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

- **Citation:** (2023) 10 ILRA 1052
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-09
- **Case number:** Matters Under Article 227 No. 10770 of 2022
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhakar-tiwari-v-state-of-u-p-ors-49258
- **Pages:** 13

## Headnote

Law-Constitution
of
India,1950-Article
227
&
Criminal
Procedure
Code,1973-Section
146(1)-
Neither of the parties could show any
material in reaching an inference as to
who was in actual possession on the date
notice was issued-Neither disputed gift
deed, sale deed or other papers regarding
title nor entries in revenue record are
sufficient to establish the possession of
any particular party on the disputed landthe
SDM
followed
the
prescribed
procedure, called the parties to file
written statements, took the evidence of
both the sides and came to a conclusion
that none of the parties was in actual
possession-Where
any
contingencies
exist,
the
Executive
Magistrate
may
proceed to attach the property until
competent court determines their rightsIn the instant case, the Magistrate found
one of the contingencies to exist and
revisional court agreed with the sameHence, no interference requires.(Para 1 to
34)

The writ petition is dismissed. (E-6)

List of cases cited:

## Text

_Characters 0–39,979 of 40,859. This is a partial read: ask again with offset=39979 for what follows._

1052 INDIAN LAW REPORTS ALLAHABAD SERIES

Now the pertinent question arises
whether an offence of 'cheating' is primafacie made out on the basis of the
complaint story, the oral evidence under
sections 200/202 Cr.P.C. and the papers
produced in support thereof.

17. The trial court as well as the
revisional court completely ignored the fact
whether from the material on record, if not,
the offence under section 138 N.I. Act, any
other offence is made out.

18. The Court is of the view that no
offence under section 138 of N.I. Act is
made out and the summoning order has
been passed in flagrant violation of law and
therefore this is a fit case for exercise of
powers
under
Article
227
of
the
Constitution of India. Hence the impugned
summoning order dated 20.12.2018 of the
trial court and the impugned order dated
24.09.2022 of the revisional court are
hereby set-aside.

19. The learned trial court is directed
to give an opportunity of hearing to the
complainant and pass a fresh order
according to law in the light of the
observations given in the body of the
judgement.

20. Accordingly, this petition is
disposed of.

21. Copy of the order be immediately
certified to the court concerned for
necessary action.
----------
(2023) 10 ILRA 1052
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters Under Article 227 No. 10770 of 2022
(Criminal)

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

Counsel for the Petitioner:
Sri Sandep Kumar Tiwari, Sri K.K. Tiwari

Counsel for the Respondents:
G.A., Sri Shivanand Mishra

A.
Criminal
Law-Constitution
of
India,1950-Article
227
&
Criminal
Procedure
Code,1973-Section
146(1)-
Neither of the parties could show any
material in reaching an inference as to
who was in actual possession on the date
notice was issued-Neither disputed gift
deed, sale deed or other papers regarding
title nor entries in revenue record are
sufficient to establish the possession of
any particular party on the disputed landthe
SDM
followed
the
prescribed
procedure, called the parties to file
written statements, took the evidence of
both the sides and came to a conclusion
that none of the parties was in actual
possession-Where
any
contingencies
exist,
the
Executive
Magistrate
may
proceed to attach the property until
competent court determines their rightsIn the instant case, the Magistrate found
one of the contingencies to exist and
revisional court agreed with the sameHence, no interference requires.(Para 1 to
34)

The writ petition is dismissed. (E-6)

List of cases cited:

1. Sanjai Kumar & anr. Vs VIth A.D.J. Bareilly &
ors. (1996) CriLJ 2413

2. Raj Bahadur & ors. Vs St. of U.P & anr., CRLR
No. 1032 of 1994
10 All. Prabhakar Tiwari Vs. State of U.P. & Ors.
1053
3. Premgiri Vs St. of U.P. & ors. Matter U/A 227
No. 5579 of 2019

4. Ajaib Singh Vs Sirhind Co-op Marketing cum
Processing Service Sty Ltd.(1999) 6 SCC 82

5. Mohan Amba Prasad Agnibotri Vs Bhaskar
Balwant Aheer, (2000) AIR SC 931

6. U.O.I. & ors. Vs Himmat Singh Chahar (1999)
4 SCC 521

7. Indian Overseas Bank Vs Indian Overseas
Bank Staff Canteen Workers' Union (2000) 4
SCC 245

8. U.O.I. Vs Rajendra Prabbu (2001) 4 SCC 472

9. St. of Mah. Vs Milind & ors. (2001) 1 SCC 4

10. Surya Dev Rai Vs Ram Chander Rai & ors.
(2003) 6 SCC 675

11. T.G.N. Kumar Vs St. of Ker. & ors. (2011) 2
SCC 772

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri K.K.Tiwari, Advocate
holding brief of Sri Sandeep Kumar Tiwari,
learned counsel for the petitioner, Sri
Shivanand Mishra, learned counsel for
respondent nos.2 to 6 and Sri Hari Pratap
Gupta, learned A.G.A. for the State.

