Indra Kaushik And 3 Ors. vs State Of U.P. And 2 Ors.

1. Heard Sri Akhilesh Srivastava, learned counsel for the accused-revisionist and Sri Raj Kumar Kesari, learned counsel for opposite party no. 3 to 6 and Sri G.P. Singh, learned A.G.A.

2. This Application under Section 482 Cr.P.C. no. 27977 of 2015 has been moved by the applicants for quashing the order dated 04.09.2015 passed by opposite party no. 2 in Case No. 1 of 2005( Ramesh Kumar vs. Indra Kaushik, P.S.. Hapur, District Hapur under section 146 (1) Cr.P.C. by which the house in dispute no. 1607 has been attached.

3. The facts of this case as per affidavit filed in support of the application are that the opposite party no. 3 (1st Party before the opposite party no. 2 SDM Hapur) had filed an application stating that Indra Kaushik wife of Late Ravindra Kumar, resident of 114/4, Arya Nagar, Suraj Kund Road, Meerut, P.S. Civil Lines, was married to Dr. Ravindra Kumar Sharma, son of Rajesh Dayal Sharma, who is alive. Their daughter Shivangi was married to Nitin Kumar Sharma, son of Prem Kumar Sharma resident of Bhatipura, P.S. Kithaur, district Meerut about 2-3 years ago. Opposite party nos.3's brother's name was also Ravindra Kumar Sharma, who had died 18 years ago regarding which applicant no. 1 had full knowledge but in order to usurp the property of his deceased brother she, despite her husband being alive, showed him dead and got forged Adhar Card prepared and with the help of the same got her name registered in the revenue papers/records on the house no. 1670, Devlok Colony, Hapur of his deceased brother. She also sold this house in a forged manner in favour of Indrajit Singh, the applicant no. 3, Satendra applicant no. 2 both sons of Sukhpal Singh, residents of village Tatarpur, District Hapur and Sumit Kumar, applicant no. 4 son of Sukhvir resident Allipur Maghalpur, Hapur despite she having no right to alienate the said property. The cost of the said house was Rs.40.00 lacs but the same was sold for a meagre amount of Rs.14.00 lacs regarding which he had made a complaint concerning less stamp having been used in the said transaction on 26.5.2015. The applicant no. 1 was a Assistant Teacher in village Phapura but has been shown falsely to be house wife in Adhar Card. Her son Shivanshu has been shown as a business man in Adhar Card while he was student of Class XII. Her daughter Purnima has been shown as a house wife though she was a student. Thus, in a forged manner, after getting the false Adhar Card prepared, the sale deed was executed regarding which a complaint was made by the opposite party no. 3 and his other brothers at P.S. Kotwali, Hapur but his report was not lodged, hence an information was sent to higher authority in this regard but even then no action was taken. The anti-social elements have grabbed the entire house hold-goods which were kept in the said house and have taken possession of the same and when he resisted, he was being given threat to life, therefore, he prayed in this application that the house belonging to the opposite party no. 3, which has been sold by committing fraud by applicant no. 1, Indra Kaushik, should be returned to opposite party no. 3.

4. The applicants had thereafter filed an affidavit in the court of opposite party no. 2 narrating therein the real facts of the case and also stated therein that the enquiry reports submitted by Naib Tehsildar, Hapur was partial. Naib Tehsildar in his report dated 17.6.2015 has recommended to take action against the person concerned for breach of peace in which he has mentioned that Shivanshu Sharma, son of Ravindra Kumar Sharma, Shivangi and Purnima Sharma, daughters of Ravindra Kumar Sharma and Smt. Indra Kaushik, applicant no. 1 wife of Ravindra Kumar Sharma, resident of 114/4 Arya Nagar, Meerut executed a sale deed on 21.5.2015 of one house situated in Dev Lok Colony, Hapur in favour of Satendra Kumar, Sumit Kumar and Indrajeet Singh (Applicant nos. 2 to 4). Ravindra Kumar Sharma, son of Chandrabhan Sharma, who was the owner of this house, died on 21.8.1947. The complaint made by opposite party no. 3 Ram Kumar Sharma is that the names of his deceased brother Ravindra Kumar Sharma son of Chandrabhan Sharma and Indra Kaushik's husband were one and the same person and she had remained in the said house as a tenant also for some time, therefore, taking advantage of this, showing her husband dead, she got a forged Adhar Card prepared of her own and her children and sold his brother's house. The house no. 1607, Dev Lok Colony, Hapur is owned by Ravivndra Kumar Sharma son of Chandra Bhan Sharma who was an advocate by profession. In this colony, half portion of house no. 16 was purchased by Dr. Ravindra Kumar Sharma, son of Rajeshwar Dayal Sharma in 1997, which was sold by him in the year 2013 and both the sale deeds were separately executed, whereon both Ravindra Kumar Sharma are different and their signatures are also different. On the basis of statement of Ram Kumar Sharma, opposite party no. 3, his brother Ravindra Kumar Sharma, son of Chandrabhan Sharma was married to Indu Vats, who belonged to Rajasthan against wishes of the family members, who after demise of his brother, went back to Rajasthan. He has further recorded in his report that Indra Kaushik, applicant no. 1 told him that she was married to Ravindra Kumar Sharma, son of Chandrabhan Sharma, who was an advocate and out of the wedlock, three children were born namely Shivanshu, Shivangi and Purnima. She was a teacher posted in Phaphund and was living in House No. 114/4, Arya Nagar Meerut with her children since 2006. She also told him that Dr. Ravindra Kumar Sharma son of Rameshwar Dayal Sharma was her acquaintance, who had three sons and a daughter and name of his wife was Vineeta Sharma who died 1-2 years ago although death certificate of her is not enclosed. It is further mentioned in the report that the applicant no.1's mother's name is recorded as Sushila Devi and in her descendant, the name of her daughter is registered as widow, which appears to be separately added because when the original copy was asked for, the same could not be submitted. In the birth registration of Shivangi Sharma, her father's name is Ravindra Kumar Sharma, profession advocate. It is further recorded in the said report that on 21.5.2015 in the sale deed executed in respect of the disputed house by applicant no. 1, she has been shown as house wife, his son Shivanshu as a businessman and in her own statement, she has admitted to be a teacher while Shivanshu is admitted to be a student. In a receipt deposited in Canera Bank in Kamdhenu Deposit Scheme, Indra Kaushik wife of Dr. Ravindra Kumar Sharma, resident of House No. 114/7, Arya Nagar, Meerut is endorsed. The date of birth of Shivanshu Sharma in Adhar Card and another document is recorded as 1.12.1998 while Ravindra Kumar Sharma son of Chandrabhan Sharma had died on 21.8.1997 and thus the date of birth of Shivanshu was recorded 15 months after his death. In admission application pertaining to admission in St. Thomas Primary School, the name of father of Shivangi Sharma is recorded as R.K. Sharma, profession service, on 17.7.1998. It is further recorded in the report that as of now the applicant no. 1 was residing in Meerut in house no. 114/7, Arya Nagar which was purchased by Ravindra Kumar Sharma son of Rameshwar Dayal Sharma in 2005, who is alive as of date and his signatures are also found on the said sale deed. The signatures made by the father of Shivangi Sharma on her admission form of St. Thomas Primary School as well as on sale deed are the same. In the B.Tech. enrollment form of Purnima Sharma, d/o Indra Sharma, applicant no. 1, signatures of her father Ravindra Kumar Sharma are the same which are found on the form of Purnima Sharma, who took admission in Mahamaya Technical University, Noida. In the student registration form of Shivanshu Sharma in Shanti Niketan Vidyapeeth, the name of his father is recorded as Ravindra Kumar Sharma, profession service (doctor) and the signatures are the same which are made by Ravindra Kumar Sharma, son of Rameshwar Dayal Sharma. Further, it is recorded in the report that when the applicant no. 1 was asked for photograph of their marriage with Ravindra Kumar Sharma, she could not provide any photo except that of Ravindra Kumar Sharma in riding on a mare. Ravindra Kumar Sharma, son of Chandrabhan Sharma had purchased a plot on 27.12.1991, the house constructed on which is disputed. On the said sale deed the signatures made by Ravindra Kumar Sharma are different from the signatures which were made on the documents of the children of applicant no. 1. It is also recorded that the applicant no. 1 has not shown her husband as deceased in any other documents except the sale-deed and her one photo is also found planting sapling in school.

