# Suman Singh v. District Magistrate & Ors

- **Citation:** (2022) 11 ILRA 255
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-20
- **Case number:** Writ-C No. 12310 of 2022
- **Bench:** Siddhartha Varma, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suman-singh-v-district-magistrate-ors-47811
- **Pages:** 26

## Headnote

A. Civil Law - Constitution of India - Article
226 - Writ - Maintainability - Question of
facts - Judicial intervention in the matter to
be decided by Civil Court under the common
law, extent of - Held, under Article 226 of
the Constitution of India disputed questions
cannot be gone into, particularly in view of
the fact that though one fraction is coming
up with a stand that its land has been
encroached upon by other fraction, but the
other fraction is disputing the same - Once
the parties are claiming their right before
the Civil Court while taking recourse to the
remedies as available under law, then
proceedings under Article 226 of the
Constitution of India are not maintainable.
(Para 42 and 44)
B. Civil law - Constitution of India -
Article 226 - Civil Procedure Code, 1908 -
O. I R. 10 and O. VI R. 17 - Writ
jurisdiction - Matter though involves
question of facts, but allegation made is
against the St. and its functionaries -
Scope of judicial interference by High
Court - Held, writ jurisdiction is not the
appropriate remedy - In view of the
provisions contained under O. I R. 10 of
the C.P.C., it is always open to prties to
file appropriate application for not only
impleading the St. and instrumentalities
but also preferring appropriate application
under O. VI R. 17 of C.P.C. for amending
plaint while seeking relief of recovery of
possession
of
their
claimed
land/
premises. (Para 47 and 48)
Writ petition dismissed. (E-1)
256 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:-

## Text

_Characters 0–39,825 of 91,608. This is a partial read: ask again with offset=39825 for what follows._

11 All. Suman Singh Vs. District Magistrate & Ors.
255
by the refusal to grant leave under Section
378(3) Cr.P.C. by the High Court. The right
of the victim to file an appeal in terms of
proviso to Section 372 Cr.P.C. would thus
stand unhindered. The above interpretation
would subserve the object of provision for
grant of leave to the State to file an appeal
against the order of acquittal while
maintaining the right of a victim to prefer
an appeal under Section 372 Cr.P.C.

16. The up shot of the above deliberation
is that it is not mandatory for the High Court to
summon the lower court record in every case
before deciding the application for grant of
leave under Section 378(3) Cr.P.C. We hasten
to add that the right of the appellate court to
summon the lower court record in an
appropriate matter always subsists. It is for the
High Court to decide on the basis of facts and
circumstances of each case whether the
application for grant of leave requires the
perusal of the lower court records or not? We,
therefore, hold that it is not necessary for this
Court to call for the lower court records for
consideration of application under Section
378(3) Cr.P.C., in every case or as a matter of
routine.

17. As prayed by Sri S.A. Murtaza,
learned A.G.A., put up this case, once again, on
29.09.2022 for consideration of application by
the State filed under Section 378(3) Cr.P.C.
----------
(2022) 11 ILRA 255
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ-C No. 12310 of 2022
With
Writ-C No. 24798 of 2022
Suman Singh ...Petitioner
Versus
District Magistrate & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhishek Kumar, Sri Ashish Kumar
Gupta

Counsel for the Respondents:
C.S.C., Sri Ajay Kumar Singh, Sri Ashish
Kumar Singh, Sri Sudharshan Singh, Sri
Tejas Singh

