B. K. Rathi, J. - (1.) -This is a petition to issue a writ in the nature of certiorari quashing the orders dated 30.12.1991 and 31.1.1992 passed by opposite party Nos. 1 and 2, Annexure-7 and Annexure-8 to the petition respectively, and to direct the opposite parties to restore back the possession of the property in dispute to the petitioner.
(2.) I have heard Sri S. U. Khan, learned counsel for the petitioner and Sri H. M. Singh, learned counsel for opposite party Nos. 3 and 5 and have gone through the record. The facts of the case are that one Smt. Tehjubinnisa was the owner of certain land. She transferred part of the land in favour of Smt. Basanti on 11.7.1977. Opposite party Nos. 3 and 5 are the successors of Smt. Basanti. A suit was filed by Smt. Tehjubinnisa for injunction against Smt. Basanti, which was Suit No. 398 of 1981 in which it was alleged that the disputed land was not sold by her, and she is in the possession over the same. Smt. Tehjubinnisa also moved an application for temporary injunction, which was allowed and Smt. Basanti was restrained from interfering in the possession of Smt. Tehjubinnisa over the disputed land by order dated 14.8.1981. Smt. Basanti filed Misc. Appeal No. 126 of 1981 against that order, which was allowed on 11.11.1987 and Smt. Basanti was held to be in possession of the said land and therefore, the application for temporary injunction (6-C) was rejected. Later on the disputed land was sold by Smt. Tehjubinnisa to the petitioner on 10.1.1983. However, the suit was dismissed for default on 9.12.1987. It is alleged that an application for restoration has been moved, but admittedly no order on that application has yet been passed and the suit has not been restored. In the meantime the proceedings under Section 145, Cr. P.C. started and a preliminary order under Section 145 (1), Cr. P.C. was passed on 9.3.1983. The property was also attached on 7.4.1983 under Section 146 (1), Cr. P.C. and those proceedings under Section 145, Cr. P.C. were dropped by an order dated 30.8.1985 on the ground that civil suit is pending, in which an order for injunction has been passed. It was also ordered that S.O. Kheta Sarai will deliver back the property in the custody of a person from whom it was taken. That if there is apprehension of breach of peace, he may start proceedings under Section 107/116, Cr. P.C. opposite party Nos. 3 and 5 preferred a criminal revision against that order, which was also dismissed on 16.9.1985. They also preferred a revision in the High Court but it was dismissed as withdrawn.
(3.) AFTER dismissal of suit on 9.12.1987 opposite party Nos. 3 and 5 moved an application that according to the judgment in Misc. Civil Appeal No. 126 of 1981 dated 11.11.1987 they were in possession of the property in suit. That, therefore, in accordance with the order of dropping the proceedings, they should be delivered possession of the land. That application was allowed by the learned S.D.M. by an order dated 30.12.1991. Criminal Appeal No. 2 of 1992 was preferred against that order by the petitioner, which was also dismissed by IIIrd Additional Sessions Judge, Jaunpur by an order dated 31.1.1992. The petitioner has prayed for quashing both these orders. Two contentions have been raised before me in this case. The first is that the Magistrate has no jurisdiction to review the earlier order dated 30.8.1985 by which the proceedings were dropped. The other contention is that the interim order was passed in Suit No. 398 of 1981 to operate till the pendency of the suit. That as the suit has been dismissed, therefore, the interim order has also become inoperative and on its basis, it cannot be held that the opposite parties were in possession of the disputed land.;