5. After having cited the above piece of evidence, the Naib Tehsildar has concluded that on the basis of the entire evidence and statement, it was apparent that the owner of the disputed house was Ravindra Kumar Sharma, son of Chandrabhan Sharma while Ravindra Kumar Sharma son of Rameshwar Dayal Sharma was a doctor by profession. The applicant no. 1 was known to both Ravindra Kumar Sharma. On the document of children of the applicant no. 1, the signatures are available of Ravindra Kumar Sharma son of Rameshwar Dayal Sharma as their father. Thus, the father of the children of applicant no. 1 is Ravindra Kumar Sharma son of Rameshwar Dayal Sharma, hence the sale deed of house in dispute, bearing no. 1607 Dev Lok Colony, Hapur dated 21.5.2015 was executed by fraud in order to effect breach of peace.

6. After taking into consideration the above report of the Naib Tehsildar, case no. 1 of 2015 was registered under section 145 (1) Cr.P.C and notices under section 145 (1) Cr.P.C. were issued on 23.6.2015 without considering the affidavit dated 5.6.2015 filed by the applicant in which it is recorded that as per report of Naib Tehsildar, Hapur, the opposite party no. 2 was satisfied that there was likelihood of breach of peace in respect of possession over the disputed property and directed both the parties i.e. applicant no. 1 (second party before the SDM) and opposite party no. 3 Ram Kumar Sharma (first party before the SDM) to appear on 30.6.2015 to adduce evidence written and oral in respect of their possession and ownership of the disputed property. It is further mentioned in the affidavit that without recording the satisfaction about the attachment, the opposite party no. 2 vide impugned order dated 23.6.2016 has attached the residential house no. 1607 situated in Dev Lok Colony Hapur. Aggrieved by the order dated 23.6.2016, the applicant no. 1 preferred Criminal Revision in the court of Sessions Judge, Hapur, which dismissed the same vide order dated 25.6.2015 holding that the revision was not maintainable against the order under section 145 Cr.P.C. Thereafter, feeling aggrieved by the order of attachment dated 23.6.2015, the applicant no. 1 filed Crl. Misc. Application No.18921 of 2015 (Indra Kaushik vs. State of U.P. ) before this Court and after consideration, this court was pleased to allow the application vide order dated 10.6.2015 and quashed the proceedings and matter was remanded back to the SDM, Hapur with a direction to consider the claim of all the parties, to whom notices were issued by him and to decide the matter afresh by a reasoned and speaking order expeditiously preferably within a period of three months. The basis of passing this order appears to be that the court was convinced that the Naib Tehsildar had not given any such finding that none of the parties were in possession of the subject matter in dispute nor was there any dispute between the parties with respect to the possession and the SDM has passed the said order in hasty manner.

7. In pursuance of the said order of High Court, an application was moved by the applicant no. 1 to open the seal of the house in question but at the objection of the respondent no. 2, the seal could not be opened and a report was submitted on 14.8.2015 that since applicant no. 1 was not present at the spot, the seal of the house in dispute should not be opened and the report of Naib Tehsildar dated 14.8.2015 in on record at page-58 of the paper book. In this report, it is recorded that in pursuance of the High Court's order and the consequent order passed by SDM, Hapur dated 1.08.2015, the Naib Tehsildar and his team had gone to the disputed property for opening the seal of the said house but at the instance of opposite party no. 3 and his family members saying that till the owner of the house and his brother's wife namely Indra Kaushik does not reach the spot, seal of the house would not be allowed to be opened and hence compliance of the order of High Court as well as of SDM's order could not be done and also reported that there was likelihood of breach of peace.

8. A report was submitted by Naib Tehsildar before the opposite party no. 2 seeking direction as to who was entitled for delivery of possession after the release of the house, whether Indra Kushik (applicant no. 1) or subsequent purchasers i.e. applicant nos. 2 to 4 or opposite party no. 3. But ultimately the possession of the house in question was handed over in favour of subsequent purchaser i.e. the applicant no. 4 Sumit Kumar on 25.8.2015. The proof of handing over the possession of the house has been annexed as Annexure-10 which is at page 61-A. Further, in the affidavit it is mentioned that without any order of the SHO, P.S. Kotwali, Hapur submitted a report before the opposite party no. 2 in collusion with the opposite party no. 3 indicating therein that there was apprehension of breach of peace over the property in question, which is at page 63-A. SHO concerned has also submitted before opposite party no. 2 that in compliance with the order of High Court, Allahabad, possession had been handed over in favour of the subsequent purchaser by revenue team consisting of Naib Tehsildar and Kurk Amin. At the time of transfer of possession, there was peace at the spot and it was also reported that no further action was left to be taken but there was apprehension of breach of peace since contradictory reports were submitted. The said report is annexed at page 65-A of the paper book. Incharge Inspector has also submitted its report dated 31.8.2015 that proceedings under section 107 and 116 (3) Cr.P.C. may be initiated, report is annexed at page-68 of the paper book. However, it was also mentioned in the same that the proceedings with respect to ownership of the disputed house were pending before the Civil Court and after enquiry from the persons lived in vicinity, it came to knowledge that there could be breach of peace. The subsequent purchaser/applicant no. 4 also moved an application dated 16.7.2015 for release of the property in question, in his possession and also for providing him opportunity of hearing but the opposite party no. 2 without considering the evidence available on record, has attached the house in question under section 146 (1) Cr.P.C. by the impugned order dated 04.09.2015.

