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CASE NO.: Appeal (crl.)  312 of 2008

PETITIONER: GYATRI & ORS

RESPONDENT: RANJIT SINGH & ORS

DATE OF JUDGMENT: 13/02/2008

BENCH: A.K.MATHUR & AFTAB ALAM

JUDGMENT: JUDGMENT

O R D E R  CRIMINAL APPEAL  NO.312  OF 2008 (Arising out of SLP(Crl.)No.3584 of 2006)                  We have heard learned counsel for the parties.         Leave granted.         This appeal by special leave is directed against the judgment and order  dated 26.5.2006 passed by the learned Single Judge of the High Court of  Judicature at Allahabad in Criminal Writ Petition No.2634 of 2006  whereby the learned Single Judge has allowed the writ petition and set  aside the impugned order passed by the Revisional Court and remanded  the matter back to the Revisional Court for deciding afresh on the basis of  direction given by the Court.   The brief facts which are necessary for  the disposal of this appeal are that a Writ Petition was filed by the  petitioner (Respondents herein) before  

                         -2- the Allahabad High Court praying to quash the order dated 21.2.2006  passed in Criminal Revision No.166 of 2004, Smt. gyatri and others versus  Ranjit Singh and others by the Additional Sessions Judge, Court No.3,  Banda whereby the revision was allowed and the impugned order passed  by the Court below  was set aside.  One Krishna Gopal Mishra and Mata  Prasad were  recorded bhumidhar of the plot in dispute No.1232, area 3  bigha and plot No.1233, area  4 bigha 17 biswas situated in village Attarra  Buzurg, Pargana and Tehsil Atarra, District Banda.  Thereafter, a forged  power of attorney was got executed in favour of Awadh Kishore allegedly  executed by Krishna Gopal Mishra and Mata Prasad.  On the ground of  forged power of attorney, Krishna Gopal Mishra lodged the   F.I.R. under  Sections 467, 468, 420, 504 and 506 of the Indian Penal Code (IPC), P.S.  Kotwali, District Banda.   The holder of the power of attorney Awadh  Kishore is the real brother-in-law of Rajesh Kumar, Respondent No.9 and  a sale deed was executed by him in favour of Raj Bahadur, Rajendra  Kumar, Rajesh Kumar and Vijay Kumar all sons of Ram Pratap.  On 17th  June, 1993, a registered sale deed had been  

                       -3- executed by Krishna Gopal Mishra himself in favour of  the respondents  Ranjit Singh and Raj Karan Mishra, who came in  possession over the  property in dispute.  Therefore, share of Krishna Gopal Mishra was firstly  transferred by the holder of the power of attorney and same was again  transferred by the owner of the property of Krishna Gopal Mishra.   Therefore, dispute arose  between both the vendees of the sale deeds.  An  application was moved on 13th June, 2003 on behalf of the respondents in  the Court of S.D.M. upon which the report was called from the concerned  police station.  Similarly, report was also summoned from the Tehsildar at

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the instance of the respondents and police submitted the challan under  Sections 107/116 and 145 of the Criminal Procedure Code (Cr.P.C.)   Tehsildar also submitted a report with regard to the mutation.  Rajendra  Kumar Sharma started constructing shops on the disputed land with the  help of his companions because they themselves wanted to raise  construction upon the land.  Therefore, a breach of peace between both the  parties arose.  The S.D.M. concerned passed a preliminary order under  Section 145(1) Cr.P.C. as well as the attachment order under Section  146(1) Cr.P.C.

                          -4-         After appearance, an application on behalf of  the appellants was moved  which was rejected vide order dated 12th July, 2004 by S.D.M.  Aggrieved  by this, the legal representative of Raj Bahadur Sharma, Rajendra Kumar  Sharma, Smt. Manju Sharma, Vikas and  Vivek  filed Criminal Revision  No.166 of 2004 before the Additional Sessions Judge.  Learned Additional  Sessions Judge by Order dated 21st February, 2006 quashed the order of  the S.D.M. Similarly, the order of attachment and supurdaginama  regarding disputed land was also quashed and directed that the possession  be given to the revisionist upon the disputed land.  Thereafter, Ranjit and  others filed a writ petition before the High Court.  The High Court after  considering the writ petition came to the conclusion that the learned  Additional Sessions Judge has gone wrong in quashing the proceedings  under Section 145 as well as the order of attachment and  supurdaginama.   Aggrieved against this order the present appeal was filed before this Court.   Learned counsel for the appellant submitted that in fact the matter relating  to rights of the parties with regard to this dispute was disposed of on 31st  January, 2003  

                        -5- by the Assistant Consolidation Officer and decreed the suit of the  appellant before us.  Against that order, an appeal has been filed by the  respondents before the Settlement Officer (Consolidation) under the U.P.  Consolidation of Holdings Act, 1953.  No stay order was granted in the  stay petition filed along with the appeal by the respondents herein.   Learned counsel has submitted that as the rights of the parties have  already been decided by the Assistant Consolidation Officer under the  U.P. Consolidation Act, 1953 and appeal is pending and no stay order has  been granted, therefore, in view of this position, the continuation of the  order passed under Section 145 and 146 cannot survive and the view taken  by the Additional Sessions Judge is correct.  As against that, learned  counsel for the respondents submitted that the Assistant Consolidation  Officer does not decide the rights of the parties.  It only decides with  regard to the revenue entries.  In this connection, our attention was invited  to Section 9 of the U.P. Consolidation  of Holdings Act, 1953.  We have  perused Section 9 of the Act and find that Section 9 only show the relevant  extracts from the  

                        -6- current annual register and other records showing their rights and  liabilities in relation to the land and specific shares of the individual  tenure-holders in joint holdings for the purpose of effecting partitions to  ensure proper consolidation, valuation of the plots and the valuation of  trees, wells and other improvements for calculating compensation.   Therefore, this prima facie reflect the rights of the parties.  Learned  counsel for the respondents submits that it does not decide the rights of the  parties and it is not a civil proceeding.  We have perused Section 9 of the  Act and we find that as per Section 9, the rights of the parties relating to  the land are determined by the Consolidation Officer after hearing  the  parties and that decides the rights of holding of this land under this Act.  Both parties were heard by the Assistant Consolidation Officer and he has  passed the order in favour of the appellant (herein).  An appeal has already

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been filed by the respondents herein therefore continuation of these  proceedings under Section 145 cannot survive now.  This Court in the case  of Amresh Tiwari versus Lalta Prasad Dubey and another reported in 2000  (4) SCC 440 has taken the view that continuation of these proceedings  under  

                         -7- the preliminary order will not be maintainable when the civil suit in respect  of same property is pending.   Similarly, in the case of Ram Sumer Puri  Mahant versus State of U.P. & Ors. reported in 1985 (1) SCC 427 similar  view has been taken that the initiation of proceedings during the pendency  of civil litigation involving the question of possession of the same property  is not justified.  Therefore, when the proceedings have already been taken  under the U.P. Consolidation of Holdings Act, 1953 and the order has  already been passed by the Assistant Consolidation Officer on 31st March,  2003 which was brought to the notice of S.D.M. Therefore, these two  parallel proceedings cannot be continued.           However, any observation made by us will not prejudice the appeal filed  by the respondents herein under U.P. Consolidation of Holdings Act,  however so far as these proceedings are concerned, they cannot survive as  regular proceedings have already been initiated under the Consolidation  Act. Hence, we allow this appeal, set aside the order of the High  

                         -8- Court and leave the parties to prosecute their remedy before the  consolidation authorities.         No order as to costs.