2. This petition under Article 227 of
the Constitution of India has been moved
by the petitioner- Prabhakar Tiwari, against
the respondent nos. 2 to 6- Satya Prakash
Pandey and 4 Others, all sons of Ram
Chandr, and the State-respondent no.1,
with a prayer to set-aside the order dated
12.10.2021 passed by the learned SubDivisional Magistrate under section- 146(1)
Cr.P.C., as well as the order dated
15.11.2022 passed by revisional court,
affirming the same.

3. As per the submissions of the
petitioner:-

• Plot no.3, area 1.8960 hectare
was recorded in the name of one Ram
Poojan- Manager of Patel Memorial Inter
College, Atraulia, Azamgarh.

• He executed a sale deed in
favour of Narendra Pathak and Ratan
Pathak on 11.07.1980.

• The name of the vendees came
to be recorded in revenue record by order
dated 16.01.1992 passed by Naib Tehsildar.

• The order dated 16.01.1992 was
recalled on the application of one Ram
Chet Pandey, by order dated 14.03.2012.

• The aforesaid order of recall
was challenged by Narendra Pathak and
Another and the order dated 14.03.2012
was recalled on 18.04.2018, therefore the
order dated 16.01.1992 came to be
maintained.

•
Once
again
a
restoration
application was filed by the opposite party
challenging the order dated 18.04.2018 and
the operation of the order dated 18.04.2018
was stayed, till disposal of restoration
application.

• This stay order was passed on
06.07.2018 and the same was in fact setaside by Tehsildar Budhanpur, by order
dated 25.10.2019.

• The aforesaid order dated
25.10.2019 was challenged by Jai Prakash
Pandey and Others, by filing a Revision
No.2436 of 2019, before the Board of
Revenue at Lucknow (Jai Prakash Pandey
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
and Others vs. Narendra Pathak and
Another).

• This revision was dismissed on
18.04.2022. Thus the order of stay dated
25.10.2019 was maintained. Therefore, the
name of Narendra Pathak and Ratan Pathak
continued to remain in the revenue record
in the light of order of Board of Revenue
dated 18.04.2022. Their names continued
to be recorded in revenue record and they
executed a registered sale deed in favour of
the petitioner on 23.06.2018 and the
possession was handed over to the
petitioner.

• The name of the petitioner was
mutated in the revenue record by order
dated 30.11.2019.

4. The main contentions of the
petitioner are:-

The
petitioner
is
in
actual
possession of the disputed property;

The order of the Board of
Revenue dated 18.04.2022 has attained
finality.

The
dispute
arose
during
construction of the boundary wall of the
school by the petitioner;

The opposite parties opposed the
construction and filed an F.I.R. being Case
Crime No.11 of 2020, under sections- 147,
148, 379, 427, 504, 506 I.P.C.; the trial is
pending;

Meanwhile, the police station-
Atraulia, submitted a report on 25.02.2020
for initiating a proceeding under section
145 Cr.P.C. in connivance with the
opposite party; a supplementary report was
also given by the police on 07.03.2020.

The Sub-Divisional Magistrate
without
going
through
the
material
available on record and without considering
the supplementary report of the police and
further
ignoring
the
fact
of
actual
possession of the petitioner over the
disputed property, passed an order of
attachment on 12.10.2021 passed under
section 146(1) Cr.P.C.

The criminal revision preferred
by the petitioner challenging the order
dated 12.10.2021 was dismissed by order
dated 15.11.2022.

Both the orders are wholly illegal,
arbitrary and unsustainable.

The petitioner is in possession of
the disputed property. The opposite parties
have no right and title over the same.

They lost their case up to the
Board of Revenue, therefore the impugned
orders, being bad on facts and in law, are
liable to be set-aside.

5. The submissions of the respondent
nos.2 to 6 are as below:-

• Manager of Patel Memorial
Higher Secondary School, Atraulia- Ram
Poojan got executed a forged gift deed in
his favour, from Smt. Shiv Kali and sold
the disputed land to Narendra Pathak and
Ratan Pathak without having any title over
it.

