IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 1046 of 2006 Guljar Singh S/o Sri Ujagar Singh R/o Village Naugwan Thaggu Tehsil Khatima, U.S. Nagar ………. Applicant Versus 1. State of Uttaranchal 2. S.D. M., Khatima Distt: U.S. Nagar 3. Devi Dutt S/o Damaodar Prasad R/o Khatima Distt: U.S. Nagar ..…. Respondents Present : Sri B.S. Bisht, Advocate holding brief of Sri D.S. Patni, Advocate for the applicant. Sri G.S. Sandhu, learned G.A. present for the State/respondent No.1. Sri Tumul Nainwal, Advocate for the respondent No.2. Dated : 26th July, 2011 Hon’ble Servesh Kumar Gupta, J. Heard Sri B.S. Bisht, Advocate holding brief of Sri D.S. Patni, Advocate on behalf of applicant Guljar and Sri Tumul Nainwal, learned counsel for the respondent No.2/opposite party. Through this Criminal Misc. application, the order of Sub Divisional Magistrate, Khatima dated 11.12.2006 is under challenge with the prayer to set aside the same. Having heard learned counsel for both the parties, it appears that Village Naugaba Thhaggu is within the territorial jurisdiction of Police Station, Khatima District U.S. Nagar. There is a land of one bigha bearing Khasra No.381/4, whereupon the 2 ownership as well as possession has been claimed by the petitioner Guljar on the strength of agreement to sale dated 20.11.80. That agreement to sale was executed by a person named chotte S/o Baldev resident of village Mundeli, Tehsil Khatima for the consideration of Rs.1750/- which is received from Guljar and delivered the possession to him. Photocopy of this agreement to sale is an unregistered paper, while at the same time the opposite party Devidutt also claimed the possession of the land in dispute on the strength of sale deed executed by the same person on 11.06.83 with the consideration of Rs.1850 which is received from Devidutt. Even the photocopy of this sale deed is an unregistered paper one. The dispute raised when on the strength of the alleged agreement to sale to Sri Guljar, he started to raise the construction over the vacant land of one bigha which is appertaining to another land of Guljar. When resisted by Sri Devidutt, the quarrel started between the two. The police enquired the matter and submitted its report to S.D.M., Khatima dated 20.10.2000. As divulged in the police report, Sri Guljar started to take the land in his possession and dig the same for commencing his construction. At that time Chhote S/o Baldev resisted, so both were arrested by the police under section 151 Cr.P.C. Sri Guljar got a room constructed over the same giving rise the dispute more vividly between two. Once more, Guljar, in order to maintain the peace in the area, was arrested by police and he was challaned under section 107/116 Cr.P.C. So in above circumstances, the police recommended to S.D.M. for settlement the dispute of the said property by giving the possession to the third party. Pursuant to this police report, S.D.M., Khatima made an order under section 146 (1) Cr.P.C. which was challenged in the revision by Guljar in the Court of Sessions Judge. The Sessions Judge dismissed the revision. Sri Guljar filed a Writ Petition No.45 of 2002 under section 482 Cr.P.C. wherein this 3 Court quashed the order of learned Magistrate dated 09.08.2001 and order of Additional Sessions Judge dated 12.02.2002 with the direction to the S.D.M. Khatima to decide the case under section 145 Cr.P.C. of the Code on merit after giving the opportunity to the parties for adducing the evidence according to the law. The case was reheard by S.D.M. afresh and opportunity was extended to Devidutt as well as Guljar for adducing their evidence and after recording the witnesses of both the parties, learned Magistrate passed an order dated 11.12.2006, which has been directly challenged through this petition in this Court. The contention of learned counsel for the Guljar is that the court below has not considered the facts of the agreement to sale which was standing in his favour and statements of his witness have not been considered. While on the other hand, learned counsel for the Devidutt has apprised to the Court that taking the advantage of an interim order passed by this Court, staying the order of S.D.M. dated 11.12.2006, Guljar has raised further construction over the land in dispute and now, he is striving to search the purchaser of this land and going to sale the same very soon. Noticing this ill motive of Sri Guljar, Sri Devidutt rushed to this Court and got an interim order modified and this Court was pleased to pass an order to maintain the status quo at the spot. Learned counsel for Devidutt has filed so many photographs adverting the land in dispute whereupon it appears that new construction was going on. Having gone through the order of S.D.M., Khatima dated 11.12.2006, it appears that learned Magistrate has recorded and considered the evidence of both the parties very vividly & elaborately in his order. Certainly, there is a dispute not only of ownership but also of the possession over the land in question 4 which may give raise to breach of peace. It appears that there is no illegality and irregularity in the impugned order. Accordingly, this Criminal Misc. application has no force and is liable to be dismissed. Hence, this petition is dismissed. The impugned order is sustained. However, it is further made clear that the parties will be at liberty to get their title and valid possession to be declared by the competent court of civil jurisdiction. (Servesh Kumar Gupta, J.) JKJ 26.07.2011