# Jaiprakash Tiwari v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 680
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-28
- **Case number:** Writ C No. 13336 of 2021
- **Bench:** Surya Prakash Kesarwani, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaiprakash-tiwari-v-state-of-u-p-ors-47253
- **Pages:** 3

## Headnote

A. Civil Law - Social Welfare -
Maintenance And Welfare of Parents
And Senior Citizens Act, 2007
-
Section 22(1)(3) - Uttar Pradesh
Maintenance And Welfare of Parents
and Senior Citizens Rules, 2014 -
Rule 21(2)(i) Rule 21(1) Sub-Rule 2
and 3 - Code of Criminal Procedure -
Section 107/116 - The Act, 2007
does
not
confer
power
to
the
Authorities
to
decide
partition
dispute and share of parties in an
immovable property. (Para 8)
Petitioner has prayed for protection for his life
and property and has also prayed to be put in
possession of that portion of the property which
falls in his share. For the protection of life and
property an action u/s 107/116 Cr.P.C. is said to
have been taken by the State-respondents to
ensure that breach of law and order does not
take place. (Para 6, 7)

Whereas, regarding possession, the Hon'ble
Court held that the disputed property is an
ancestral property in which the parties have
undivided share. Such a dispute is pure and
simple a dispute of share and possession of the
disputed property, which can be decided in a
partition suit. (Para 5, 8, 9)

Writ petition dismissed.(E-3)

## Text

680 INDIAN LAW REPORTS ALLAHABAD SERIES

23. In view of the aforesaid, we are of
the opinion that the possession of the land
has been taken by the Authorities. Once the
possession has been taken, the petitioners
are not entitled for any benefit as provided
under Sub-Section (2) of Section 48 of the
Act of 1894.

24. In view of the above, the
petitioners are not entitled for the relief as
claimed. Petition devoid of merits and is
accordingly dismissed.
----------
(2021)07ILR A680
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.06.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Writ C No. 13336 of 2021

Jaiprakash Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Krishna Kumar Chaurasia

Counsel for the Respondents:
C.S.C.

A. Civil Law - Social Welfare -
Maintenance And Welfare of Parents
And Senior Citizens Act, 2007
-
Section 22(1)(3) - Uttar Pradesh
Maintenance And Welfare of Parents
and Senior Citizens Rules, 2014 -
Rule 21(2)(i) Rule 21(1) Sub-Rule 2
and 3 - Code of Criminal Procedure -
Section 107/116 - The Act, 2007
does
not
confer
power
to
the
Authorities
to
decide
partition
dispute and share of parties in an
immovable property. (Para 8)
Petitioner has prayed for protection for his life
and property and has also prayed to be put in
possession of that portion of the property which
falls in his share. For the protection of life and
property an action u/s 107/116 Cr.P.C. is said to
have been taken by the State-respondents to
ensure that breach of law and order does not
take place. (Para 6, 7)

Whereas, regarding possession, the Hon'ble
Court held that the disputed property is an
ancestral property in which the parties have
undivided share. Such a dispute is pure and
simple a dispute of share and possession of the
disputed property, which can be decided in a
partition suit. (Para 5, 8, 9)

Writ petition dismissed.(E-3)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Gautam Chowdhary, J.)

1. Heard Shri Krishna Kumar
Chaurasia,
learned
counsel
for
the
petitioner and Shri B.P. Singh Kachwaha,
learned Additional Chief Standing Counsel
for the respondents.

2. The petitioner claims himself to be
a senior citizen and has filed the present
writ petition praying for the following
relief :-

(i) Issue a writ, order or direction
in the nature of mandamus directing the
respondent
no.2/
District
Magistrate,
Allahabad to decide the application dated
13.3.2021 filed Under Section 22(1)(3) of
THE MAINTENANCE AND WELFARE
OF PARENTS AND SENIOR CITIZENS
ACT, 2007 read with Rule 21(2)(1) Rule
22(1) Sub-Rule 2 and 3 of UTTAR
PRADESH
MAINTENANCE
AND
WELFARE OF PARENTS AND SENIOR
CITIZENS RULES, 2014 within a specific
7 All. Jaiprakash Tiwari Vs. State of U.P. & Ors.
681
period which may kindly be fixed by this
Hon'ble Court.

(ii) Issue a wirt, order or direction
in the nature of mandamus directing the
respondent
no.2/
District
Magistrate,
Allahabad to restrain respondent no. 6 to 9
from raising any construction further over
the share of the petitioner.

(iii) Issue a writ, order or
direction in the nature of mandamus
directing the respondent no.2/ District
Magistrate, Allahabad to provide security
of life and property to the petitioner from
respondent no. 6 to 9 and from the other
anti social elements who are with the
respondent no.6 to 9 at this time.

(iv) Issue a writ, order or
direction in the nature of mandamus
directing respondent no.5/ Station House
Officer, P.S. Karchhana, Prayagraj not to
interfere in peaceful possession of the
petitioner by himself as well as by his agent
in pursuance of the application filed Under
Section 22(1)(3) of THE MAINTENANCE
AND WELFARE OF PARENTS AND
SENIOR CITIZENS ACT, 2007 read with
Rule 21(2)(1) Rule 22(1) Sub-Rule 2 and 3
of UTTAR PRADESH MAINTENANCE
AND WELFARE OF PARENTS AND
SENIOR CITIZENS RULES, 2014.