•
The
mutation
proceeding
initiated by Ram Poojan on the basis of gift
deed was dismissed by order dated
22.05.1967.
10 All. Prabhakar Tiwari Vs. State of U.P. & Ors.
1055

• Earlier, Smt. Shiv Kali filed a
Suit No.204 of 1960 against the Patel
Memorial Higher Secondary School and
few others. The suit was dismissed on
20.11.1963 observing that Smt. Shiv Kali
had no right left in the disputed land,
though the gift deed was held to be valid.

• In such circumstances, the gift
deed did not convey any right to Ram
Poojan- the Manager of the said school and
therefore Narendra Pathak and Ratan
Pathak did not carry any title.

• The petitioner do not have any
bona fide claim to the disputed property.

• A Civil Suit No.1381 of 2018
"Jai Prakash Pandey vs. Prabhakar Tiwari
and Others" filed by respondent for
cancellation of sale deed is pending.

6.

The
main
contentions
of
respondents are that the petitioner's claim
have no basis; his predecessors were
involved in a prolonged litigation regarding
mutation etc. on the basis of a sale deed,
which could convey no rights and title as
the seller had no right and title. The
mutation in revenue records do not give
any right or ownership over the property;
the entries of revenue record have utility as
regards collection of revenue only; the
petitioner has never been in possession; the
proceeding of the criminal case filed by the
petitioner against the respondents has been
stayed by the High Court in Misc.
Application No.1326 of 2020 filed under
section 482 Cr.P.C. In the end, it is
contended that petitioner is neither owner
of the property, nor in possession and that
the dispute relates to possession only as is
provided under sections- 145 and 146
Cr.P.C. and that nobody was found in
possession of the land for the last 40 years,
hence the impugned orders are correct and
cannot be faulted.

7.

To
decide
the
matter
in
controversy, it is appropriate to once
consider the provisions of section 145
Cr.P.C. Section 145 Cr.P.C. provides for a
procedure where an Executive Magistrate
has to act upon, in cases where there is
likelihood of breach of peace on account of
a dispute concerning land or water. It may
be noted that Chapter-X of Cr.P.C. is titled
as maintenance of public order and
tranquility. This Chapter-X is divided into
four parts i.e. A, B, C and D. Part A deals
with unlawful assemblies, Part B deals
with public nuisances, Part C deals with
urgent cases of nuisance or apprehended
danger and Part D deals with disputes
relating to immovable property. As is clear
from the above, this Chapter provides for
an action to prevent breach of peace and
maintenance thereof. The legislature has
given powers to the Executive Magistrates
to take action under certain contingencies
with the sole motive of preventing breach
of peace and maintenance of public order
and tranquillity. No substantive rights of
the parties are decided and the proceeding
is essentially preventive and procedural in
nature.

8. Sections 145(1) and 145(4) of
Cr.P.C. are as below:-

"145. Procedure where dispute
concerning land or water is likely to cause
breach of peace.

1.
Whenever
an
Executive
Magistrate is satisfied from a report of a
police officer or upon other information
that a dispute likely to cause a breach of
the peace exists concerning any land or
water or the boundaries thereof, within his
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
local jurisdiction, he shall make an order
in writing, stating the grounds of his being
so satisfied, and requiring the parties
concerned in such dispute to attend his
Court in person or by pleader, on a
specified date and time, and to put in
written statements of their respective
claims as respects the fact of actual
possession of the subject of dispute.

2. ....................

3. .....................

4. The Magistrate shall then,
without, reference to the merits or the
claims of any of the parties to a right to
possess the subject of dispute, peruse the
statements so put in, hear the parties,
receive all such evidence as may be
produced by them, take such further
evidence, if any, as he thinks necessary,
and, if possible, decide whether any and
which of the parties was, at the date of the
order made by him under sub- section (1),
in possession of the subject of dispute:

Provided that if it appears to the
Magistrate that any party has been
forcibly
and
wrongfully
dispossessed
within two months next before the date on
which the report of a police officer or
other information was received by the
Magistrate, or after that date and before
the date of his order under sub- section
(1), he may treat the party so dispossessed
as if that party had been in possession on
the date of his order under sub- section
(1)."

9. From conjoint reading of the above
provisions, it is quite clear that the primary
duty of the Magistrate is to examine the
claims of the parties as regards de-facto
possession over the subject of dispute. The
parties, are of course entitled to submit
their written statements of their respective
claims. In turn, the Magistrate shall look
into their claims to decide upon which of
the parties is or was in possession on the
date of the order passed by him under subsection 1 of section 145 Cr.P.C. or to
decide
which
party
was
in
actual
possession, within two months next before
the date (on which the report of police
officer was given or the information was
received by the Magistrate after that date
and before the date of this order), in cases
where any party has been forcibly and
wrongfully dispossessed.

