# Sharvan Kumar Kaushal v. S.D.M., Tehsil Utraula, Balrampur & Ors

- **Citation:** (2021) 11 ILRA 216
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-27
- **Case number:** Misc. Single No. 24785 of 2021
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharvan-kumar-kaushal-v-s-d-m-tehsil-utraula-balrampur-ors-46487
- **Pages:** 5

## Headnote

A. Civil Law - Code of Criminal Procedure, 1973
- Section 145 - The order of Civil Court not only
11 All. Sharvan Kumar Kaushal Vs. S.D.M., Tehsil Utraula, Balrampur & Ors.
217
binds the parties to the suit or proceeding but
also to others who cause to disturb the status
already existing when order is passed by the
court. (Para 16)
Civil Court , is the only Court to decide the right, title
and interest of the parties to have rightful possession
over the property so far as Sub Divisional Magistrate's
Court (Criminal Court) working under Section 145
Cr.P.C. is concerned. During pendency of the civil suit
with regard to the right, title and interest to
possession over the property is pending, Criminal
proceeding neither can be initiated nor decided prior
to the decision of the Civil Court. (Para 19)

Writ Petition Rejected. (E-10)

List of Cases cited:-

## Text

216 INDIAN LAW REPORTS ALLAHABAD SERIES
facts, it will adhere to that principle, and apply it
to all future cases where facts are substantially
the same. A deliberate and solemn decision of
court made after argument on question of law
fairly arising in the case, and necessary to its
determination, is an authority, or binding
precedent in the same court, or in other courts of
equal or lower rank in subsequent cases where
the very point is again in controversy unless
there are occasions when departure is rendered
necessary to vindicate plain, obvious principles
of law and remedy continued injustice. It should
be invariably applied and should not ordinarily
be departed from where decision is of long
standing and rights have been acquired under it,
unless considerations of public policy demand it.
But in Nakara [(1983) 1 SCC 305 : 1983 SCC
(L&S) 145 : (1983) 2 SCR 165] it was never
required to be decided that all the retirees
formed a class and no further classification was
permissible."

16. Considering the aforesaid facts, it is
apparent that for a decision to operate as Stare
Decisis, a deliberate and Solemn decision
determining a question of law is an authority or
a binding precedent in the same court or in other
courts of equal or lower rank in subsequent
cases where the very point is again in
controversy. Since in the orders cited by learned
State Counsel, the matters have been relegated
to the alternative remedy only on the basis of
statement made by the State Counsel without
adjudicating the question of maintainability of
petition under Article 227 of the Constitution of
India, the same would in the considered opinion
of this Court not operate as a binding precedent
in the present matter.

17. In such circumstances, it is held that
this Court would be well within its rights and
limitations to exercise power under Article 227
of the Constitution of India to issue directions to
the authorities concerned to adhere to the time
limitation provided under Rule 34 and 183 as
indicated herein above. As such the petition
under Article 227 of the Constitution of India for
the purposes of issuance of directions to the
authorities as made in the prayer is held to be
maintainable.

18.

Considering
the
facts
and
circumstances of the case, particularly the fact
that
Appeal
No.0824/2020
is
pending
consideration before the authority concerned
since 2020, a direction is issued to the opposite
party no.1 i.e. Sub-Divisional Officer, TehsilMilkipur, District Ayodhya to decide the appeal
under section 35(2) of U.P. Revenue Code, 2006
bearing Appeal No.0824/2020, Computerized
case No. T-202004230400824, Ram Chandar
versus Rakesh Kumar and others expeditiously
keeping adherence to the time limit indicated in
Rule 183 of the Rules of 2016 or to indicate
reason for not adhering to the same.

19. In view of aforesaid, the writ petition
stands disposed of.
----------
(2021)11ILR A216
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.10.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Misc. Single No. 24785 of 2021

Sharvan Kumar Kaushal ...Petitioner
Versus
S.D.M., Tehsil Utraula, Balrampur & Ors.
 ...Respondents

Counsel for the Petitioner:
Mohd. Waris Farooqui

Counsel for the Respondents:
G.A.