9. In the said order it is recorded that Naib Tehsildar, Hapur in his report dated 25.8.2015 has stated that in compliance with the High Court's order dated 10.7.2015, the disputed property has been released from attachment but there was full possibility of breach of peace, therefore, the house was required to be attached and be given in supurdugi of some one else. From the side of opposite party no. 3, Ram Kumar Sharma, an application dated 28.8.20018 was again given on which a report was obtained from Incharge, Hapur Nagar in which it is mentioned that the house no. 1607, Dev Lok Colony, Hapur has been released in compliance with the High Court's order on 25.8.2015 regarding which report dated 27.8.2015 was sent to Court. The said house is disputed, concerning which proceedings are pending before the Court. An enquiry was held on the spot and persons living in the vicinity, had brought to the knowledge that there was tension prevailing between the parties and breach of peace could take place any moment. A direction was given to Incharge Inspector to maintain peace, to obtain bonds of both the sides under section 107/116 Cr.P.C. and 116 (3) Cr.P.C. so that in future no breach of peace may take place. It is further recorded in the order that on the basis of report of police station Kotwali and having perused the affidavit, it was found that there was tension prevailing between the parties in respect of house no. 1607 Dev Lok Colony and any moment breach of peace could take place. In this regard, first party on 3.7.2015 and second party on 30.6.2015 had submitted their written statement and therefore, finding himself in agreement with the report of Incharge, P.S. Kotwali Hapur Nagar, opposite party no. 2 expressed opinion that the disputed property would require to be attached in the interest of justice. Accordingly, exercising jurisdiction under section 146 (1) Cr.P.C., the opposite party no. 2 passed an order of attachment of the property and directed the same to be given in supurdugi of independent person and submit a report within three days after compliance of the said order. Copy of the said order was sent to SHO, Hapur for compliance. It is further mentioned in the affidavit that the applicant no. 1 has filed original suit no. 238 of 2015 on 10.7.2015 seeking cancellation of will deed dated 24.10.2013 allegedly executed by the husband of applicant no. 1 in favour of his father. It is further mentioned that said property was self owned property of the husband of the applicant namely, Ravindra Kumar Sharma on the basis of the registered sale deed dated 27.12.1991. After the death of her husband, she and her minor children became owner of the said house and thus the applicant no. 1 was well within her right to execute the registered sale deed dated 21.5.2015 in favour of applicant nos. 2 to 4. It is further stated that the possession of the said house was handed over to the applicant nos. 2 to 4. After the said sale deed, mutation of their name was also done in Nagar Palika Parishad, Hapur. The electricity connection was also in the name of Ravindra Kumar Sharma and later on the electricity connection was transferred in the name of applicant no. 4. The subsequent purchaser/applicant nos. 2 to 4 have filed original suit no. 271 of 2015 (Sumit Kumar and others vs. Ram Kumar Sharma and others) seeking therein injunction in respect of house in question on 27.8.2015 in the court of Civil Judge (S.D.) Hapur where the application of interim injunction is pending. Further, it is mentioned that the opposite party no. 3 has also filed original suit no. 260 of 2015 in the court of Civil Judge (S.D.), Hapur on 13.8.2015 wherein also an application for temporary injunction was moved and in the said suit relief of permanent injunction as well as for cancellation of registered sale deed dated 21.5.2015 were made.

10. Main contention of opposite party no.3 is that the applicant no. 1 is not the wife of late Ravindra Kumar Sharma, in fact, after the death of Ravindra Kumar Sharma, her in-laws started torturing, the applicant no. 1 and they concocted a false story that the applicant no.1 was not wife of late Ravindra Kumar Sharma. It was apparent from the perusal of record i.e. voter list and other documents that the applicant no. 1 was wife of Ravindra Kumar Sharma and out of the wedlock, three issues were born namely, Shivangi Sharma, Purnima Sharma and Shivanshu Sharma. The applicant no. 1 has been appointed as a teacher in place of her deceased mother, as widow daughter. The opposite party no. 3 had lodged an FIR against the applicant no. 1 and her children being case crime no. 618 of 2015 under section 420, 467, 468, 471 and 120-B IPC on 08.04.2015 and after investigation, the Investigating Officer has submitted final report holding that the allegations were fake and fictitious and that the proceedings were initiated in order to grab the property of late Ravindra Kumar Sharma and his family members with an intention to harass the applicant no. 1 and her children. This Court vide order dated 10.7.2015 had directed the opposite party no. 2 to decide the matter afresh after providing opportunity of hearing to the parties concerned but in violation to that the opposite party no. 2 has passed the impugned order of attachment on 04.09.2015 without affording opportunity of hearing to the applicant no. 1 and to subsequent purchasers applicant nos. 2 to 4. It is also apparent that the rights of the parties are still to be adjudicated in original suit nos. 283 of 2015, 271 of 2015 and 260 of 2015, thus the impugned attachment order was erroneous. Unless rights of the parties are decided by a competent court, attachment order cannot be passed. It is also mentioned that law is settled by the Apex Court that proceedings under section 145, 146 Cr.P.C. are not maintainable once the civil suit has been filed for proper adjudication of the rights of the parties. The subsequent purchasers i.e. applicant nos. 2 to 4 were in possession over the property in question since 21.5.2015 and at the date of proceedings under section 145, 146 Cr.P.C, they were in possession of the house in question, subsequently under order passed by this Court, the possession was handed over in favour of subsequent purchaser on 25.8.2015 but under collusion with opposite party no. 3, a report was obtained from SHO and Naib Tehsildar by opposite party no. 2 and without providing opportunity of hearing to applicant nos. 2 to 4, an attachment order has been passed. The impugned attachment order has not been acted upon till date and the applicant nos. 2 to 4 are still in possession over the house in question. Once the house in question was released in favour of subsequent purchasers, under no circumstance the property could have been attached by opposite party no. 2. Ingredients of section 145 and 146 are not fulfilled. The opposite party no. 2 had fixed 2.9.2015 as the date for evidence but on 25.8.2015 for the reasons best know to him, passed the impugned order dated 04.09.2015 without fixing any date in the order sheet and hence the same needs to be quashed.