10. From the provisions of law, an
undisputed position emerges that rival
claims have to be considered, (irrespective
of the fact whether or not they touch upon
the right to title or the ownership over the
property), to find out as to whether any
party is/has been/was in possession on such
material dates as above. For this limited
purpose, the Magistrate can sift through the
oral and documentary evidence produced
by
the
parties.
The
Magistrate
is
empowered to adjudicate the question of
de-facto possession and no more.

11. The principles of law involved
herein, have been recited with the only
purpose that this Court proceeds in this
matter with that much legal clarity in mind
as regard the scope of enquiry under
section 145 Cr.P.C. Simultaneously one
more important aspect which has to be kept
in mind is that the petitioner has invoked
the jurisdiction of this Court under Article
227 of the Constitution of India and this
Court here is not deciding a revision or an
appeal.

12. In any legal battle, one contesting
party may have some merit in their claims
10 All. Prabhakar Tiwari Vs. State of U.P. & Ors.
1057
and the other party too may have some
merits to their claims. The merits may flow
from
their
respective
claims
as
to
ownership. And where the claim to
ownership or title are involved, the fact of
de-jure possession or implied possession
may be of value. However, as far as the law
which applies in the matters coming within
the purview of section 145 Cr.P.C. is
concerned, the claims to title or validity of
possession, express or implied may not be
of much utility. Even if the Executive
Magistrate finds some merit in the claims
of one party or the other, which might flow
from their valid rights to the ownership, he
may have to turn a blind eye. He has to
exercise a limited power with a view to
prevent breach of peace. In matter of such
nature, there is always an invisible third
party that is the society at large. The
jurisdiction, the Executive Magistrate has
to exercise, is aimed at upholding the rights
of the society at large, to have peace in the
area or may be in the neighbourhood. This
is not to say that the claims or the
averments and the evidence, whether
documentary or the oral, as regards
ownership and consequent possession over
the property or as regards "possession" only
with or without any reasonable or credible
claim of ownership or title, cannot be
perused or assessed at all. Of course, the
Court is entitled to go through such claims
and the evidence but only for a limited
purpose of finding out the actual possession
over the property in dispute.

13. In Sanjai Kumar and Another
vs. VIth Additional District Judge,
Bareilly and Others, 1996 CriLJ 2413, a
question arose before the Allahabad High
Court, whether in cases, where there is no
effective interim order recording that a
particular party was in possession, passed
by any civil court, the proceedings under
section 145 Cr.P.C. shall be dropped? The
Court considered that question; the relevant
part of the judgement is as below:-

"4. The only material question
for decision was as to whether in the
absence of an effective interim order
indicating possession by the civil Court in
the aforesaid civil suit in favour of either
of the parties to the dispute, the
proceedings under Section 145, Cr. P. C.
had become liable to be dropped?

5. Learned counsel for the
parties relied upon a few decisions of
various Courts for and against on the
aforesaid
question
and
after
going
through the same I find that the decision
which applied to the facts of the instant
case was a decision of this Court reported
in 1992 JIC 35, Abdul Gafoor v. State of
U.P. wherein it was held that the criminal
Court
continued
to
exercise
the
jurisdiction under Section 145, Cr.P.C., if
no effective interim order was passed in
the suit pending before the competent civil
or revenue Court. This Court before
laying down the aforesaid proposition of
law, had considered some other decisions
also. It would be proper to reproduce
below the relevant findings of this Court
in the said decision.

14. The Allahabad High Court also
dealt with the question of applicability of
the law laid down by Supreme Court in
Ram Sumer Puri case in following
manner.