A. Civil Law - Code of Criminal Procedure, 1973
- Section 145 - The order of Civil Court not only
11 All. Sharvan Kumar Kaushal Vs. S.D.M., Tehsil Utraula, Balrampur & Ors.
217
binds the parties to the suit or proceeding but
also to others who cause to disturb the status
already existing when order is passed by the
court. (Para 16)
Civil Court , is the only Court to decide the right, title
and interest of the parties to have rightful possession
over the property so far as Sub Divisional Magistrate's
Court (Criminal Court) working under Section 145
Cr.P.C. is concerned. During pendency of the civil suit
with regard to the right, title and interest to
possession over the property is pending, Criminal
proceeding neither can be initiated nor decided prior
to the decision of the Civil Court. (Para 19)

Writ Petition Rejected. (E-10)

List of Cases cited:-

1. Ram Sumer Puri Mahant Vs St of U.P. & ors. (1985)
1 SCC 427 (followed)
(Delivered by Hon'ble Vikas Kunvar Srivastav, J.)

1. The case is called out.

2. Learned counsel for the petitioner
Mohd. Waris Farooqui, Advocate and learned
A.G.A. for the State Sri Balkeshwar Srivastav,
Advocate are present in the Court.

3. The present writ petition is filed for
seeking following relief:-

"Issue a writ, order or direction in the
nature of mandamus commanding the Sub
Divisional Magistrate (opposite party no.1) to
decide the application moved by the private
respondents under Section 145 (1) Cr.P.C.
(Case No.1916 of 2021, Narsingh Narayan
Mishra and another Vs. Shrawan Kumar
Kaushal) within a time specified by this Hon'ble
Court in the light of the report submitted by the
police
concerned
and
tehsil
authorities
(Annexure No.3 and 4 to the writ petition).

4. The Said relief is sought in the
circumstance as stated in the pleading itself by
the petitioner, as the Opposite Party No.1-Sub
Divisional Magistrate, Tehsil Utraula, District
Balrampur is not taking any decision upon the
application moved by the private respondent
(opposite party nos.2 & 3) namely Narsingh
Narayan Mishra and Upendra Narayan Mishra
under Section 145 Cr.P.C.

5. The petitioner has not stated the
detailed description of the property under
dispute between the contesting parties to the
petition namely the petitioner and the private
opposite party nos.2 & 3 nor has described the
nature of the dispute, however, it is referred in
para 3 of the petition that on 05.02.2021, an
application was moved under Section 145
Cr.P.C. before the Court of Sub Divisional
Magistrate, Tehsil Utraula, District Balrampur
which is annexed as annexure no.1 to the
petition. The application which is moved by
the private opposite party nos.2 & 3 reveals a
dispute with regard to the land property being
part and parcel of the gata no.711 recorded in
the revenue records as abadi. A map is drawn
at the bottom of the application showing the
possession on the spot of the disputed property
abutted on the northern boundary, the house of
opposite parties is situated, the southern
boundary of the disputed property is abutting
the house of one Ram Gopal. The opposite
parties claimed themselves in possession of
the said disputed land since before 78 years
from the time of their ancestors.

6. It is further claimed by the opposite
parties that the present petitioner (opposite party
in application under Section 145 Cr.P.C.
aforesaid) have illegally occupied and possessed
forcibly the land without having any delay.

7. It is pertinent to state here that even the
petition has not pleaded the title over the
disputed land if belongs to the petitioner. An
order of status quo was passed by the learned
Sub Divisional Magistrate with the registration
218 INDIAN LAW REPORTS ALLAHABAD SERIES
of application directing the parties to maintain
status quo.

8. It is further stated in para 6 of the
petition that Revenue Inspector/Tehsildar on the
direction
of
Sub
Divisional
Magistrate
conducted an inquiry and submitted it's report on
12.04.2021 alongwith statement recorded during
the course of inquiry and an objection against
the proceeding was filed by the petitioner on
09.03.2021
before
the
Sub
Divisional
Magistrate.

