# Irshad v. State of U.P. & Ors - **Citation:** (2014) 2 ILRA 609 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2014-04-16 - **Case number:** Civil Misc. Writ Petition No. 21415 of 2014 - **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/irshad-v-state-of-u-p-ors-42847 - **Pages:** 3 ## Headnote Constitution of India, Art.-226- Role of police-where Civil suit pending before Civil Court-private respondent failed to getexparte injunction order-with collusion of private respondent police using extra judicial method of coercion-highly depreciated-police can not discharge the duty of Civil Court. Held: Para-3 We have no manner of doubt that it is not open to the police authorities to arrogate to themselves powers which are not conferred upon them by law. Any such coercive methods would be violative of the rule of law. The fourth respondent is entitled, in the pending suit, to seek all possible reliefs which are legitimately open. However, a police officer would have no justification whatsoever to exercise those powers which are to be exercised by the civil court on an adjudication of facts between litigating parties. ## Text 2 All] Irshad Vs. State of U.P. & Ors. 609 deed was executed and possession has been handed over to the auction purchaser. Hence, the District Magistrate, Siddharth Nagar has stated that he had no jurisdiction to entertain the representation. 4. In a matter as in the present, where an immovable property has been sold in execution of a decree passed by the Civil Court, it would be most inappropriate for the Court in exercise of its writ jurisdiction under Article 226 of the Constitution to interfere when sufficient remedies are provided under Order XXI Rule 90 of the Code of Civil Procedure, 1908. 5. Order XXI Rule 90(1) stipulates that where any immovable property has been sold in execution of a decree, the decree holder, or the purchaser, or "any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale", may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. 6. Sub-rule (2) of Order XXI Rule 90 stipulates that no sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury. 7. Order XXI Rule 92(4) stipulates that where a third party challenges the judgment-debtor's title by filing a suit against the auction-purchaser, the decreeholder and the judgment-debtor shall be necessary parties to the suit. 8. Sufficient remedies are available under the Code of Civil Procedure, 1908 for applying to set aside an auction sale, which has been conducted in execution of a decree including at the behest of a third party which claims an interest or share in the property which is affected by the sale. 9. In this view of the matter, no recourse can be had for exercise of writ jurisdiction under Article 226 of the Constitution. The District Magistrate, Siddharth Nagar was absolutely justified in declining to entertain the representation filed by the petitioners. The District Magistrate can exercise powers which are specifically conferred upon him by law and he had no jurisdiction to entertain a representation in respect of a sale which had taken place in pursuance of an execution of a decree passed by the Civil Court in pursuance of which a registered sale deed had been executed and possession had been handed over to the auction purchaser. Even otherwise, the District Magistrate was not competent to entertain such a request. The remedies of the petitioner must, therefore, lie under the provisions of Order XXI Rule 90 as observed earlier. We leave it open to the petitioners to do so. 10. The writ petition is, accordingly, dismissed. -------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 16.04.2014 BEFORE THE HON'BLE DR. DHANANJAYA YESHWANT CHANDRACHUD, C.J. THE HON'BLE DILIP GUPTA, J. Civil Misc. Writ Petition No. 21415 of 2014 Irshad ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Sri Akhilanand Pandey, Sri Suresh Chandra Varma 610 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for the Respondents: C.S.C. Constitution of India, Art.-226- Role of police-where Civil suit pending before Civil Court-private respondent failed to getexparte injunction order-with collusion of private respondent police using extra judicial method of coercion-highly depreciated-police can not discharge the duty of Civil Court. Held: Para-3 We have no manner of doubt that it is not open to the police authorities to arrogate to themselves powers which are not conferred upon them by law. Any such coercive methods would be violative of the rule of law. The fourth respondent is entitled, in the pending suit, to seek all possible reliefs which are legitimately open. However, a police officer would have no justification whatsoever to exercise those powers which are to be exercised by the civil court on an adjudication of facts between litigating parties. (Delivered by Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, C.J.) 1. The petitioner has moved this proceeding stating that he is a co-sharer in plots no. 177 and 178, situated in Mauja Katauli Buzurg, Pargana Devgaon, Tehsil- Lalganj, District Azamgarh. 