MOHD NAZIR Vs. MOHD ASHRAF

JUDGEMENT

(1.) Preliminary order of the trial Magistrate, Additional District Magistrate, Rajouri dated January 18, 1989, initiating proceedings under Section 145, Criminal Procedure Code and the order attaching the property has been challenged by the petitioner herein with prayer to quash the same. It is submitted that preliminary order and the order of attachment is contrary to the provisions of law which apparently appear to be the result of non-application of mind, having been passed in a mechanical manner. It is submitted that the petitioners herein were the owners of land covered by survey Nos. 155, 159 situate in village Dhanore Dhindian Tehsil District Rajouri and continuously in possession of land covered by survey Nos. 134 and 135 which was owned by the State. The possession is claimed on the basis of the family partition between the parties. The respondents are alleged to be the step brothers of the petitioner who have manipulated the order impugned by statement of wrong facts.

(2.) I have heard the learned counsel for the parties and perused the record.

(3.) The respondent herein namely; Mohd. Ashraf and others filed a petition under Section 145, Criminal Procedure Code in the trial Court stating therein that they and the respondents were the real sons of Mohd. Sarwar and the petitioner was continuously in possession of the property since kharief 1971. It was submitted that the respondents in the trial Court were trying to take forcible possession from the petitioner herein on the basis of fabricated record. The khasra girdawari in kharief, 1988 pertaining to survey Nos. 134 and 135 showed that Mohd. Nazir and Mohd Azam petitioners herein were in possession of the said land unauthorizedly. Similarly khasra girdawari pertaining to khasra Nos. 155 and 159 showed that Mohd Nazir and Mohd Azam were in possession as co-sharers. No record appears to have been produced in the trial Court to show that the said property had fallen to the share of Mohd Ashraf, Ghulam Mohd and Mohd Yousuf on the basis of any alleged family partition. The trial Magistrate in the order impugned however referred to the alleged partition deed and held that the petitioners therein were in possession justifying initiation of proceedings under Section 145, Criminal Procedure Code. The orders impugned appears to have been passed without application of mind or reference to any documents, even prima facie showing Mohd Ashraf and others to be in possession of the property at the relevant time as contemplated by the provisions of Section 145, Criminal Procedure Code.