9. On 24.03.2021, a Civil Suit was filed
before the Court of Civil Judge, Senior Division,
Balrampur bearing Original Suit No.66 of 2021
(Virendra Prasad Vs. Santosh Mishra). The said
defendant namely Santosh Mishra in civil suit is
stated to be real uncle and cousin of the petitioner.
The plaintiff has not impleaded the petitioner as
party, therefore, he moved an application under
Order 1 Rule 10 (2) C.P.C. to implead him as
party-defendant. Accordingly, the Court passed the
order directing the plaintiff for impleadment of
petitioner-opposite party in the said suit on
09.08.2021. Copy of the said order alongwith copy
of the application under Order 1 Rule 10 (2) C.P.C.
is also made annexure to the petition.

10. Copy of the order dated 24.03.2021
passed by the trial court shows that on the
consensus of the plaintiff of the Original Suit
No.66 of 2021 and then existing defendant,
Santosh Kumar, the Court finding sufficient
ground to issue an interim injunction order,
directed the parties to maintain status quo on the
property detailed and described as a part of land
having area 16 X 85 feet abutting at northern
boundary of the house of Narsingh Narayan
Mishra and Upendra Narayan Mishra, the present
private respondent nos.2 & 3 and at southern
boundary, the house of Ram Gopal exists.

11. It is thus clear that the disputed
property in proceeding under Section 145
Cr.P.C. as well as in civil suit bearing Original
Suit No.66 of 2021 pending in the Court of Civil
Judge, Senior Division, Balrampur is the same
and status quo order is passed by both the Courts
with regard to the property.

12. The proceeding under Section 145
Cr.P.C. pending in the Court of Sub Divisional
Magistrate, Tehsil Utraula, Balrampur binds
from the status quo order, the present private
respondent, Narsingh Narayan Mishra and
Upendra Narayan Mishra (applicants) and
Sharvan Kumar Kaushal. The status quo order
passed by the Civil Court binds the plaintiff
(Virendra Prasad Vs. Santosh Mishra) as well as
Sharvan Kumar Kaushal who got impleaded
himself in the suit with regard to the same
property, which is subject matter of the
proceeding under Section 145 Cr.P.C. referred
above.

13. In the light of the aforesaid facts as
pleaded in the petition and as evident from the
copy of the documents made annexures thereto,
the moot question is that whether a direction to
the Sub Divisional Magistrate, Tehsil Utraula,
District Balrampur may be passed to proceed
under Section 145 Cr.P.C. expeditiously and to
decide the case, during the pendency of the civil
suit pending for decision over the right, title and
interest of the parties in the same property.

14. For the purpose of easy reference,
Section 145 Cr.P.C. is quoted hereunder, of
which scope and application is to preserve the
possession of the party on the date of dispute
reported to the Sub Divisional Magistrate.

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
11 All. Sharvan Kumar Kaushal Vs. S.D.M., Tehsil Utraula, Balrampur & Ors.
219
any land or water or the boundaries thereof,
within his 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) For the purposes of this section,
the expression" land or water" includes
buildings, markets, fisheries, crops or other
produce of land, and the rents or profits of any
such property.

(3) A copy of the order shall be served
in the manner provided by this Code for the
service of a summons upon such person or
persons as the Magistrate may direct, and at
least one copy shall be published by being
affixed to some conspicuous place at or near the
subject of dispute,

(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).

(5) Nothing in this section' shall
preclude any party so required to attend, or any
other person interested, from showing that no such
dispute as aforesaid exists or has existed; and in
such case the Magistrate shall cancel his said
order, and all further proceedings thereon shall be
stayed, but, subject to such cancellation, the order
of the Magistrate under subsection (1) shall be
final.

(6) (a) If the Magistrate decides that one
of the parties was, or should under the proviso to
sub- section (4) be treated as being, in such
possession of the said subject, he shall issue an
order declaring such party to be entitled to
possession thereof until evicted therefrom in due
course of law, and forbidding all disturbance of
such possession until such eviction; and when he
proceeds under the proviso to sub- section (4),
may restore to possession the party forcibly and
wrongfully dispossessed.

