- (1.) HARI Nath Tilhari, J. This petition application 482 of the Cr. P. C. has been moved by the applicant, who claims himself to be the owner in possession of the land described in paragraph 1 of the petition by boundaries and which has been alleged to bear municiple No. 486/56/2 having a Kothari and Tin-shed over it, for quashing of the proceedings of Case No. 43/92 (Mushtaq Hussain v. Mohd. Usman Hussain & Ors.) pending in the Court of 1st Additional City Magistrate, Lucknow, opposite party No. 2 as well as for setting aside or quashing the order dated January 14, 1992, Annexure No. 6 to the writ petition and order dated 13-4- 1992, Annexure No. 8 and has further prayed that the restoration of the possession of the property in dispute in favour of the applicant, be also directed to be made.
(2.) ACCORDING to applicant's case as alleged in the petition applicant claimed himself to be the owner of the property in dispute described in paragraph 1 of the application under Section 482 of the Cr. P. C. as land measuring 3800 Sq. Ft. surrounded by boundary walls and having Kothari and Tin-shed over it and bearing the municiple No. 4s6/56/2. The applicant has given the boundaries of the land in dispute as under: East - Land of Mohad. Azmat Azim in occupation of Jamil and Masroof West - Road North - Road South - Lane The applicant has asserted that the applicant's father Ikram Hussain was in possession of the land in dispute since the year 1948 and since after the death of his father Ikram Hussain, which did place in May, 1990, the applicant claims himself to be in continuous possession thereof. The applicant claimed his title by way of adverse posses sion over the property in dispute. According to applicant's case Smt. Hamida Khatoon had instituted a suit, namely, Regular Suit No. 203 of 1985 against the father of the applicant for arrears of rent and damages in which Qaji Ikram Hussain, the applicant's father filed a written statement on 25-8-86 claiming himself to be in actual possession of the land as the owner thereof since 1984 and claiming himself to be using the same as the land for stocking and selling fire-wood. According to applicant's case, the father of the applicant claimed his possession and user of the land in dispute and had denied, in that case, the allegations of Smt. Hamida Khatoon regarding her father possession over property in dispute and that suit was dismissed by the IXth additional munsif-Magistrate, Lucknow on 11-7-1988.
(3.) ACCORDING to applicant, on 31-12-91, Smt. Hamida Khatoon and Smt. Aniuman Bano opposite parties alongwith their associates Mohd. Islam Husain, Idil Rizvi and some others came to place of property to dispossess the applicant forcibly but due to timely intervention of the neighbour, they could not achieve their goal. In view of the above, on January 1,1992, Regular Suit No. 2/1992 Mohd. Mushtaq Hussain v. Smt. Hamida Khatoon & Ors. , was filed by the applicant in the Court of Munsif South, Lucknow alongwith application for interim injunction. In the suit, while filing the plaint, an application for temporary injunction was also moved by the petitioner which was granted by the Munsif-South in favour of the applicant and an interim injunction order was issued restraining the opposite parties from dispos sessing the applicant from the land in dispute. According to applicant, opposite parties 3 and 4 i. e. Mohd. Alam Hussain and Anjuman Bano, according to applicant's case, could not dispossess the applicant illegally so adopted tactic of harassing the applicant on one pretext on other and opposite parties 3 and 4 (Mohd. Islam Hussain and Anjuman Bano) with the help of the police Hasanganj submitted report dated 14-12-1991 before 1st Additional City Magistrate (I), Lucknow, opposite party No. 2 and opposite partey No. 2 i. e. 1st Additional City Magistrate, Lucknow on 14-1-1992 passed the preliminary order under Section 145 (1) of the Criminal Procedure Code to the effect that there exists a dispute about the possession regarding house No. 486/56/2 situate in Mohalla Thatheri Bazar, near Daliganj Railway Station, Police Station, Hasanganj, Lucknow and there is likelihood of the breach of peace being caused there by i. e. on account of the dispute and, therefore, he directed by that order that both the paties should appear on 31-1-1992 before the Additional City Magistrate, Lucknow concerned and put their written statement of their respective claims regarding or in respect'of their respective actual possession over the property in dispute. The order dated 14-1-1992 has been annexed as Annexure No. 6/7 to the application. According to the petitioner's case, no notices were issued to the applicant before passing of the order under Section 145 (1) of the Cr. PC. by the Additional City Magistrate, Lucknow, opposite party No. 2.;