- (1.) G. P. Mathur, J. This petition was filed under Section 482, Cr. P. C. for quashing of the final order passed in a proceeding under Section 145, Cr. P. C. on an earlier date of hearing i. e. 13-9-90, an application was move by the applicants for converting the present petition under Article 226 of the Constitution of India in view of the Full Bench decision of this Court given in case of H. K. Rawal v. Midhi Prakash, 1989 ALJ 73. The applicants have supplied requisite court-fee. The application was allowed and the petition has been heard as a writ petition.
(2.) THE Police of P. S. Balua gave a report on 22-6-79 before the S. D. M. Chandauli, Varansi that there was apprehension of breach of peace between the petitions on the one hand and respondent Nos. 2 to 4 on the other hand, with regard to possession over certain immovable property. On being satisfied that there was apprehension of breach of peace, learned S. D. M. passed a preliminary order under Section 145 (1), Cr. P. C. on 28-6-79 and directed the parties to appear on 4-7-79 and lead evidence in support of their claim. THE disputed property was described as plot No. 780/2, Bamboo clumps situate in plot No. 780/3, plot No. 763 and one Jack fruit tree situate in plot No. 756. THE parties appeared before the learned Magistrate and, adduced oral and documentary evidence in support of their case. After consideration of the evidence, learned Magistrate held that first party (respondent Nos. 2 to 4) was in possession over the disputed property on the date of passing of the preliminary order and two months prior thereto. He accordingly restrained the second party (petitioners) from interfering in the possession of the first party over the disputed property till the decision of a competent Court regarding title of the parties. Against the aforesaid judgment and order dated 27-7-79 of the S. D. M. , Chandauli, the second party filed a revision but the same was also dismissed by the learned 3rd Additional Sessions Judge, Varanasi by his judgment and order dated 11-11-87. THE petitioners have challenged the aforesaid orders dated 27-7-1987 of the S. D. M. and 11-11-1987 of the 3rd Additional Sessions Judge, Varanasi by means of the present petition. The learned Counsel for the petitioners has urged that the first party (respondent Nos. 2 to 4) had not claimed the Bamboo Clumps situate in plot No. 780/3 in the written statement filed by them and as such, the impugned orders passed by the learned S. D. M. as well as learned Adi. Sessions Judge holding that the First party was in possession over the aforesaid property is wholly illegal. This petition was heard on 13-9-90 and the petitioners were directed to produce certified copy of the written statement of this first party. Cer tified copy of the written statement of the first party has been produced by the learned Counsel for the petitioner on the date of hearing of the petition on 23-4-91. A perusal of the written statement of the first party will show that the contention raised by the learned Counsel for the petitioner is not correct. In para-land 10 of the written statement, it is clearly stated that the first party was owner of the disputed property and the same was in their possession. It is also stated that the second party had neither any concern nor in possession over the same. The relevant portion of the written statement which is in Hindi reads as follows: Para-1.- "yeh KE JAIDAD NIZAI PRATHAM PAKSHA KE MILKIYAT HAI AUR DWITIYA PAKSHA SE KOYE VASTA SAROKAR JAIDAD NIZAI NA KABHI RAHA HAI NA" HAI AUR NA TO UNKA KABHI KABZA RAHA HAI. . . . . . . . . " Para-10 - "yeh KE JAIDAD NIZAI MILKIYAT BA KABZA FARIQ AWWAL HAI. . . . . " It is, therefore, clear that the first party had specifically asserted to be owner in possession of the entire property in dispute in the written statement and had further pleaded that the second party was neither owner, nor was in possession over the same. It is true that in other paragraphs of the written statement, reference has been made to plot No. 780/2, 763 and Jack fruit tree over plot No. 756 and no specific reference has been mad'" to Bamboo clumps over plot No. 780/3, but the written statement has to be read as a whoxc. Since the first party claims to be the owner of the entire property in dispute, which also includes Bamboo clumps over plot No. 780/3, in para-1 and 10 of the written state ment, it cannot be said that it had not laid any claim to the aforesaid Bamboo clumps. The contention raised by th learned Counsel for the petitioners has, therefore, no force. Learned Counsel further contended that the petitioners had led evidence to show that they were in possession over plot No. 780/3 and this evidence had not been properly considered by the learned Magistrate. Learned Counsel for the contesting respondents (first party) has, however contended that Khasra of 1380-Fasli, which has been filed by the second party itself, showed that plot No. 780/3 was included in plot No. 763. Accord ing to the learned Counsel, the evidence adduced by the second party itself showed that plot No. 780/3 had no independent existence, but was part of plot No. 763 and since the learned Magistrate had recorded a clear finding that the first party was in possession over plot No. 763, it follows therefrom that plot No. 780/3 has also been found to be in possession of the first party. The copy of Khasra 1380-Fasli, which had been filed by the petitioners before the learned Magistrate, has been filed as Annexure-CA-1 to the counter affidavit filed by the contesting respondents. In this document, it is clearly men tioned that plot No. 780/3 is included in plot No. 763. It is, therefore, obvious that plot No. 780/3, had no independent existence, but was part of plot No 763. Since the learned Magistrate had found the first party to be in possession over plot No. 763, it follows therefrom that plot No. 780/3 was also found in possession of the first party. Thus the conention raised by the learned Counsel that the learned Magistrate has not considered the evidence adduced by the petitioners, cannot be accepted.
(3.) IT may also be mentioned in this context that plea was not raised by the petitioners either before the learned Magistrate or before the learned Addl. Sessions Judge in revision. The petitioners cannot be allowed to raise disputed question of fact, for the first time, in a writ petition under Article 226 of the Constitution of India. It was next contended on behalf of the petitioners that the evidence adduced by the petitioners in support of their claim over Jack fruit tree situated over plot No. 756 has not been properly considered by the learned Magistrate. The learned Counsel placed strong reliance upon an order dated 16-7-70 passed by Tehsildar, Chandauli in a proceed ings under Rule 115-C of U. P. Z. A. and L. R. Rules and the order dated 4-3-1976 passed by the Consolidation Officer, Chandauli in case No. 2523 (copies of which have been filed as Annexures-1 and 2 to the supplementary, affidavit ). In support of that case. The order dated 16-7-70 of the Tehsildar shows that proceedings under Rule 115-C of U. P. Z. A. and L. R. Rules with regard to plot No. 756 were dropped on the ground that question of title was involved. The order dated 4-3-1976 of the Consolidation Officer shows that petitioners Ram Surat had not been able to lead any evidence with regard to their title. The operative portion of the order shows that entry with regard to plot Nos. 754 and 756 was directed to be expunged. In none of these orders any finding had been recorded with regard to the title of the petitioners over the Jack fruit tree situate in plot No. 756, nor there is any finding regarding petitioner's possession. The finding recorded by the learned Magistrate with regard to Jack fruit tree in plot No. 756 cannot be said to be suffering from any vice or infirmity.-;