singh. This way Narendra Singh continued his possession over the entire land in dispute eversince after the dropping of the proceedings under section 145 and 146 CrPC and later-on the strength of order of status quo passed by the Civil Judge (Jr. Div.) in Civil Suit No. 300/96 which was ultimately decreed from the court of Civil Judge. 4. An appeal no. 26/98 was preferred against that judgment and order of the Civil Judge and the same was allowed on dated 1.8.2005 setting aside the judgment and order dated 2.4.1998 of the Civil Judge and the learned appellate court was of the view that there was no cause of action arose to Nagendra and Nitin and the suit in fact was instituted by Narendra Singh making his minor sons Nagendra and Nitin stand in the front just to harass the defendants Ashok Kumar and Vikram Singh. 5. Needless to say that learned Civil Judge (Jr. Div.) in a suit for injunction did not frame any issue regarding the fact of possession over the property in dispute and without making any such issue, passed not only the ad interim injunction but also finally decreed the suit of injunction against the defendants. Besides this, the only one major issue was framed as to what cause of action the plaintiff possesses against the defendants and upon this issue also the learned Civil Judge was of the view that no cause of action has arisen. The plaintiff could not prove any cause of action against the defendants. But surprisingly notwithstanding such finding by the Civil Judge himself in the body of judgment the suit was decreed. However, now that decree has been set aside vide judgment of the appeal as stated above. 4 6. Ashok Kumar moved an application before the Additional Sub Divisional Magistrate which was numbered as case no. 1/2003 praying that at the time of attachment of the disputed land in case no. 14/97 vide order of Sub Divisional Magistrate dated 29.1.1997, the same was entrusted to Jamil Ahmad and at the time of dropping of proceedings on 23.3.1998, the police has taken the land back from Jamil Ahmad and given the same in its entirety to Narendra Singh, while this land was attached from the joint possession of Ashok Kumar and Vikram Singh on the one hand and Nagendra and Nitin on the other hand. It was prayed that as per the description in the Will of their father Jeevan Ram, the land in dispute be given to the possession of each of the brothers as per their share and this prayer of Ashok Kumar was accorded by the learned Additional Sub Divisional Magistrate vide his order dated 3.6.2003. 7. The order of learned Sub Divisional Magistrate was challenged in revision no. 38/2003, decided by learned Additional District Judge vide his judgment and order dated 16.1.2004. Learned Additional District Judge accepted the revision and set aside the judgment and order dated 3.6.2003 passed by the Sub Divisional Magistrate. It is this order of learned Additional District Judge dated 16.1.2004 which has been sought to be quashed by issuing the writ of certiorari. 8. I have heard the learned Counsels of the either side and have perused the entire record. 9. It is pertinent to mention that on the date 16.1.2004 when the learned Additional District Judge accepted this revision, the appeal no. 26/98 was pending challenging the decree of Civil Suit of injunction No. 300/96 and the basis of allowing this revision was that matter was 5 sub judice in the civil court regarding the ownership and possession over the land in dispute and that had been adjudicated from the Civil Judge (Jr. Div.) in favour of Nagendra and Nitin. Learned Additional District Judge was of the view that keeping in mind the pendency of the matter in civil court (in the form of appeal), the learned Additional Sub Divisional Magistrate should not have passed the order dated 3.6.2003. In this regard, reliance has been placed by the learned Counsel of the petitioners upon the precedent of the Apex Court in Dharampal & Others v. Smt. Ramshri & others, 1993 AIR SC 1361, wherein it was held that proceedings of section 145 CrPC i.e. issuing of notice, enquiry thereupon and the attachment of the property under section 146 CrPC could have been withdrawn by the Magistrate if he was satisfied that there was no longer any likelihood of breach of peace with regard to subject of dispute notwithstanding the rights of the parties pending for final decision by the competent court of law and are sub judice. 10. Learned Additional District Judge has since observed that the question of possession and title over the property in dispute was sub judice in the court of appeal, so the Magistrate should have restrained himself from passing the order dated 3.6.2003. While on careful perusal of the judgment and order of Civil Judge (Jr. Div.) dated 2.4.1998, it is clear that it was not a suit of declaration of ownership. Even before passing an injunction order the Civil Judge did not bother to give a finding regarding the possession after making an issue upon this question and that judgment of the Civil Judge now has been set aside too by the appellate court vide his judgment and order dated 1.8.2005. So, the observation of learned Additional District Judge in the revision no. 38.2003, even if taken into consideration for a moment, now can be said 6 to have no substance and the conclusion of the judgment losses its base, thus deserves to be set aside. 11. In view of the above, the judgment and order of the learned Additional District Judge dated 16.1.2004 is quashed by issuing a writ of certiorari while the order of Additional Sub Divisional Magistrate dated 3.6.2003 is sustained. Station Officer, PS Doiwala will make compliance of the directions issued by the Additional Sub Divisional Magistrate vide his judgment and order dated 3.6.2003 in case no. 1/2003. (Servesh Kumar Gupta, J.) 4.8.2011 Prabodh