In the case of Ram Sumer Puri,
Mahani,
the
question
of
title
and
possession over the subject- matter had
already been adjudicated and the suit had
been dismissed by the Civil Judge. An
appeal against the judgment and order of
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
the Civil Judge was still pending. It was in
this background that the Supreme Court
did not approve the parallel proceedings
under Section 145, Cr. P. C. in respect of
the same subject-matter between the same
parties. Thus, Sumer's case is not an
authority on the question that proceedings
under Section 145, Cr. P. C, must be
dropped in all cases whenever a civil suit
is pending in respect of the same subjectmatter between the same parties or
between the parties through whom the
panics are claiming their rights. Of
course, parallel proceedings should not be
allowed to continue, if a party under
Section 145, Cr. P. C.,can seek an
effective remedy/declaration from the
Civil Court. Even in such a case, the
proceedings under Section 145, Cr.P.C.
should be dropped only when the Civil
Court has passed some effective order
indicating as to which of the parties was
entitled to possession. In some cases, the
proceedings should also be dropped when
the Civil Court has appointed a receiver or
has made some arrangement for the
maintenance of such property. But, when
the Civil Court does not clarify the
position regarding the possession of the
contesting parties by passing an effective
order and simply passes an innocuous
order like maintenance of status quo, the
criminal proceedings are not to be
dropped because in that case both the
parties
may
stake
their
claim
for
possession and the situation may lead to
the breach of peace. In such cases, even
the proceeding under Sections 107/116,
Cr.P.C. may not prove to be effective and
the subject-matter may have to be attached
by the Criminal Court. Of course, orders
passed by the Criminal Court in such
cases shall be subject to the decision of the
Civil Court. Thus, the Magistrate is not
bound to drop the proceedings pending in
his Court in all cases under Section 145,
Cr. P. C. for the simple reason that a civil
suit is pending in the Civil Court in
respect of the same matter between the
same parties or through whom they are
claiming.

6. In the instant case, Civil Court
even did not pass order directing the
parties to maintain status quo although
the same would have been of no help as it
would not have indicated the actual
possession of either party. Thus, it is not a
case in which any help would have been
available to the Magistrate from the mere
pendency of the civil suit between the
parties
for
maintaining
peace.
The
Magistrate was duty bound to maintain
peace
and,
therefore,
had
got
no
alternative except to proceed further with
the proceedings under Section 145,
Cr.P.C. and the impugned attachment
order thus appealed to be perfectly legal
and valid. The proceedings under Section
145, Cr.P.C., therefore, continued to be
maintainable and the Magistrate could not
be directed by this Court to drop the
same."

15. A similar situation arose before
the Allahabad High Court in Raj Bahadur
and Others vs. State of U.P. and
Another, decided on 25 July, 1994 in
Criminal Revision No.1032 of 1994. In that
case, the civil court had passed orders
directing the parties to maintain status-quo.
The S.D.M. Court had dropped the
proceeding under section 145 Cr.P.C. on
the ground that the dispute between the
parties is pending before civil court and
revenue court and interim orders were in
operation between them. In revision, the
learned Sessions Judge disagreed with the
assertions on the ground that the orders
passed by the revenue and civil court for
10 All. Prabhakar Tiwari Vs. State of U.P. & Ors.
1059
maintaining status-quo did not and could
not effectively prevent the parties from
fighting for the land and property in dispute
and therefore the apprehension of breach of
peace remained. The High Court observed
in para- 3 and 4 as below:-

"3. It is not disputed that the
orders passed are only for maintaining
status quo. The order passed by the civil
court has already expired, as it was not
extended further. The purpose and objects
of the proceedings under section 145
Cr.P.C. is to maintain the law and order
and to prevent the parties from taking law
in their own hands which may create
breach of peace. The order passed by the
civil court or revenue court should be
such which may effectively prevent either
of the parties from entering into dispute
for taking possession of the property by
force. In case of an order for maintaining
status quo position about possession
remains vague and the parties are still left
to get it decided by themselves by use of
disputed property on the date the order of
status quo was passed. If the proceedings
under Section 145 Cr.P.C. are allowed to
be dropped in such state of affairs, the
objects
of
the
preventive
provisions
contained in original procedure code may
be defeated.

4. For the reasons stated above, I
do not find it proper to make any
interference in this revision. It is being left
open to the parties to make an application
before civil court or revenue court as the
parties are advised and to pray for passing
a definite order with regard to possession
of the parties during pendency of the suit.
If such an application is filed, same shall
be considered and decided in accordance
with law. After a fresh order is passed by
the civil court or revenue court, it shall be
open to the Magistrate to pass a fresh
order.
Subject
to
aforesaid
observation/directions, this revision is
rejected."

This view finds strength from the
above judgments that it is not always that
proceeding under section- 145 Cr.P.C. shall
not be maintainable, if civil suits are
pending.

16. Now, I come to second aspect of
the matter, whether and how far this Court
can interfere in exercise of powers under
Article 227 of the Constitution of India.
The Allahabad High Court in Premgiri vs.
State of U.P. and 3 Others, decided on
18.09.2019 in Matter under Article 227
No.5579 of 2019, has observed as below:-

"It is well settled that in exercise
of supervisory jurisdiction of this Court
over subordinate courts, the scope is very
limited and narrow. It is not to correct the
errors in the orders of the court below but
to remove manifest and patent violation of
law and jurisdiction without acting as an
appellate authority. This power involves a
duty on the High Court to keep the
inferior courts and tribunals within the
bounds of their authority and to see that
they act according to law. But this power
does not vest the High Court with any
unlimited prerogative to correct all species
of hardship or wrong decisions made
within the limits of the jurisdiction of the
Court or Tribunal. It must be restricted to
cases of grave dereliction of duty and
flagrant abuse of fundamental principle of
law or justice, where grave injustice would
be done unless the High Court interferes."

