R.H. Zaidi, J. - (1.) BY means of this petition under Article 226 of the Constitution of India, petitioners pray for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 21.8.1989, passed by Respondent No. 1. directing for attachment of the property in dispute under Section 146(1), Code of Criminal Procedure and giving the same in the Supardagi of Superdar till dispute between the parties are decided by the competent civil Court, and the order dated 7.10.1989, whereby the revision filed by the applicants against the aforesaid order, was dismissed by the revisional Court.
(2.) PRESENT petition arises out of proceedings under Section 145, Code of Criminal Procedure The dispute related to the land measuring 14.43 acres consisting of five plots situated in villages Lakesar pargana, Tehsil and district Kheri, and in village Laksaria of the same district. The land in dispute was originally owned by Smt. Munni Devi, who died on 25.10.1985 leaving behind two married daughters, Smt.A.Cr.R. 63 Tankunna and Smt. Vishesh Kumari and one son Ajai Kumar Singh besides the Petitioner Nos. 1 to 5 who are sons of Smt. Bari Bittan alias Udai Raj Kumari, who died during the life time of Smt. Munni Devi. After the death of Munni Devi dispute with respect to said property arose amongst her heirs. Police of the circle vide its report dated 11.4.1989, reported to Respondent No. 9 Addl. Sub -Divisional Magistrate, Lakhimpur Kheri that there was dispute between the parties with respect to the possession of the land in dispute, and there existed apprehension of breach of peace. On the basis of the said report Addl. Sub -Divisional Magistrate issued preliminary order fixing 22.3.1988 for appearance of the parties. The Magistrate concerned, thereafter, directed for attachment of the wheat crops standing in the land in dispute on 27.4.1989. Parties to the dispute, thereafter, put in their appearance. Respondent Nos. 1 to 3, filed their written statement claiming that the land in dispute was originally owned by Late Jagmohan Singh, who according to them, executed a Will dated 16.3.1943 bequeathing property in dispute in their favour. The petitioners have claimed that actually they were owners in possession of the property in dispute, on the basis of Will dated 11.1.1978 alleged to have been executed by Smt. Munni Devi. It was pleaded that the Petitioner and Respondent Nos. 6 and 7, were in possession of the said land. They have also claimed that on the basis of the said Will, they have applied for mutation of their names and the dispute regarding mutation was pending before competent revenue Court. Parties produced evidence in support of their cases. The Addl. Sub -Divisional Magistrate after going through the evidence on record, directed attachment of the property in dispute under Section 146(1) Code of Criminal Procedure till the dispute is decided by a competent Court. Aggrieved by the judgment and order, referred to above, petitioners filed revision before Respondent No. 10. The revisional Court affirmed the findings recorded by Respondent No. 9, upheld its order and dismissed the revision by its judgment and order dated 7.10.1999, hence the present petition. Learned Counsel for the petitioners vehemently urged that at the time of initiation of proceedings under Section 145, Code of Criminal Procedure , mutation proceedings were pending disposal before competent revenue Court and in the meanwhile Vishesh Kumari, Respondent No. 6 also filed a suit for declaration of rights under Section 229B and Section 209 of the U.P.Z.A. and L.R. Act. Therefore, there was no justification for the Magistrate concerned, to initiate proceedings under Section 145, Code of Criminal Procedure . therefore, not only the impugned orders but the entire proceedings were liable to be quashed.
(3.) ON the other hand, Learned Counsel for the contesting respondents supported the validity of the impugned orders. It was urged that there was dispute with regard to the possession over the property in dispute and also apprehension of breach of peace. Police, therefore, rightly reported for initiation of proceedings under Section 145, Code of Criminal Procedure The Courts below rightly dealt with the matter and decided the same in accordance with law. Reliance was placed by Learned Counsel for the Respondent, upon the decision in R.H. Bhutani v. Miss Mani J. Desai : AIR 1968 SC 1444, in support of his submission.;