A. Civil Law - Constitution of India - Article
226 - Writ - Maintainability - Question of
facts - Judicial intervention in the matter to
be decided by Civil Court under the common
law, extent of - Held, under Article 226 of
the Constitution of India disputed questions
cannot be gone into, particularly in view of
the fact that though one fraction is coming
up with a stand that its land has been
encroached upon by other fraction, but the
other fraction is disputing the same - Once
the parties are claiming their right before
the Civil Court while taking recourse to the
remedies as available under law, then
proceedings under Article 226 of the
Constitution of India are not maintainable.
(Para 42 and 44)
B. Civil law - Constitution of India -
Article 226 - Civil Procedure Code, 1908 -
O. I R. 10 and O. VI R. 17 - Writ
jurisdiction - Matter though involves
question of facts, but allegation made is
against the St. and its functionaries -
Scope of judicial interference by High
Court - Held, writ jurisdiction is not the
appropriate remedy - In view of the
provisions contained under O. I R. 10 of
the C.P.C., it is always open to prties to
file appropriate application for not only
impleading the St. and instrumentalities
but also preferring appropriate application
under O. VI R. 17 of C.P.C. for amending
plaint while seeking relief of recovery of
possession
of
their
claimed
land/
premises. (Para 47 and 48)
Writ petition dismissed. (E-1)
256 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:-
1. Writ C No. 4362 of 2014; Sayeed Khan Vs St.
of U.P, decided on 3.11.2014 and 1.12.2014
2. Mohan Pandey & anr. Vs Usha Rani Rajgaria
(SMT) & ors.; (1992) 4 SCC 161
3. Swetambar Sthanakwasi Jain Samiti & anr. Vs
Alleged Committee of Management Sri R.J.I.
College, Agra & ors.; (1996) 3 SCC 11
4. Roshina T. Vs Abdul Ajeez K.T. & ors.; (2019)
2 SCC 329
5. Punjab National Bank & ors. Vs Atmanand
Singh; (2020) 5 SCC 256
6. Kishore Kumar Khaitan & anr. Vs Praveen
Kumar Singh; (2006) 3 SCC 312
7. Ramesh Hirachand Kundanwal Vs Municipal
Corporation Greater Bombay & ors.; (1992) 2
SCC 524
8. Civil Appeal No. 5522 to 5523 of 2019;
Gurmit Singh Bhatia Vs Kiran Kant Robinson &
ors. decided on 17.07.2019
(Delivered by Hon'ble Vikas Budhwar, J.)

1. The question which arises and falls
for consideration before this Court in the
present proceeding is with regard to the
extent of judicial intervention in matters,
where admittedly, parties are litigating their
rights under the common law before the
competent Civil Courts."

2. To begin with, one Smt. Suman
Singh had instituted Writ-C No. 12310 of
2022, Suman Singh vs. District Magistrate,
Varanasi and 7 others (hereinafter referred
to as the leading petition) before this Court
seeking following reliefs: -

"I. To issue a writ, order or
direction in the nature of mandamus
commanding the respondents to restore the
possession of petitioner over her plot No.
446 area 2250 square feet situated at
Village Susuwahi, Tehsil Sadar, District
Varanasi
from
which petitioner
was
dispossessed
illegally
by
the
state
authorities with connivance of private
respondents.

II. To issue any other writ, order
or direction which this Hon'ble Court may
deem fit and proper in the facts and
circumstances of the case.

III. To award the cost of petition
in favour of the petitioner."

3. Perusal of the relief as sought in the
above noted writ petition will clearly reveal
that the petitioner herein had sought writ,
order or direction in the nature of
mandamus commanding the respondents
including Smt. Manju Devi w/o Shri Gopal
Prasad, Smt. Sunita Devi w/o Lalji Gupta
and Sri Gopi Chandra Gupta son of Late
Dukhnti Sav, to restore the possession over
the plot no.446 are 2250 sq. ft. situate at
village Susuwhi, Tahsil Sadar, District
Varanasi, from which the petitioner claims
to be dispossessed illegally by the State
authorities in connivance with the private
respondents.

4. So far as Writ-C No. 24798 of
2022 (hereinafter referred to as the
'connected petition') is concerned, the same
has been instituted by Smt. Manju Devi
w/o Shri Gopal Prasad, Smt. Sunita Devi
w/o Lalji Gupta, Smt. Lali Devi w/o
Gopichand Gupta and Gopi Chandra Gupta
son of Late Dukhnti Sav, in which besides
the
State
and
its
functionaries,
the
petitioner in Writ-C No. 12310 of 2022,
Suman Singh vs. District Magistrate,
Varanasi and 7 others (hereinafter referred
to as to as 'the leading petition') has been
arrayed as Respondent no.5 seeking the
following reliefs: -

"I. Issue a writ, order or direction
in the nature of certiorari quashing exparte
11 All. Suman Singh Vs. District Magistrate & Ors.
257
order
dated
13.08.2022
passed
by
respondent no. 3 along with memo of
delivery of possession dated 16.08.2022
(Annexure 1 to the petition).