17. The power under Article 227 of
judicial superintendence cannot be used to
upset the conclusions of facts, howsoever
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
erroneous they may be, unless they are so
perverse and so unreasonable that no Court
could have reached them.

18. In Union of India and Others vs.
Himmat Singh Chahar, (1999) 4 SCC
521, it was observed that :-

"The powers under Article 227
of the Constitution of India are not
equivalent to the powers of appellate
authority enabling re-appreciation of
evidence. The court cannot alter the
conclusions merely on the ground of
insufficiency of evidence to arrive at a
particular conclusion."

19. Similar views were expressed in
Ajaib Singh vs. Sirhind Co-operative
Marketing
cum
Processing
Service
Society Ltd., (1999) 6 SCC 82 and in
Mohan Amba Prasad Agnihotri vs.
Bhaskar Balwant Aheer, AIR 2000 SC
931.

20. In Indian Overseas Bank vs.
Indian Overseas Bank Staff Canteen
Workers' Union, (2000) 4 SCC 245, the
Supreme Court observed that:-

"It is impermissible for the Writ
Court to reappreciate evidence liberally
and drawing conclusions on its own on
pure questions of fact for the reason that
it is not exercising appellate jurisdiction
over the awards passed by Tribunal. The
findings of fact recorded by the fact
finding authority duly constituted for the
purpose ordinarily should be considered to
have become final. The same cannot be
disturbed for the mere reason of having
based on materials or evidence not
sufficient or credible in the opinion of
Writ Court to warrant those findings. At
any rate, as long as they are based upon
some material which are relevant for the
purpose no interference is called for. Even
on the ground that there is yet another
view which can reasonably and possibly
be taken the High Court can not
interfere."

21. Similar views were expressed in
Union of India vs. Rajendra Prabhu,
(2001) 4 SCC 472 and in State of
Maharashtra vs. Milind and Others,
(2001) 1 SCC 4.

22. In Surya Dev Rai vs. Ram
Chander Rai and Others, (2003) 6 SCC
675, the Supreme Court gave guidelines
where it will be appropriate for the High
Court to exercise its supervisory powers.
The Supreme Court held that :-

"High Court can correct errors
of jurisdiction committed by subordinate
Courts. It also held that when subordinate
court has assumed a jurisdiction which it
does not have or has failed to exercise a
jurisdiction which it does have or
jurisdiction though available is being
exercised in a manner not permitted by
law and failure of justice or grave
injustice has occasioned, the Court may
step
in
to
exercise
its
supervisory
jurisdiction. However, it also said that be
it a writ of certiorari or exercise of
supervisory jurisdiction, none is available
to correct mere errors of fact or law unless
error is manifest and apparent on the face
of the proceedings such as when it is
based on clear ignorance or disregard of
the provisions of law; or, a grave injustice
or gross failure of justice has occasioned
thereby."

23. Again in T.G.N. Kumar vs. State
of Kerala and Others, (2011) 2 SCC 772,
the Supreme Court importantly observed
10 All. Prabhakar Tiwari Vs. State of U.P. & Ors.
1061
that the powers under Article 227 of the
Constitution of India are not merely
judicial but also administrative in the sense
that the courts and the tribunals have to be
kept within the bounds and to see that they
follow the law and do not cross their
jurisdictions. At the same time, the
Supreme Court cautioned that such powers
are to be exercised sparingly and only in
appropriate cases, to keep the subordinate
courts within the bounds of their authority.

24. With the aforesaid fetters of law
put on the exercise of jurisdiction under
Article 227 of the Constitution of India, I
proceed to take upon the matter at hand.