(v) to issue any other suitable
writ, order or direction as this Hon'ble
Court may deem fit and proper under the
facts and circumstances of the case.

(vi) to award the cost of this writ
petition to the petitioner.

3. In his aforesaid application/
complaint
dated
13.3.2021
submitted
before the District Magistrate, Prayagraj,
under Section 22(1)(3) of The Maintenance
and Welfare of Parents and Senior Citizens
Act, 2007 (hereinafter referred to as the
Act, 2007) read with Rule 21(2)(i) Rule
21(1) Sub-Rule 2 and 3 of Uttar Pradesh
Maintenance and Welfare of Parents and
Senior Citizens Rules, 2014 (hereinafter
referred to as the U.P. Rules), the petitioner
has alleged that in the village abadi, there is
an ancestral house which was owned by his
father and is now occupied by him and his
two brothers who all are residing in the
same house and each brother has a share of
14 x 20 sq. ft. in the said house. But his
brothers are trying to encroach over his
share. The petitioner in the aforesaid
complaint dated 13.3.2021 has prayed for
protection of his life and property and to
give him possession over that portion of the
property which has been encroached by his
brothers.

4. According to the petitioner, since
no action has been taken by the District
Magistrate, Prayagraj on his aforesaid
complaint dated 13.3.2021, therefore the
petitioner has filed the present writ petition
praying for the aforenoted reliefs.

5. Learned counsel for the petitioner
submits that life and property of the
petitioner be protected and he be put in
possession of that portion of the property
which falls in his share.

6. Learned Additional Chief Standing
Counsel
submits
on
the
basis
of
instructions that the said property was
inspected by the Authorities and on
17.6.2021 action under section 107/116
Cr.P.C. was taken so as to ensure that
breach of law and order does not take
place. He further submits on the basis of
instructions that the disputed property is an
ancestral one in which the petitioner and
his two brothers have undivided shares and
partition has not yet taken place.
682 INDIAN LAW REPORTS ALLAHABAD SERIES

7. We have carefully considered the
submissions of learned counsel for the
parties and we find that an action under
section 107/116 Cr.P.C. has already been
taken by the State- respondents.

8. So far as the contention of the
petitioner that he be put in possession in a
particular portion of the disputed property
is concerned, we find that such a matter
shall not be covered by the provisions of
Section 22(1) of the Act, 2007 read with
Rule 21(2)(i) Rule 21(1) Sub-Rule 2 and 3
of the U.P. Rules, 2014. Such a dispute is
pure and simple a dispute of share and
possession of the disputed property which
can be decided in a partition suit.

9. For the reasons aforestated, we do
not find any good reason to grant relief as
sought by the petitioner, inasmuch as the
Act, 2007 does not confer power to the
Authorities to decide partition dispute and
share of parties in an immovable property.
Admittedly, the disputed property is an
ancestral property in which the parties have
undivided share. Thus, the petitioner cannot
ask for mandamus to the Authority under
the Act, 2007 to put him in possession in a
particular portion of the disputed property.
Therefore, no mandamus as prayed, can be
issued.

10. With the aforesaid observations
and without expressing any opinion on the
merits of the claim of the petitioner, the
writ petition is dismissed leaving it open
for the petitioner to avail such remedy as
may be available to him under law.
----------
(2021)07ILR A682
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2021

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

Application U/S 482 Cr.P.C. No. 6670 of 2021

Bablu @ Vishnu Dhar Dubey ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Atul Kumar Shahi, Sri Anoop Trivedi
(Senior Adv.)

Counsel for the Opposite Parties:
A.G.A., Sri Irfanul Huda

A. Criminal Procedure Code, 1973 - Section
319(4)(a) - Power to proceed against other
persons appearing to be guilty of offence -
proceedings in respect of such person to be
commenced a fresh & the witnesses reheard - the moment, an accused, who has
been
summoned
u/s
319
Cr.P.C.,
is
produced before Court, trial revert back to
first stage of trial - trial has to be a de novo
trial, which would include re-recording of
evidence of all witnesses in presence of
newly summoned accused (Para 18)

After conclusion of statement of P.W. 1, on
application u/s 319 Cr.P.C. accused applicant
was summoned - charges were framed against
the accused - thereafter witness P.W.1 was
proposed to be re-examined - but counsel for
the said accused applicant gave in writing that
the examination-in-chief of P.W. 1 had already
been recorded & therefore, he was ready to
cross-examine P.W.1 and whatever P.W. 1
stated
in
examination-in-chief,
before
summoning of the accused applicant, can be
taken to be an examination-in-chief recorded
against the accused applicant - Held - not
recording examination-in-chief of P.W. 1 in
presence of the applicant accused and his
counsel against the provision of law - Trial court
directed to give opportunity to the accused
applicant for recording of Examination-in-Chief
of the P.W. 1 in his presence and, thereafter to
cross-examine the said witness (Para 18, 20)

B. Practice and procedure - Evidence Act,
1872 - Section 115 - Estoppel against law