II. Issue a writ, order or direction
in the nature of Mandamus directing
respondents-authorities to restore back
possession
of
petitioners
over
their
property being Arazi No. 446 M area 4080
sq. ft., situate in Mauza Susuwahi, Pargana
Dehat
Amanat,
Tehsil
and
District
Varanasi,
by
directing
respondentsauthorities to maintain statusquo ante by
restoring
status
of
the
property
of
petitioners as stood prior to 16.08.2022 or
as existed on 10.08.2022 when the order
dated 10.08.2022 was passed by Hon'ble
Court in Writ Petition No. 12310 of 2022.

III. Issue an appropriate writ,
order or direction in the nature of
mandamus directing respondents to pay
compensation to the tune of Rs. 10 lakhs
towards the mental, physical agony and
distress suffered by the petitioner due to
wrongful and illegal dispossession of the
petitioner from his own property and
towards raising of constructions over the
property of petitioners by the respondent
no. 5.

IV. Issue writ of mandamus,
order or direction with this Hon'ble Court
deems fit and proper in the facts and
circumstances of the case.

V. Award the cost of the writ
petition to the petitioners."

5. A close scrutiny of the relief as
sought in the connected petition would go
to show that writ, order or direction in the
nature of certiorari has been sought for
quashing ex-parte order dated 13.8.2022
passed by Respondent no.3 (S.D.M. Sadar,
District Varanasi) along with the memo of
delivery of possession dated 16.8.2022,
whereby the private respondent in the
connected petition being the petitioner in
the leading petition Suman Singh has been
handed over the portion, which is owned
and possessed by the petitioner in the
connected petition, which even in fact is in
complete defiance of the interim injunction
so passed in the suit so instituted by the
petitioners in the connected petition.
Further relief has been sought for directing
the State respondents to restore back the
possession of the petitioner over their
property being Arazi no.446 M area 4080
sq. ft., situate in Mauza Susuwahi, Pargana
Dehat Amanat, Tehsil and District Varanasi
while restoring status quo ante by restoring
status of the property of petitioners as it
stood prior to 16.08.2022 or as it existed on
10.08.2022
when
the
order
dated
10.08.2022 was passed by Hon'ble Court in
the
leading
petition
and
to
further
compensate the petitioners while paying
compensation to the tune of Rs.10 lakhs.

6. Factual matrix of the case as
worded in the leading and connected
petitions are to the extent that Suman Singh
w/o Jai Shankar (hereinafter referred to as
petitioner in leading petition) claims to
have purchased land being plot no. 446
area 2250 sq. ft. situate at Village-
Susuwahi, Tahsil Sadar, District Varanasi
by virtue of three separate sale deeds dated
29.5.2013, 9.7.2013 and 19.10.2013.

7. The petitioner in the leading
petition further claims that consequent to
the execution of the above noted three sale
deeds, she was put in possession of the
aforesaid plot of land being plot no. 446
area 2250 sq. ft. and she was continuing
with enjoyment of the said piece of land.
According to the petitioner in the leading
writ petition, the respondents no. 4, 5 and 6
being Smt. Manju Devi w/o Gopal Prasad,
Smt. Sunita Devi w/o Lalji Gupta, Smt.
258 INDIAN LAW REPORTS ALLAHABAD SERIES
Lali Devi w/o Sri Gopichand Gupta by
virtue of the sale deed dated 26.9.2014
purchased a part of the plot no.446 situate
at Village- Susuwahi, Tahsil Sadar, District
Varanasi admeasuring 2040 sq. ft.