11. From the side of opposite party no. 3 counter affidavit has been filed in which it is stated that his real brother of Ravindra Kumar Sharma son of Chandrabhan Sharma who had purchased the plot no. 16 area 105 sq.yards by registered sale deed dated 27.12.1991 from one Satya Pal Singh, which was eastern side of the said plot. Thereafter, he constructed a house on the said land which was numbered as House No. 685 in Nagar Palika Parishad, Hapur which was again renumbered as 1607, Dev Lok Colony, Hapur and the sale deed is annexed. It is further mentioned that western portion of the said plot area 100 sq. yards was purchased by one Dr. Ravindra Kumar Sharma son of Rameshwar Dayal Sharma, who is the husband of applicant no. 1, by registered sale deed dated 04.03.1997, the sale deed is annexed. The said Dr. Ravindra Kumar Sharma had sold the said plot on 22.5.2013 to Sri Arvind Kumar Tyagi, copy of the sale deed is annexed. The said Dr. Ravindra Kumar Sharma was in service in Parag Dairy. The applicant no. 1 was married to him and was residing with him at house no. 114/4, Arya Nagar, Meerut and out of the wedlock, three children namely, Shivanshu Sharma, Shivangi Sharma and Purnima Sharma were born. The brother of opposite party no. 3 died on 21.8.1997, death certificate is annexed. One son of applicant no. 1 Shivanshu Sharma was born on 1.12.1998 i.e. 15 months after the death of Ravindra Kumar Sharma son of Chandnrabhan Sharma, younger brother of opposite party no. 3. The said age of Shivanshu is entered in school register and Adhar card. Shivangi Sharma, d/o Dr. Ravindra Kumar Sharma was admitted in St. Thomos School. In her admission form the name of father of Shivangi has been mentioned as R.K. Sharma and his profession has been shown as service, and no where it has been written therein that the father of Shivangi Sharma had expired and was advocate, on the contrary it was shown that her father was alive and was in service. It is further mentioned that from the record, it is established that the applicant no. 1 was residing with R.K. Sharma at house no. 114/4, Arya Nagar, Meerut which was purchased by him in 2005. It is further mentioned that the signatures of Dr. Ravindra Kumar Sharma son of Rameshwar Dayal Sharma on the sale deed and the admission form of Shivangi are one and the same. Similarly in B.Tech. Enrollment Form of Purnima Sharma, daughter of applicant no. 1 and Dr. Ravindra Kumar Sharma son of Rameshwar Dayal Sharma, the name of father is mentioned as Ravindra Kumar Sharma and and signature on the said form is of Dr. Ravindra Kumar Sharma. It is further mentioned that the signature of brother of opposite party no. 3 Ravindra Kumar Sharma son of Chandrabhan Sharma on the sale deed dated 27.12.1991 is totally different from the signature existing on the documents of children of applicant no. 1 pertaining to their admission while the signature on the documents pertaining to children of applicant no. 1 are tallying with the signature of Dr. Ravindra Kumar Sharma, son of Rameshwar Dayal Sharma. The applicant no. 1 had also made a claim of share in the property of Ravindra Kumar Sharma son of Chandrabhan Sharma in agricultural holding situated in village Poalli, Tehsil Sardhan, District Meerut but her claim was rejected by Tehsildar (Judicial) vide order dated 10.8.2015. The opposite party no. 3 has no knowledge as to whether any appeal has been preferred or not against the said order. It is further mentioned that in a fixed deposit receipt made in Canara Bank, the applicant no. 1 had opened an account showing herself as wife of Dr. Ravindra Kumar Sharma, resident of 114/4, Arya Nagar, Meerut. Playing fraud upon Tehsildar (Judicial), Sardhana, the applicant no. 1 filed an affidavit in proceedings under section 34 of UP ZA&LR Act to the effect that she had only one son namely Shivanshu Sharma while she had three children. She is working as Assistant Teacher in primary school, Phaphunda-1 in Meerut. In child care leave, she had shown only two children regarding which complaint was made against her. As regards applicant nos. 2 to 4, it is mentioned that they are Bhumafia having criminal antecedents as three FIRs have been lodged against the applicant no. 4. It is further mentioned that proceedings under section 145 Cr.P.C. were initiated after a detail report was submitted by Naib Tehsildar upto the District Magistrate on 17.6.2015. The applicant no. 1 has played fraud and has tried to take undue advantage of similarity in the name of the brother of opposite party no. 3 with her husband and she had succeeded in illegally procuring certain document in support of her claim. It is further mentioned that she has nowhere shown her address as the house in dispute. Everywhere she has been showing herself to be wife of Dr. Ravindra Kumar Sharma but only in the sale deed which has been executed by her in favour of applicant nos. 2 to 4, she has shown herself to be wife of Ravindra Kumar Sharma. Her husband Dr. Ravindra Kumar Sharma is still alive. Naib Tehsildar has submitted correct report dated 17.6.2015 after due enquiry which is based on material on record. It is further mentioned that the seal of the house was not required to be opened as no such direction was given by the High Court. No actual and physical possession of the house in dispute was handed over to the applicant no. 1. Earlier a report was obtained by giving custody to the purchaser behind the back of the opposite party no.3 but no actual and physical possession of the said house was handed over to the applicant no. 1 and as there was apprehension of breach of peace, an application no. 107/116 Cr.P.C. was filed. The subsequent purchasers are not entitled for release of the property in their favour as neither applicant no. 1 nor applicant nos. 2 to 4 were in possession of the disputed house. Since the applicant no. 1 was never in possession of the house in dispute there was no question of possession being handed over to the applicant nos. 2 to 4 i.e. subsequent purchasers. Application for mutation and electricity connection bill which has been filed by applicant nos. 2 to 4 were filed behind the back of opposite party no. 3. The electricity connection was always continued in the name of the brother of opposite party no. 3. Filing of suit by opposite party no. 3 for cancellation of sale deed is matter of record. In the criminal case filed by him against the applicant, final report has been procured by them on extraneous consideration. It is wrong to say that the impugned order dated 4.9.2015 has been passed without affording opportunity of hearing to the applicants and that the attachment order has been rightly passed. The opposite party no. 3 was in sole possession of the disputed house. Therefore, possession was liable to be delivered to him. The applicant no. 1 and subsequent purchasers were never in possession of the said property. The impugned order of attachment has been given effect to and the property has been attached on 11.9.20155 before passing of the interim order. There was no collusion with the Inspector. There was great apprehension of breach of peace, hence the impugned order is justified.

12. Since the matter relates to the dispute of possession and ownership of house no. 1607 cited above regarding which two Crl. Revision being Crl. Revision No.168 of 2016 and Crl. Revision No.866 of 2016 have also been filed, therefore, the facts of these cases are also to be taken into consideration simultaneously and it would be appropriate to hear all these three cases together and disposed them of by single order.

13. In Crl. Revision No. 168 of 2016, an order dated 22.12.2015 passed by opposite party no. 2, Sub Divisional Magistrate in case no. 1 of 2015 (Ram Kumar Sharma vs. Indra Kaushik) under section 145 Cr.P.C. P.S. Kotwali Hapur, had been challenged whereby it has been directed that the opposite party no. 4 Ram Kumar Sharma son of Chandrabhan Sharma, r/o 1607, Dev Lok Colony, Hapur (first party before S.D.M.) had remained in possession of the disputed house and Indra Kaushik, applicant no. 1 (2nd party before SDM), wife of Ravindra Kumar Sharma, resident of 114/4, Arya Nagar, Surajkund Road, Meerut and subsequent purchasers namely, Satendra Kumar (applicant no. 2), Sunit Kumar (applicant no.4), Indrajit (applicant no. 3) would not make any interference in the peaceful possession of opposite party no. 4. It was further directed that if the possession of any person is found on the said property, the said possession would be got vacated and the possession would be handed over to opposite party no.4. The copy of the order was transmitted to Incharge, Inspector Kotwali, Hapur and Tehsil, Hapur for carrying out the said direction within one week and submit a report.

14. In this revision grounds are taken that the impugned order is illegal which has been passed without taking into consideration that Application u/s 484 No.27977 of 2015 (Indra Kaushik vs. State of U.P.) was pending before High Court in which interim order dated 16.9.2015 has been passed directing issuance of the notice to the opposite parties and till the next date of listing, the order dated 4.9.2015 was directed to be kept in abeyance. Therefore, interim order was still continuing. The present impugned order dated 22.5.2015 has been passed by the opposite party no. 2 despite the knowledge of the interim order dated 16.9.2015 passed in Crl. Misc. Application u/s 482 NO.27977 of 2015, it has been passed without taking into consideration that the applicant no. 1 was wife of Ravindra Kumar Sharma, who had died on 21.8.1997 and after death of her husband, opposite party no. 4 and his brothers visited the applicant no. 1 for the house in question which was self owned property of her deceased husband and after the death of her husband, she had shifted to Meerut and was tenant in the house of Dr. Ravindra Kumar Sharma son of Rameshwar Dayal Sharma. Due to financial crises, the applicant no. 1 had executed registered sale deed dated 21.5.2015 in favour of applicant nos. 2 to 4. The opposite party no. 4 and his brothers have filed original suit no. 260 of 2015 for cancellation of the sale deed which is pending. Rest of the facts are more or less the same which have been narrated while narrating the facts in Application u/s 482 Cr.P.C. No. 27977 of 20015.

15. It would be pertinent to give details of the impugned order which is assailed in the present proceedings. In the impugned order, all the facts which have been narrated above, have been mentioned and in the discussion part of the order, it has been mentioned by the trial court that in the present case the main point for determination is as to whether on the date when proceedings under section 145 Cr.P.C were initiated i.e. 23.6.2015, which party was in possession. In this regard, it is recorded that Indrajit and others (applicant no. 3) had mentioned in the written submission that there was no apprehension of breach of peace in respect of disputed property and it was also mentioned that if there was possibility of any dispute arising, the proceedings could be initiated under section 107 Cr.P.C. The parties had submitted their written statement, by perusal of which, it comes to light that the dispute between them is with respect to disputed property. Indra Kaushik (applicant no. 1) has written in her submission that she was living in Arya Nagar, Surajkund Road Meerut and the same fact was verified by Naib Tehsildar, Hapur in his report that at present she was not living in her house and as regards, the sale deed whether the same is null & void, is a matter of fact which can be decided only by civil court. From the evidence available on file, the sale deed which was executed from the side of the Indra Kaushik and others, the same has been fraudulently executed by representing herself as wife of Ravindra Kumar Sharma son of Chandrabhan Sharma, who had died on 21.8.1997, who was an advocate by profession. The real husband of applicant was Ravindra Kumar Sharma son of Rameshwar Dayal Sharma, who was doctor by profession because the second party i.e. Indra Kaushik never lived in the disputed house, therefore, no question arises to deliver possession of the said property to the purchasers of the same. In sale deed dated 21.5.2015, the delivery of possession is recorded wrongly. From the side of first party i.e. opposite party no. 4, the documents with respect to possession have been presented which are strong proofs. As many as 54 documents have been produced such as electricity bill, house tax receipt etc., on the basis of which the opposite party no. 4 has prima-facie proved himself to be legal heir of his deceased brother Ravindra Kumar Sharma son of Channdrabhan Sharma. The name of the father of the first party i.e. the opposite party no. 4 and that of the deceased Ravindra Kumar Sharma is one and the same which proved that two months prior to issuing notice under section 145 (1) Cr.P.C., the first party i.e. the opposite party no. 4 was in possession of the disputed house and therefore it would be justified that he should only continue in possession of the disputed house and accordingly the impugned order was passed which is stated above.

16. The Criminal Revision No. 866 of 2016 has been preferred by Ram Kumar Sharma, who was Opposite Party in above-mentioned cases against the Judgment and order dated 21.03.2016 passed in the same Case No. 1 of 2015 under Section 145 Cr.P.C., P.S. Kotwali, District Hapur.

17. In the impugned order, it is mentioned that the present proceeding is being initiated on an application dated 29.01.2016 moved by Sumit, O.P. No.6, Satendra, O.P. No.4 and Indrajeet, O.P. No.5 in which they have stated that by judgment and order dated 22.12.2015, the possession of the disputed property has been got delivered to Ram Kumar (applicant) while prior to that, possession on the said house/disputed house was that of the persons in whose favour sale-deed was executed. Against the order dated 22.12.2015, a Criminal Revision was preferred in High Court being No. 168 of 2016 in which after hearing both the parties, the Court passed the order dated 20.01.2016 staying the operation of the order dated 22.12.2015, therefore, the compliance of the order of the High Court is required to be done and, therefore, it was prayed that in compliance with the order of the High Court dated 20.01.2016, the status which existed as on 22.12.2015 should be restored and the property in dispute was directed to be kept in possession of the applicants i.e. (O.P. Nos. 4 to 6).

18. On the said application, information/notice was sent to both the parties and after service of it, parties have appeared before court in objection against the said application. From the side of first party, it was mentioned that the said application has been given by Sumit, Satendra and Indrajeet (subsequent purchaser of the property) with ill intention, in Case No. 1 of 2015 under Section 145 Cr.P.C., P.S. Hapur. After passing of the order of the High Court, the S.D.M. has finally decided the matter vide judgement and order dated 22.12.2015, therefore, in the said case no other order can legally be passed. Admittedly after the passing of the order dated 22.12.2015 by Court, the applicant Ram Kumar Sharma has been delivered possession of the said property and in this regard, the applicants i.e. O.P. Nos. 4 and 5 had full knowledge right from the beginning at the time of filing Revision No. 168 of 2016. The applicants had full knowledge about the said facts, therefore, the said application is not maintainable and deserves to be dismissed.