2. The fourth respondent filed a suit before the Civil Judge (Junior Division), Haveli, Azamgarh (Original Suit No. 381 of 2014) in which the petitioner and the fifth respondents who are brothers have been impleaded as the first and second defendants, whereas respondents 6, 7 and 8 who are sons of the fourth respondentplaintiff were also impleaded as defendants. The Civil Judge (Junior Division) did not grant any interim injunction but by an order dated 3 March 2014 issued notice and directed a spot inspection by a Commissioner. The petitioner has stated that on 9 March 2014, while he was carrying out construction on the portion of the land which has fallen to his share, the third respondent sought to raise an obstruction. 3. The grievance in these proceedings is that the third respondent, who is the officer Incharge of the Police Station, is now coercing the petitioner not to carry out any construction though the fourth respondent has failed to obtain an injunction before the Trial Court. At the outset, we make it clear that the issue as to whether the construction which is carried out by the petitioner is or is not within his holding, as claimed, cannot be determined by this Court under Article 226 of the Constitution in the present proceeding. We are, however, entertaining the petition only on the basis of the grievance that the third respondent, who is the officer Incharge of the Police Station, has taken the law in his own hands and despite the fact that the fourth respondent has failed to obtain an interim injunction, is using extra judicial methods to coerce the petitioner. We have no manner of doubt that it is not open to the police authorities to arrogate to themselves powers which are not conferred upon them by law. Any such coercive methods would be violative of the rule of law. The fourth respondent is entitled, in the pending suit, to seek all possible reliefs which are legitimately open. However, a police officer would have no justification whatsoever to exercise those powers which are to be exercised by the civil court on an adjudication of facts between litigating parties. 4. We, however, clarify that these observations are only confined to deal with the allegation against the third respondent and shall not amount to any 2 All] Dr. Anil Kumar Vs. D.D.C. District G.B. Nagar & Ors. 611 expression of opinion by the Court on the rights inter se as claimed by the petitioner and the private respondents, which are left to be decided in appropriate proceedings, including those which are pending before the Civil Court. 5. The petition is, accordingly, disposed of. There shall be no order as to costs. -------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 21.04.2014 BEFORE THE HON'BLE ANJANI KUMAR MISHRA, J. Civil Misc. Writ Petition No.21572 of 2014 Dr. Anil Kumar ...Petitioner Versus D.D.C. District G.B. Nagar & Ors. ...Respondents Counsel for the Petitioner: Sri Saurabh Sachan,Sri A.K. Sachan Counsel for the Respondents: C.S.C. U.P. Consolidation of Holdings Act-Section 48-Sale deed by one co-shareholder to other-prior to consolidation scheme-not taken into consideration while determining share-the C.O. Taken view as in pursuance of sale deed name not mutated-and the sale transaction hit by provision of section 168-A of U.P. Z.A. & L.R. Act-SOC as well as D.D.C.- rightly set-a-side the order passed by C.O. In view of fact when sale deed executedvillage was not under consolidation-more over sale transaction between one coshare holder to other-neither mutation nor provisions of 168-A of Z.A. Act attractedpetition dismissed. Held: Para-11 Under the circumstances, there was no question of the sale deed requiring mutation in the revenue record. Mutation could have been required only if the sale deed was in favour of persons whose name did not already exist in the record. Moreover, sale deed is of a share in a joint Khata and the same, therefore, is not hit by provision 168-A of the Act as it existed in the statute book on the date of sale deed. This provision has been deleted from statute book w.e.f. 23.8.2004 vide Act No. 27 of 2004. Sale of share by one co-tenure holder in favour of another co-tenure holder in a joint khata does not result in any fragmentation. Case Law discussed: 1971 RD 518. (Delivered by Hon'ble Anjani Kumar Mishra ,J.) 1. Heard Sri AK Sachan, learned counsel for the petitioner. 2. This writ petition arises out of an objection under section 9-A(2) filed by Mushe and others, 3. The dispute in the writ petition pertains to land of Khata No. 104 which was recorded in the name of Smt. Saremwati, w/o Sri Kashi Ram, Mushe, son of Solu, and Horam, son of Kale in the basic year. Three sets of objections were filed under section 9-A (2). Of the three objections, the writ petition pertains to the objection filed by Mushe claiming on the basis of the sale deed dated 11.12.1964 wherein Chandru had sold his 1/4th share in favour of Horam, son of Kale and Mushe, son of Solu. 4. A counter objection was filed by the petitioner's mother claiming the share of Chandru on the basis of sale deed dated 17.4.1973 alleged to have been executed in her favour by the said Chandru.