8. Smt. Suman Singh, petitioner in the
leading writ petition alleges that the
respondents no. 4, 5 and 6 in the leading
writ petition started interfering in the
peaceful possession of the plot no. 446
(area 2250 sq. ft.) so owned by the
petitioner, which compelled the petitioner
Suman Singh to institute Original Suit No.
317 of 2018 before the Court of Civil Judge
(Junior Division), Hawali, Varanasi titled
as Smt. Suman Singh vs. Manju Devi and 2
others
seeking
relief
of
permanent
injunction to restrain the defendants therein
and the private respondents in the leading
petition not to illegally dispossess the
petitioner from the plot in question and to
interfere in the peaceful possession of the
property owned by the petitioner.

9. Records reveal that on 6.3.2018,
the paper no. 6-C purported to be an
application under Order 39 Rule 1 and 2 of
CPC came to be decided by the Court of
Civil Judge (Junior Division) Hawali,
Varanasi in O.S. No. 317 of 2018, Smt.
Suman Singh vs. Manju Devi and others,
whereby temporary injunction was granted
in favour of the petitioner in the leading
writ petition restraining the defendant
therein and the private respondents in the
leading writ petition not to create any
obstacles
and
hindrances
over
the
possession of the petitioner herein till the
next date of listing.

10. Pleadings further reveal that the
private respondents in the leading writ
petition being Smt. Manju Devi w/o Sri
Gopal Prasad, Smt. Sunita Devi w/o Laljij
Gupta and Smt. Lali Devi w/o Sri
Gopichand Gupta instituted proceeding
being O.S. No.7 of 2019 before the Court
of Civil Judge (Senior Division), Varanasi
(Smt. Manju Devi and 2 others vs. Smt.
Suman Singh seeking relief of permanent
injunction restraining the petitioner in the
leading writ petition from interfering in the
peaceful possession over the property,
which is claimed to have been purchased
by them being plot no. 446 (area 4080 sq.
ft.) by virtue of sale deeds, which were two
in number, dated 26.9.2015 each of 2040
sq. ft. In the said suit, an application under
Order 39 Rules 1 and 2 seeking temporary
injunction was also filed, in which on
3.1.2019 the Court of Civil Judge (Senior
Division), Varanasi granted an ex-parte
interim injunction restraining the petitioner
in the leading writ petition and defendant in
the suit from creating any obstacle /
hindrance and restraining them from
illegally encroaching and taking possession
thereof.

11. On 19.1.2019, it appears that
respondent no.4 in the leading writ petition
being Smt Manju Devi w/o Sri Gopal
Prasad preferred an application before
respondent
no.3
being
Sub-Divisional
Magistrate,
Sadar,
District
Varanasi
seeking measurement of the plot no.446
admeasuring 2040 sq. ft. situate at VillageSusuwahi, Tahsil Sadar, District Varanasi.
On the said application, report was sought
and the Revenue Inspector, Chitaipur,
Tahsil Sadar, Varanasi submitted its report
before the Lekhpal, wherein it was recited
that
physical
inspection
had
been
conducted and it was found that the Arazi
No. 446 (area 2040 sq. ft.) is owned by the
applicant Smt. Manju Devi and so far as
measurement etc. is concerned, same can
be done under Section 24 of the under U.P.
Revenue Code, 2006.
11 All. Suman Singh Vs. District Magistrate & Ors.
259