19. After hearing both the parties, the Court has recorded in the impugned judgment that after having perused the file and evidence on record, it is found that in compliance with the order of the Court dated 22.12.2015, direction has been given for delivering the possession to the applicant of the disputed house against which a Criminal Revision No. 168 of 2016 was preferred in which order dated 20.01.2016 was passed by which order, order dated 22.12.2015 passed by the then S.D.M., Hapur was stayed and it was directed that the application be decided after giving opportunity to both the parties. From the documentary evidence available on file, it is apparent that disputed property, prior to the order dated 22.12.2015 was in supurdagi of subsequent purchaser and in compliance with the order dated 22.12.2015, the applicant (first party) Ram Kumar Sharma was delivered possession. Order of the then S.D.M., Hapur dated 22.12.2015 was stayed by the order of the High Court dated 20.01.2016, therefore, looking to the fact that the dispute is pending before the High Court as well as in the Civil Court with respect to the disputed party, therefore as of now it was recorded that it is not desirable to take back possession of the said property from Ram Kumar Sharma (applicant) to be given to the subsequent purchaser again and it appears justified to drop the proceeding but on the basis of above analysis, the S.D.M. has further recorded in the order that the applicants i.e. O.P. Nos. 4 to 6 be again given possession of the disputed property and that because of the dispute being pending before the High Court as well as Civil Court, the proceeding of this case are closed. Further it is recorded that if any interim order is passed by the High Court and Civil Court, the same would be complied with as directed. It is next recorded that copy of this order be sent to the Tehsildar, Hapur as well as to the P.S. Kotwali for compliance and consigned the file.

20. Above order has been challenged by the revisionist, Ram Kumar Sharma on the ground that earlier O.P. No.2 had given possession to the revisionist after thorough enquiry by Tehsildar on 17.06.2006. It has been wrongly mentioned in the impugned order that prior to the order dated 22.12.2015, the possession of disputed property was that of O.P. No.4 to 6 which was stayed by this Court. It is also mentioned that there was no possession of O.P. Nos. 4 to 6 prior to the order dated 22.12.2015. That the order passed by O.P. No.2 dated 22.12.2015 was genuine and legal order, hence, it is prayed that impugned order dated 21.03.2016 mentioned above should be quashed.

21. The same facts which have been recorded by me above after being culled out from the respective pleadings, the same have been narrated in the arguments by both the sides.

22. From the side of learned counsel for the O.P. No.3 in proceeding under Section 482 Cr.P.C. No. 27977 of 2015, O.P. No. 4 in connected Revision No. 168 of 2016 and revisionist in Revision No. 866 of 2016, it is argued that the order dated 21.03.2016 whereby possession of the disputed property is directed to be given back to applicant nos. 2 to 4 of Application under Section 482 Cr.P.C. No. 27977 of 2015 and revisionist nos. 2 to 4 of Revision No. 168 of 2016 and O.P. Nos. 4 to 6 of Revision No. 866 of 2016, needs to be quashed. The entire argument was made in the Criminal Revision No. 866 of 2016 only as the other two proceedings were connected proceedings and, hence no separate arguments were done from either side. From the side of subsequent purchaser mentioned above, it is mainly argued that they were bona-fide purchaser who had purchased the disputed property from Indira Kaushik and were in possession since the time when the sale-deed was executed, therefore, they deserve to be given possession of the said property and no attachment order needs to be passed in this regard and, accordingly prayer is made by them for setting-aside the order dated 4.09.2015 by which S.D.M. had directed attachment of the disputed property and to be handed over to an independent person, in proceeding under Section 482 Cr.P.C. No. 27977 of 2015 and have also prayed that order dated 22.12.2015 passed in Revision No. 168 of 2016 be also set-aside whereby Ram Kumar Sharma was allowed to remain in possession of the disputed property and restraint order was issued against the subsequent purchaser from making any kind of interference in the same.

23. After having heard the arguments and having gone through the pleadings, the facts emerged in this case, that Ram Kumar Sharma is claiming ownership of the disputed house from his brother Ravindra Kumar Sharma S/o Late Chandra Bhan Sharma because he died 18 years ago and his wife had left without claiming any title to property in dispute and had gone to Rajasthan. Number of documents have been relied upon from his side to show that right from the beginning i.e. soon after the death of his brother, he was taking care of the said property, depositing electricity bills, taxes of the said property in Municipal Office etc. and at no point of time, Indira Kaushik was ever owner of the said property. Indira Kaushik was a married lady who married Dr. Ravindra Kumar Sharma S/o Rajeshwar Dayal Sharma who is still alive and three children were born out of the wedlock but because of the name of the deceased being the same as that of Dr. Ravindra Kumar Sharma, Indira Kaushik misused the name of his brother by posing to be wife of his late brother and had executed sale-deed of the property of his deceased brother in favour of Satendra, Indrajeet and Sumit for which she did not have any right. A number of documents have been relied upon by the applicant, Ram Kumar Sharma to prove that the father of the three children of Indira Kaushik was Dr. Ravindra Kumar Sharma S/o Rajendra Dayal Sharma and not Ravindra Kumar Sharma S/o Chandra Bhan Sharma i.e. brother of Ram Kumar Sharma. It has also emerged as one of the facts that Ram Kumar Sharma is claiming possession of that disputed property which was never given to Satendra Kumar, Indrajeet Singh and Sumit Kumar pursuant to the sale-deed executed by Indira Kaushik. Indira Kaushik never lived in the disputed house and was staying with her husband, Dr. Ravindra Kumar Sharma and that the three subsequent purchasers are 'bhoo-mafiyas' who had got the sale-deed executed from Indira Kaushik for petty amount and are trying to grab the said property. It has also come on record that several Civil Cases are pending between the parties as have been stated above which is admitted to both the parties and the matter of ownership of the said property in dispute is yet to be decided by the Civil Court.

24. On the other hand, from the side of Indira Kaushik and subsequent purchasers 2 to 4, it has been argued that she was in-fact wife of the brother of Ram Kumar Sharma i.e. deceased, Ravindra Kumar Sharma and out of the wedlock, three children named above were born and that because she was out of her matrimonial home after the death of her husband and her financial position had grown weak, she had executed sale-deed of the disputed property in favour of Satendra Kumar, Indrajeet Singh and Sumit Kumar and had delivered possession of the same which is falsely being denied by brother of her late husband, Ram Kumar Sharma malafidely in order to grab the said property.