(b) The order made under this sub-
section shall be served and published in the
manner laid down in sub- section (3).

(7) When any party to any such
proceeding dies, the Magistrate may cause the
legal representative of the deceased party to be
made a party to the proceeding and shall
thereupon continue the inquiry, and if any
question
arises
as
to
who
the
legal
representative of a deceased party for the
purposes of such proceeding is, all persons
claiming to be representatives of the deceased
party shall be made parties thereto.

(8) If the Magistrate is of opinion that
any crop or other produce of the property, the
subject of dispute in a proceeding under this
section pending before him, is subject to speedy
and natural decay, he may make an order for the
proper custody or sale of. such property, and,
upon the completion of the inquiry, shall make
such order for the disposal of such property, or
the sale- proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he thinks fit,
at any stage of the proceedings under this
section, on the application of either party, issue
a summons to any witness directing him to
attend or to produce any document or thing.

(10) Nothing in this section shall be
deemed to be in derogation of the powers of the
Magistrate to proceed under section 107."
220 INDIAN LAW REPORTS ALLAHABAD SERIES

15. According to the Sub Section 6(a) of
the Section 145 Cr.P.C., if the Sub Divisional
Magistrate is directed as sought by the petitioner
in relief no.1, to decide and conclude the case
under Section 145 Cr.P.C. pending before him
then he would have a duty under order of this
Court to decide one of the parties was or should
under the proviso to sub- section (4) be treated
as being, in such possession of the said subject,
he shall issue an order declaring such party to be
entitled to possession thereof until evicted
therefrom in due course of law, and forbidding
all disturbance of such possession until such
eviction; and when he proceeds under the
proviso to sub- section (4), may restore to
possession the party forcibly and wrongfully
dispossessed. It clearly means and purport
causing disturbances in the status-quo of the
property.

16. The order of status quo passed by the
Civil Court not only binds the parties to the suit
or proceeding but also to others who cause to
disturb the status already existing when the order
is passed by the Court.

17. Until the order of status quo passed by
the Civil Judge, Senior Division, Balrampur in
Original Suit No.66 of 2021 is in effect and
continuing, the status with regard to the possession
cannot be disturbed or altered.

18. It would be lawful for the petitioner to
seek remedy before the Civil Court itself as he
himself is party to the Original Suit No.66 of 2021
pending in the Court of Civil Judge, Senior
Division,
Balrampur.
The
Sub
Divisional
Magistrate, Tehsil Utraula, Balrampur cannot be
directed as sought in the petition to proceed under
Section 145 Cr.P.C. and conclude it this way or
that way.

19. Civil Court, is the only Court to decide
the right, title and interest of the parties to have
rightful possession over the property so far as Sub
Divisional Magistrate's Court (Criminal Court)
working under Section 145 Cr.P.C. is concerned, it
can only decide possession of the party on the date
of dispute. During the pendency of the civil suit
with regard to the right, title and interest and right
to possession over the property is pending,
Criminal proceeding neither can be initiated nor
decided prior to the decision of the Civil Court.

20. In Ram Sumer Puri Mahant Vs. State of
U.P. and Others reported in (1985) 1 SCC 427, it
is held:-

"When a civil litigation is pending for
the same property wherein the question of
possession is involved and the parties are in a
position to approach the civil court for interim
orders such as injunction or appointment of
receiver for adequate protection of the property
during pendency of the dispute, there is no
justification for initiating a parallel criminal
proceeding under Section 145 Cr.P.C. Multiplicity
of litigation is not in the interest of the parties nor
should pubic time be allowed to be wasted over
meaningless litigation. Therefore, the parallel
proceeding should not continue and the order of
the Magistrate directing initiation of such a
proceeding under Section 145 Cr.P.C. must be
quashed."

21. With the aforesaid observations, the
present writ petition is dismissed.
----------
(2021)11ILR A220
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.11.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Misc. Single No. 26611 of 2017

Shivanya Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents