RAVI PRAKASH JAIN Vs. ADDL. DISTRICT MAGISTRATE
LAWS(UTN)-2012-6-62
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
Decided on June 15,2012

Ravi Prakash Jain and Others Appellant
VERSUS
Addl. District Magistrate (FAndR)/Dy. Director of Consolidation and Others Respondents

JUDGEMENT

- (1.) Heard Mr. Keshri Nath Tripathi, Senior Advocate assisted by Mr. Lok Pal Singh and Mr. Tapan Singh, Advocate for the petitioners and Mr. M.C. Bansal, Advocate for respondent Nos. 3 to 9. In this writ petition filed by the petitioners two orders dated 22.11.1993 passed by the Consolidation Officer and the other order dated 25.9.1995 passed by the Deputy Director of Consolidation in revision are presently under challenge. All the same, before we come to these orders and the challenge to the legality of these orders, a brief history of the case is necessary.
(2.) The case has a rather chequered history. The genesis of it is an agreement to sale executed by one Sri K.K. Bhatiya alleging himself to be the Manager and the Power of Attorney holder of the present petitioners. It is alleged by the respondents that an agreement for sale was executed by Sri K.K. Bhatiya in their favour on 12.1.1977 by which about 89 acres of land situated in Tehsil Kashipur, District Nainital (as it was then) was agreed to be given to the respondents on a total consideration of Rs. 4,45,000/- out of which at the time of agreement for sale, sale consideration of Rs. 3,50,000/- was given by the respondents to Sri K.K. Bhatiya. The respondents came in possession of the present disputed land on the basis of this agreement for sale claimed their possession on the land since 12.1.1977. Four different suits were filed by the plaintiffs seeking injunction against the present respondents, in the year 1978 in the Court of Munsif, Kashipur. During the pendency of the said suits, proceedings under Section 145 Cr.P.C. were also initiated before the concerned authorities and in that proceedings under Section 145 Cr.P.C. an order for attachment was passed for the first time on 12.5.1978. This order for attachment was challenged by one of the present respondents in revision. The said older for attachment was set aside and consequently a revision was preferred by the present petitioners before the High Court of Judicature at Allahabad and following orders were passed by learned Single Judge of Allahabad High Court in that criminal revision on 23.2.1979. All these revisions are allowed. The impugned orders passed by the Sessions Judge on 6th June, 1978 are hereby set aside and that of the trial court restored. So far as the appointment of receiver to take over charge of the property is concerned, that power cannot be delegated to the Station Officer Kashipur. The Magistrate concerned should himself appoint a suitable person as a receiver during the continuance of the proceedings under section 145 Cr.P.C. The record of the case shall be dispatched to the court below within 2 weeks today to enable speedy disposal of these cases.
(3.) In other words, the order of the court below was set aside by the High Court and the order for attachment earlier passed in the said proceeding was revived with the modification that appointment of receiver should not have been left with the police but the court itself should have appointed the receiver. These proceedings under Sections 145 and 146 Cr.P.C. though came to an end by an order dated 27.3.1987 passed by a learned Single Judge of Allahabad High Court. This was done without making any categorical finding on possession as the Hon'ble Court was of the view that between the same parties a suit for title and possession is already pending as a second appeal before the Board of Revenue and it is better that the matter be finally settled there itself.;


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