25. From the side of Ram Kumar Sharma, reliance has been placed upon the judgment of Amresh Tiwari Vs. Lalta Prasad Dubey and Another Manu/SC/0265/2000. In this case, the proceedings were initiated under Section 145 Cr.P.C. The dispute pertains to immovable property and there was likelihood of breach of peace. A Civil Suit for declaration of title, possession and for injunction was also filed with respect to the same property for which the order was passed directing the parties to maintain the status quo. The S.D.M. passed preliminary order under Section 145 (1) Cr.P.C. on the police report but respondent claimed in written statement filed pursuant to the said preliminary order that property forming subject matter of Civil Suit was different from the property in proceeding under Section 145 Cr.P.C. The application for dropping the proceedings in view of the pendency of Civil Suit was rejected. The revision and review application were also rejected. The first respondent stated in the statement recorded in proceeding under Section 145 Cr.P.C. that Civil Suit did not relate in respect of the same property which was covered in proceedings under Section 145 Cr.P.C., even then the S.D.M. dropped the proceeding under Section 145 Cr.P.C.. In view of the above, the Revision was preferred against that order which was allowed by the High Court and the matter was remitted to the trial court. The order of the High Court remitting the matter came for consideration before the Hon'ble Apex Court and the same was found to be erroneous and it was held that S.D.M. was bound to take decision afresh on statements recorded by him. In view of the subsequent disclosure, earlier order refusing dropping of proceedings was not binding, accordingly, the order of the High Court was set-aside. It was also held in this case that it is only in cases where Civil Suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the Civil Court, the proceedings under Section 145 Cr.P.C. should not be allowed to continue because the Civil Court is competent to decide the question in respect of title as well as possession between the parties and the orders of the Civil Court would be binding on the Magistrate. It is also held that it is settled law that interim orders even though they may have been confirmed by the Higher Courts, never bind and do not prevent from passing of contrary orders at the stage of final hearing.

26. Reliance is also placed upon the judgment of Kamal Gulati Vs. State of U.P. and others Manu/UP/0144/2017 in which Lucknow Bench of this Court in para 20 held that in present case admittedly a Civil Suit was filed by the petitioner earlier, proceedings under Section 145 Cr.P.C. filed were also initiated by the petitioner which was registered as Case No. 56/28 (appears to be wrong as it may be 56/18) and was decided on 20.09.2002 wherein proceedings were dropped by the learned Magistrate holding that there was no apprehension of breach of peace, Suit No. 1178 of 2002 filed by the petitioner was pending which was filed by Kamal Gulati wherein an interim injunction order was issued on 15.11.2002 which was subsequently vacated vide order dated 3.01.2003. In Amresh Tiwari (Supra), the Hon'ble Apex Court has considered in the case of Jhummamal @ Devan Vs. State of M.P. and others (1998) 4 SCC 452 held that when the matter is pending before the Civil Court definitely the proceedings under Section 145 Cr.P.C. could not be continued simultaneously and, accordingly, had quashed the proceedings under Section 145 Cr.P.C.

27. As regards the first citation relied upon by the learned counsel for the applicant, the facts are different of the said case from the facts of the present case. There is no dispute with regard to the fact that the disputed house is 1607 Dev Lok Colony, Hapur regarding which dispute is existing between both the sides and it is also admitted that Suit No. 283 of 2015, 271 of 2015 and 260 of 2015 are pending between the parties which relate to declaratory suit, suit of injunction and cancellation of sale-deed etc., although it has not been brought to the notice of this Court as to whether any interim relief/ injunction order has been passed in any of these cases in favour of any of the parties but admittedly these cases are pending between the parties with respect to the same property with respect to which the proceedings in the present proceedings under Section 145 Cr.P.C. are also drawn, hence facts are different in the present case from the facts mentioned in the citation relied upon by the learned counsel for the applicant.

28. It would also be pertinent to cite correct position of law so to arrive at right conclusion in the matter in the light of judgment of Ashok Kumar Vs. State of Uttarakhand and Others (2013) 3 SCC 366. In this case, second respondent/plaintiff filed a suit before Civil Judge against the appellant/defendant and the third respondent praying for a decree of temporary injunction restraining them from interfering with the plaintiff's peaceful enjoyment and possession of the landed property in question. An application was also filed under Order 39 Rules 1 and 2 read with Section 151 Cr.P.C. for an order of interim injunction. The second respondent/ plaintiff later filed an application under Section 145/146 Cr.P.C. before S.D.M. for an order of attachment of the property. An enquiry was conducted pursuant to which a report was submitted by S.I., Police stating that even though the property was in the name of the second respondent yet the appellant was in possession thereof and his house was situated in the land in dispute where he had undertaken some construction. It was further stated in the report that the possibility of breach of peace in the locality could not be ruled out. Meanwhile, in the Civil Suit after conducting an inspection, a report was submitted by the Amin stating that the respondent-plaintiff was in possession of the property and the construction was going on. The S.D.M. while noticing the possession of the property of appellant/defendant passed the impugned order attaching the property under Section 146 (1) Cr.P.C. The High Court affirmed the order of the S.D.M. Allowing the appeal and setting-aside the attachment, the Supreme Court held that Sections 145 and 146 Cr.P.C. together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of peace and Section 146 Cr.P.C. cannot be separated from Section 145 Cr.P.C. It could only be read in the context of Section 145 Cr.P.C. The object of Section 145 Cr.P.C. is to maintain law and order and to prevent breach of peace by maintaining one or other parties in possession and not for evicting any person from possession. The scope of inquiry under Section 145 Cr.P.C. is in respect of actual possession without reference to the merits or claims of any of the parties to a right to possess to subject of dispute. If after the enquiry under Section 145 Cr.P.C., the Magistrate is of the opinion that none of the parties was in actual possession of the subject of dispute at the time of order passed under Section 145 (1) Cr.P.C. or is unable to decide which of the parties was in such possession, he may attach the subject of dispute. But when reports indicate that one of the parties is in possession, rightly or wrongly, the Magistrate cannot pass an order of attachment on the ground of emergency. The ingredients necessary for passing an order under Section 145 (1) Cr.P.C. would not automatically attract the attachment of the property. Under Section 146 Cr.P.C., the Magistrate has to satisfy himself as to whether emergency exists before he passes an order of attachment. A Case of emergency, as contemplated under Section 146 Cr.P.C., has to be distinguished from a mere case of apprehension of a breach of peace. The Magistrate before passing an order under Section 146 Cr.P.C., must explain the circumstances why he thinks it to be a case of emergency. In other words, to infer a situation of emergency, there must be material on record before the Magistrate when the submission of the parties is filed, documents produced or evidence adduced. In the present case, the respondent/ plaintiff has filed a Civil Suit for injunction before the Civil Judge against the appellant-defendant and another and an application for interim injunction is also pending, on which the Civil Court has issued only a notice. An Amin Report was called for and the Amin submitted his report. As the Civil Suit was filed prior in point of time, it is for the Civil Court to decide as to who was in possession on the date of filing of the suit. In any view, there is nothing to show that there was an emergency so as to invoke the powers under Section 146 (1) Cr.P.C. to attach the property, especially when a Civil Court is seized of the matter. Under such circumstances, the orders of attachment passed by the S.D.M. and the High Court are liable to be set-aside.

29. I would like to analyse the facts of the above case in light of the law laid down by Apex Court in Ashok Kumar (Supra).

30. Record reveals that Indira Kaushik and her children had filed O.S. No.238/15 for cancellation of the will dated 24.10.2013. According to her, no such will was executed and, hence she had filed the said suit. The other suit between the parties is Suit No. 271 of 2015 seeking relief of permanent injunction in respect of the disputed house which was filed on 27.08.2015. The plaintiff of this case are the subsequent purchaser of the disputed house. The third Civil Suit No. 260 of 2015 is filed by Ram Kumar Sharma and others (other brothers of Ram Kumar Sharma) against Indira Kaushik and others (which include her children and subsequent purchasers) in which the property in dispute is the same which is in dispute in present proceeding under Section 145 Cr.P.C. in which prayer is made for a decree of declaration to be passed in respect of the disputed property in favour of the plaintiff and also simultaneously the prayer of injunction has been sought. All these cases make it absolutely clear that with respect to the disputed property, there is hotly contested litigation going on between the parties with respect to the title of the disputed property and injunction applications are also moved in these cases in which proceedings are going ahead but none of the parties has brought to the notice of this Court during arguments whether any interim order has been passed in those suits. It is absolutely clear in the light of the law cited above that title can be decided only by the Civil Court with respect of the disputed property and till the decision of the title of the disputed property, Civil Court has also jurisdiction to pass interim order with respect to maintaining possession of either of the parties in favour of which evidence is found to be there on record. The finding of the Civil Court is always binding upon the court of Magistrate dealing with proceeding under Section 145 Cr.P.C.

31. I have seen the pleadings cited above and the dispute involved between two sides which have been mentioned at length in earlier part of the order in all the three proceedings mentioned above. It is absolutely clear that the proceedings were initiated under Section 145 Cr.P.C. on an application of Ram Kumar Sharma dated 1.06.2015 whereon a report was obtained from the Nayab Tehsildar daed 17.06.2015, who in his report has given all the details which have already been cited above and has concluded on the basis of those details that the disputed house belonged to Ravidra Kumar Sharma S/o Chandra Bhan Sharma and the same did not belong to Ravindra Kumar Sharma S/o Ramendra Dayal Sharma who was doctor by profession and that the sale-deed was executed by Indira Kaushik of the disputed house in a forged manner in order to affect breach of peace. What basis was there for him to assess as regards the said sale-deed resulting in breach of peace, has not been mentioned. Upon the said report having been taken into consideration, the proceedings were initiated under Section 145(1) Cr.P.C. by the S.D.M. in this matter who issued two orders on 23.06.2015 one under Section 145 Cr.P.C. and the other under Section 146 (1) Cr.P.C. directing attachment of the disputed property and for handing over the same to some independent person. Thereafter order dated 4.9.2015 was passed by S.D.M. which was assailed in Application under Section 482 Cr.P.C. No. 27977 of 2015. In the said order, it is only mentioned that after the perusal of the report of P.S. Kotwali, Hapur, it was found that there was tension prevailing between both the sides with respect to the disputed house and nothing beyond that and simply because on the basis of that, these proceedings under Section 146(1) were drawn and attachment order was passed but in view of the law cited above in Ashok Kumar's case (Supra) whrerein it is clearly written that order under Section 146 (1) Cr.P.C. can be passed only when there is emergency. Mere apprehension of breach of peace would not constitute any emergency, therefore, the said order does not appear to me to be in consonance with the established law and deserves to be set-aside particularly in light of the law also cited above. In the present case Civil litigation is also going on between the same parties and the details of those cases have already been mentioned above. It was very much open to the parties to approach the Civil Court before which proceedings are pending to seek injunction order with respect to disputed property and get their title of the said property decided.

32. In Revision No. 168 of 2016 in which order dated 22.12.2015 is assailed which has been cited above, Ram Kumar Sharma has been allowed possession of the disputed property and injunction is granted against interference in his peaceful possession which has been assailed by Indira Kaushik and the subsequent purchasers.

33. Perusal of the said order would indicate that the S.D.M. concerned has drawn the said conclusion that Ram Kumar Sharma was in possession of the disputed property two months prior to the drawing of the proceedings under Section 145 (1) Cr.P.C., hence his possession over the same should be restored. He has drawn this conclusion only on the basis of documentary evidence i.e. receipts of electricity bill, payment of house tax etc. but in my opinion as the matter being sub-judice before the Civil Court, it would not be appropriate for the S.D.M. to give finding with respect to ownership as well as possession because the order suggests that he has been mainly guided by seeing ownership documents and the sale-deed etc. being forged and has reached this conclusion that Ram Kumar Sharma would have been in possession of the disputed property. I do not see this order to be justified and, accordingly, this order is also set-aside.

34. Lastly in Criminal Revision No. 866 of 2016, the order dated 21.03.2016 is challenged by which subsequent purchasers, O.P. Nos. 4 to 6 have been directed to be given possession back after taking the same from the revisionist i.e. Ram Kumar Sharma. It appears that the said conclusion has been drawn by the S.D.M. on the basis of the order of this Court dated 11.02.2016 in which after hearing the parties, the matter was directed to be decided after hearing both the parties again and the S.D.M. after having perused the documents on record held that prior to the order dated 22.12.2015, the said property was in supurdagi of subsequent purchasers and that by order dated 22.12.2015, it was directed to be given to Ram Kumar Sharma, revisionist, therefore, it was ordered that the possession of the same should be given to the subsequent purchaser i.e. O.P. Nos. 4 to 6. This order also does not appear to be in consonance of law because the matter as regards title is still pending before the Civil Courts mentioned above, therefore, it would not be appropriate to deliver possession to either of the parties as there are serious questions/ doubts involved with respect to execution of sale-deed by Indira Kaushik in favour of Satendra, Indrajeet and Sumit because according to Ram Kumar Sharma, she was not a wife of his deceased brother and, hence had no right to execute sale-deed of the property of his deceased brother. The suit for cancellation of the said sale-deed is also pending before Civil Court. Ram Kumar Sharma has also filed an injunction suit against the subsequent purchasers and subsequent purchasers have also filed injunction suits against Ram Kumar Sharma, therefore, in such a situation, this Court deems it proper that till the decision of title is made by the competent court before which the proceedings are pending, no direction should be given for delivering possession of the disputed property to any of the parties.

35. As regards breach of peace, there are provisions under Sections 107 and 116 Cr.P.C. which can be resorted to, as and when needed, by the competent magistrate. Besides this unless there is extreme emergent situation which has to be recorded in writing by the Magistrate, which compels it to resort to passing an order under Section 146 (1) Cr.P.C. of attaching the property, no such order should be passed by it, therefore, all the impugned orders in the above proceedings deserve to be quashed and are, accordingly quashed with liberty to the Magistrate only to the extent that it would take resort to proceedings under Section 146 (1) only in extremely emergent situation regarding which sufficient evidence should be there on record which is found lacking as of now.

36. It is further directed that parties shall approach the Civil Court concerned where litigation are pending and press before them the injunction application within 15 days from the date of order for disposal of the injunction application and in case such an application is moved, the court concerned shall dispose of the same within 30 days, thereafter. Further it is expected of the trial courts before which the original suits are pending that they will expedite the hearing of the said cases and would decide them as early as possible.

Order Date : 14.8.2019 AU/Mandhani