25. In order to appreciate the matter in
controversy better, the broader contours of
case
before
the
Court
are
worth
consideration.

i. In the instant case the petitioner
contended that the disputed land devolved
on him in the following manner:-

Initially
Ram
Poojan,
the
Manager of Patel Memorial Inter College
in whose name the land was registered in
revenue records executed a registered sale
deed in favour of Narendra Pathak and
Ratan Pathak as far back as in 1980; name
of Narendra Pathak and Ratan Pathak was
mutated in revenue records but the same
was challenged by one Ram Chet Pandey;
after several rounds of litigation regarding
mutation of names, a revision came to be
filed before the Board of Revenue by Jai
Prakash
Pandey
and
Others
against
Narendra Pathak (the predecessor in
interest of the petitioner), (It may be noted
that Jai Prakash Pandey and Others are
respondents herein). It is the case of the
petitioner that the land came in the hands of
Prabhakar Tiwari (the petitioner herein)
through a sale deed dated 23.06.2018 from
the sellers Narendra Pathak and Ratan
Pathak. The name of the petitioner stands
in the revenue papers since 2019. The
petitioner has said that the dispute arose
when he started constructing a boundary
wall on the disputed land.

ii. On the other hand, the
petitioner's claim has been disputed by the
respondents on the basis of averment that
their predecessor in interest Ram Poojan
had no right to transfer the land to
Narendra Pathak and Ratan Pathak as his
predecessor in interest, Smt. Shiv Kali had
no right to transfer the same in favour of
Ram Poojan through a gift deed. The
litigation has already run as regards the gift
deed by said Shiv Kali Devi, by filing an
Original Suit No.204 of 1960. Suit No.204
of 1960 "Shivkali vs. Patel Memorial
Higher
Secondary
School,
Ramsurat
Pandey and Others", was dismissed in
1983.

iii. From the counter affidavit and
other papers on record, it appears that the
ownership claims is highly contested and is
deep into legal wrangles and niceties.

iv. This is not disputed that Jai
Prakash Pandey (the respondent no.4
herein) has already filed a Suit No.1381 of
2018 for cancellation of the sale deed
executed in favour of the petitioner-
Prabhakar Tiwari, when the Inspector
Incharge Atraulia, Azamgarh submitted a
report as regards apprehended breach of
peace on 25.02.2020. Prolonged rounds of
litigation have already undergone. In fact,
litigation started from 1960, where Smt.
Shivkali filed a suit against Ram Poojan.
The mutation proceeding started by Ram
Poojan was dismissed in 1967. The latest
one is a civil suit between the two sides
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
which had already commenced in 2018.
Though the contention of the petitioner is
that in this suit, no permanent injunction
has been claimed and this suit only seeks a
relief of cancellation of sale deed, hence is
of no utility as far instant proceeding is
concerned. The impugned order was passed
in 2021.

v. This is noteworthy that none of
the sides has, before this Court produced
any copy of the plaint or the written
statement or any order interim or otherwise,
passed by the civil court, which may
support the claim of one side or the other.
The fact remains that not only matter of
title but also of possession is highly
contested.

vi. It is pertinent to point out that
the Executive Magistrate has given a
finding that none was in actual possession
since last 40 years.

26. From the papers on record, few
other relevant and disputed facts are
revealed, which are as below:-

That disputed land allegedly
belonged to one Mahaveer Pandey and
from him it was inherited by his four sons
(including one Ram Bali Pandey) and
thereafter it went to Ram Chet Pandey.
Ram Chet Pandey had contested the claims
of mutation done on 16.01.1992, whereby
in place of name of seller, Patel Memorial
Higher
Secondary
School
through
Manager Ram Poojan, name of buyers
Narendra Pathak and Ratan Pathak was
entered in revenue papers. Smt. Shivkali
was wife of Ram Bali Pandey and they had
no son, hence she had no right to execute a
gift deed, therefore no title was ever
conveyed to Ram Poojan, the Manager of
said school. This is the case of the opposite
side that when Ram Poojan came to know
that the gift deed was void, therefore he
executed sale deed in favour of Narendra
Pathak and Rathan Pathak in 1980. It may
be noted that the petitioner Prabhakar
Tiwari claims ownership and possession
from Narendra Pathak and Ratan Pathak.

27. In my view all facts and the case
presented by both the sides lead to an
irresistible inference that the title to the
property is mired in controversy. It requires
much legal pains to be taken, to come to a
concrete conclusion.

28. Perusal of the order shows that the
court
of
Sub-Divisional
Magistrate
followed the prescribed procedure; called
the parties to file the written statements,
took the evidence of both the sides and
came to a conclusion that none of the
parties was in 'actual possession' of the
property in dispute. This finding was given
on the basis of evidence. This Court in
exercise of powers of superintendence is
definitely not supposed to go for deep and
meticulous assessment of evidence of facts
and arrive at a conclusion of its own, unless
there
are
extraordinary
circumstances
impelling this Court to do so. The
conclusions arrived at by Sub Divisional
Magistrate court and affirmation of the
finding by the revisional court appears to
have been reached at, on the basis of
material before them. They have exercised
their discretionary judicial powers. This
also came into notice of the court below
that the dispute erupted only when one side
tried to raise a boundary wall and other side
objected. The court of Sub-Divisional
Magistrate also noticed that there is peace
for the time being, only because of the
order passed under section 145 Cr.P.C.,
otherwise some serious incident could have
taken place.
10 All. Prabhakar Tiwari Vs. State of U.P. & Ors.
1063

29. I went through all the papers on
record. Neither of the parties could show
any material, which may be of good
assistance to court in reaching an inference
as to who was, the petitioner or the
respondent, in actual possession on the date
notice was issued. Neither disputed gift
deed, sale deed or other papers regarding
title, nor entries in revenue record are
sufficient to establish the possession of any
particular party on the disputed land. The
entries in the revenue record are no doubt
important, but they are more important for
the purpose of collection of revenue. The
Executive Magistrate had a heavy burden
on his shoulders to decide whether any, if
so, which party was in actual possession.
There is probability that any error made in
such adjudication may not only ignite fresh
criminal incidents and may commence
another round of civil and criminal
litigations and therefore frustrate the very
purpose of drawing proceeding under
sections 145 and 146(1) Cr.P.C.

30. It may be noted that the scope of
proceeding under section 146(1) Cr.P.C.
has been left open by the substantive
provision of section- 145(4) Cr.P.C.
itself.

Section 145(4) Cr.P.C. is as
below:-

"4.
The
Magistrate
shall
then, without, reference to the merits
or the claims of any of the parties to
a right to possess the subject of
dispute, peruse the statements so put
in, hear the parties, receive all such
evidence as may be produced by
them, take such further evidence, if any,
as he thinks necessary, and, "if possible",
decide whether any and which of the
parties was, at the date of the order made
by him under sub- section (1), in
possession of the subject of dispute:
..........

The use of word "if possible" is
significant. The legislature was conscious
of the fact that there may be cases where it
may not be possible for the Executive
Magistrate to actually draw an inference
that
which
party
was
in
de-facto
possession. When the Magistrate is unable
to decide this issue of actual possession and
the case is one of emergency, he may
proceed to attach the subject of dispute.

31. The contingencies which open the
field for operation of section- 146(1)
Cr.P.C. must be understood properly.

(i) Whether the case is one of
emergency?

(ii) Whether none of the parties
were found in such possession as is
referred to section 145 Cr.P.C.?;

(iii) Whether the Magistrate is
unable to come to a definite conclusion
as
regard
which
party
was
in
possession?

Where
any
of
such
contingencies
exist,
the
Executive
Magistrate may proceed to attach the
property
until
a
competent
court
determines their rights. It may be noted
that such an order, though temporary in
nature shall remain in force till the
competent court decides the question
that which of the parties is entitled to
possess that property. There is a very
important proviso which empowers the
Magistrate to withdraw the attachment
any time in case no longer likelihood of
breach of peace could be found .
1064 INDIAN LAW REPORTS ALLAHABAD SERIES

In the instant case, the Magistrate
found one of the contingencies to exist and
the revisional court agreed with the same. I
do not find any good cause to interfere in
the inferences drawn by the courts below.

32. In this view of the matter, the
order of the City Magistrate cannot be
faulted. It is not at all the function of the
revisional court or this Court, in exercise of
powers
under
Article
227
of
the
Constitution of India to go through the
evidence once again and decide upon the
de-facto possession.

33. As far as the argument of the
petitioner that a supplementary report given
by the police station incharge was not taken
into consideration is concerned, this
submission does not appear to be correct.
The court of the Sub Divisional Magistrate
had perused the supplementary report,
while giving a finding that none of the
parties was found in possession. The parties
have all the opportunity to press their
claims before the civil court.

34. I do not find any infirmity of such
nature in the impugned orders so as to
justify the exercise of powers under Article
227 of the Constitution of India and
therefore, petition is dismissed.

35. Copy of the order be immediately
certified to the court concerned.

----------
(2023) 10 ILRA 1064
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.09.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.
Writ-A No. 4344 of 2023
With
Writ-A No. 7774 of 2023
With
Writ-A No. 7588 of 2023
With
Writ-A No. 7582 of 2023
and
Writ-A No. 6601 of 2023

Ishwar.Chand Sharma & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Syed Wajid Ali

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India,1950 -
Article 14 - Uttar Pradesh Collection Amins
Service Rules, 1974 - Rules 5, 17A - Uttar
Pradesh Qualifying Services for Pension
and Validation Act, 2021 - Old Pension
Scheme - Seasonal Collection Amins -
Regularisation - Pensionary Benefits -.
Petitioners, engaged as Seasonal Collection
Amins between 1984-1992 and regularised
between 2009-2010, retired between 20152021.