12. Taking clue from the same, it
appears that respondent no.6 in the leading
writ petition being Smt. Lali Devi w/o Sri
Gopichand Gupta preferred proceedings
under Section 24 of the U.P. Revenue
Code, 2006 for demarcation, which came to
be decided in the proceedings in Case No.
17462 of 2019, Lali Devi Vs. State,
wherein proceeding for demarcation under
Section 24 of the U.P. Revenue Code, 2006
was forestalled on the ground that the
parties had subjected themselves before the
Civil Court under Common Law by filing
their respective suits. Thereafter respondent
no.7 being Gopi Chand Gupta husband of
respondent no.6 Lali Devi in the leading
petition preferred an application before
respondent
no.3/
Sub-Divisional
Magistrate, Sadar, District Varanasi on
11.7.2020, wherein he has alleged that
though they permanently reside in Bihar,
however, on 20.6.2020 in the night, the
husband of the petitioner herein in the
leading writ petition being Jai Shankar got
uprooted the gate and even in fact
encroached upon the land while committing
illegal acts despite the pendency of the civil
suits by both the fractions and thus request
was made that a suitable direction be issued
to the Police Station - Lanka and Chowki
Chitaipur
to
grant
protection
for
undertaking construction activities and the
other party be restrained from interfering in
any
manner
whatsoever.
The
said
application is on record as Annexure-8 at
page-60 of the paper-book. On the said
application, on 23.7.2020, the SDM,
Varanasi submitted his report before the
District
Magistrate,
Varanasi
dated
23.7.2020 mentioning therein that the
parties in question had purchased their
respective pieces of plots through sale
deeds and civil suit was pending before the
Civil Court and a first information report
had also been lodged against Jai Shankar
and his wife Suman Singh being FIR No.
402 of 2020, under Sections 447, 323, 504,
506 and 427 IPC and was pending along
with other criminal cases.

13. It appears from the record that
respondent
no.1
being
the
District
Magistrate, Varanasi on 30.7.2020 issued a
letter under his signatures addressed to
SSP, Varanasi reciting the fact that criminal
case was pending against the petitioner and
her husband in the leading writ petition as
referred to above and preventive action be
taken to maintain peace and harmony.

14. On 31.8.2020, respondent no.7,
Gopi Chandra Gupta son of Dukhanti Sav
preferred an application before Respondent
no.1/ District Magistrate, Varanasi for
providing Police Force and a Team of
Revenue Officers in order to remove illegal
possession over the plot, which had been
illegally encroached upon by the petitioner
in the leading writ petition. A copy of the
application dated 31.1.2020 is annexed as
Annexure-11 at page 69. On the said
application, the respondent no.2 being
A.D.M,
District
Varanasi
issued
a
communication addressed to respondent
no.3 / S.D.M., Sadar, Varanasi for taking
necessary action as per law.

15. Record reveals that on the basis of
the application so preferred on 31.8.2020
by Sri Gopi Chandra Gupta (respondent
no.7 in the leading writ petition) a
communication was sent on 3.9.2020 under
the
signature
of
Respondent
no.2
(Additional District Magistrate (City),
Varanasi) addressed to the Respondent no.3
/ S.D.M, Sadar, Varanasi. It appears that on
25.9.2020,
the
Revenue
Inspector,
Chitaipur, Sadar, Varanasi tendered his
report. Thereafter an order was passed on
19.10.2020,
pursuant
whereto,
the
260 INDIAN LAW REPORTS ALLAHABAD SERIES
possession of the petitioner over the land so
owned and possessed by the petitioner was
disturbed and the petitioner in the leading
writ petition was dispossessed by the Police
officials on 7.11.2021 and the said fact
found its presence in D.G. No. 067 dated
7.11.2021, copy whereof is annexed as
Annexure-13-A at page 82/83 of the paperbook.

16. The petitioner being aggrieved against
her dispossession from the property in question
preferred a representation on 9.11.2020 before
the District Magistrate, Varanasi/ respondent
no.1 and alleging non-cooperation from it, she
approached
the
Commissioner,
Varanasi
Region, Varanasi on 9.11.2020. Records reveal
that on 11.11.2020. The Commissioner,
Varanasi
Region,
Varanasi
sent
a
communication to District Magistrate, Varanasi
for taking appropriate action.

17.

Alleging
dispossession
and
consequent harassment, the petitioner has filed
the leading writ petition.

18. On 14.7.2022, this Court proceeded to
pass the following order: -

"Supplementary affidavit filed today
is taken on record.

Indisputably, two civil suits are
pending between the petitioner and private
respondents in respect of plot no. 446. One of
the suit was filed by the petitioner against the
private respondents wherein an order of ad
interim temporary injunction is operating in
favour of the petitioner, against the private
respondents. Another suit bearing no. 7 of 2019
is pending at the behest of private respondents
against the petitioner in which also there is an
interim injunction order in their favour.

It seems that while the suits
remain pending, private respondent no. 7
filed
an
application
before
the
administrative
authorities
alleging
violation of injunction order passed in his
suit by the petitioner. It was alleged that
the petitioner had taken possession of his
property in defiance of the injunction
order. The prayer made in the application
was for ensuring removal of unauthorized
possession of the petitioner. On the said
application, the Naib Tehsildar made an
endorsement that the application was in
respect of the grievance of the private
respondents relating to a dispute of
possession of the subject land. There is
another endorsement calling for certain
report and then an order by Sub-Divisional
Magistrate,
Sadar,
Varanasi
dated
12.10.2020 directing for constitution of a
revenue team under Naib Tehsildar with
further direction to the police to take action
in the matter. The GD entry of 7.11.2020
shows that in pursuance of the direction of
Sub-Divisional
Magistrate,
Sadar
the
police acting in an adjudicatory role in
respect of dispute relating to possession
between the parties dispossessed the
petitioner thereby seeking to restore status
quo ante.

It is vehemently contended by
learned counsel for the petitioner that the
administrative authorities as well as the
police had no jurisdiction in the matter
particularly, when the dispute was pending
before the civil court.

We find considerable force in the
submission of learned counsel for the
petitioner. Prima facie, we find that the
Sub-Divisional
Magistrate
who
has
directed the police force to intervene in the
matter and under which direction, the
police had dispossessed the petitioner,
amounts
to
a
gross
abuse
of
the
administrative powers. There is no order of
the civil court holding that there was
breach of injunction order nor any
direction for restoring status quo ante.
11 All. Suman Singh Vs. District Magistrate & Ors.
261

We call upon respondent no.3 to
remain present in the Court along with
entire record and explain by filing his
affidavit that under which provision of law
he had directed the police to intervene in
the matter in absence of any duly
constituted
proceeding
before
him,
ignoring the fact that the dispute between
the parties was pending before the civil
court.

We may observe that the only role of
the administrative authorities could be in
relation to maintenance of law and order as
also rightly directed by the District Magistrate
in the first instance when the application was
put up before him but we find that respondent
no.3 has exceeded his authority in issuing the
impugned direction and getting the petitioner
dispossessed.

Meanwhile, we leave it open to
respondent no.3, to revisit the matter and take
remedial steps, if he deems fit and proper and
in which event his personal appearance will
remain dispensed with and an affidavit filed to
the above effect will suffice.

List as fresh on 21st July, 2022.

Sri
Dilip
Kesarwani,
learned
Additional Chief Standing Counsel will
communicate the instant order to respondent
no.3 for necessary compliance."

19. An affidavit was filed on behalf of
Respondent no.3 being S.D.M, Sadar,
District Varanasi (present incumbent),
wherein the Respondent no.3 in the leading
writ petition had come up with a stand that
she had joined the post in question on
1.7.2022 and the order was passed by the
predecessor and thus the deponent therein
had sought time to revisit the matter in
compliance of the above noted order.

20. However, on 21.7.2022, this
Court proceeded to pass the following
order:

"Sri Sudarshan Singh has entered
appearance on behalf of respondents no.4 to
7.

An
application
supported
by
affidavit of the incumbent on the post of
S.D.M., Sadar, Varanasi has been filed
stating that she joined the post on 1.07.2022.
The action impugned was taken by her
predecessor in office. She has prayed for two
weeks further time to revisit the matter.

By our previous order dated
14.07.2022, we had directed respondent no.3
to remain present in the Court alongwith
entire record and explain by filing his
affidavit that under which provision of law,
he had directed the police to intervene in a
civil dispute between the parties.

The present incumbent informs the
Court that the earlier order was passed by
Sri Pramod Kumar Pandey, who is now
posted as S.D.M., Lucknow. We direct the
District Magistrate, Lucknow to serve a copy
of the instant order as well as previous order
of this Court dated 14.07.2022 upon Sri
Pramod Kumar Pandey so that the orders are
duly complied with. The said officer shall file
his personal affidavit in compliance of our
previous order dated 14.07.2022 and will
remain present in Court on the next date.

The present incumbent will file her
personal affidavit disclosing therein the
decision taken by her in the meantime.

Registrar
(Compliance)
shall
communicate the instant order as well as
previous order dated 14.07.2022 to the
District Magistrate, Lucknow for the purpose
of serving these orders upon Sri Pramod
Kumar Pandey posted as S.D.M. in District
Lucknow.

List as fresh on 10.08.2022."

21. A personal affidavit was filed on
behalf of the SDM, Varanasi / Respondent
no.3 (present incumbent) manning the post
in question. In the personal affidavit, in
262 INDIAN LAW REPORTS ALLAHABAD SERIES
paragraphs- 5 to 8, the following averments
were made: -

"5.
That
the
deponent
in
compliance of the order dated 14.07.2022
and 21.07.2022 passed by this Hon'ble Court
issued office order dated 01.08.2022 for spot
enquiry/ verification in respect of the
petitioner Smt. Suman Singh W/o Jaishankar
Singh, constituting the team of the Revenue
Officers mentioned therein along with the
deponent, informing the both parties for spot
enquiry/ verification fixing 03.08.2022 at 10
AM and also informed the S.O., Chitaipur,
Varanasi to be present on the spot. Copy of
the order dated 01.08.2022 passed by the
Respondent No.3, is being annexed herewith
and is marked as Annexure A-1 to this
affidavit.

6. That the notices of the said spot
enquiry/verification was duly served to the
petitioner, Suman Singh W/o Shri Jaishankar,
who refused to take notice thereof on
01.08.2022 and the Notice to Smt. Lali Devi
W/o Gopichand Gupta was also informed
through telephone and informed to her
Karinda at spot, the copies of the said service
of the Notices/information dated 01.08.2022
are annexed collectively as Annexure No.A-2
to this affidavit.

7. That the deponent reached at the
spot in question on 03.08.2022 along with the
Revenue Team with the Police Team and
make enquiry/verification of the facts at spot
Arazi Plot no. 446, Village-Susuwahi,
Pargana-Dehat
Amanat,
Tahsil-Sadar,
District-Varanasi and the spot inspection/
measurement was conducted in the presence
of the petitioner and the representative of
other respondents no. 4 to 6 namely,
Gopichandra and in presence of the Revenue
Team referred to above and the Police Team,
PS-Chitaipur, Varanasi. The content of the
spot inquiry report reveals the following
facts:

(a) That as per the record the
petitioner Smt. Suman Singh W/o Shri
Jaishanker purchased land in Arazi no.
446, area-2250 sq. ft. i.e. 209.10 meter
through three different sale deeds each of
750 sq. ft. through Sale Deeds dated
29.05.2013 09.07.2013 and 19.10.2013
from the Vendors thereof. The copy of the
aforesaid sale deeds are annexed as
Annexure Nos.A-3, A-4 & A-5 to this
affidavit.

(b)
That
similarly
the
Respondents no. 4, 5 & 6 Smt. Manju Devi,
Sunita Devi and Smt. Lali Devi also
purchased the land forming S.M. Plot no.
446, area-4080 sq. ft. (379.18 sq. mtr.)
situate at Village-Susuwahi, ParganaDehat Amanat, Tahsil-Sadar, DistrictVaranasi, through two different registered
sale deeds dated 26.09.2015 each of area2040 sq ft. i.e. 189.59) sq. mtrs. from the
Vendors thereof. The copies of the said sale
deeds dated 26.09.2014, are annexed as
Annexure No.A-6 & A-7 to this affidavit.

(c)
That
according
to
the
boundaries mentioned in the said sale
deeds, towards the south of the land of
petitioner Suman Singh, there is pucca
Road (Rasta) and towards east, there is
proposed Kachcha Rasta and towards
North the land of Respondent nos. 4 to 6
are lying. The sketch Plan of the spot has
been prepared at the spot showing the land
(A),
(B)
and
(C)
along
with
the
constructions.

(d) That it was found on spot
enquiry, that the petitioner Smt. Suman
Singh, was found in possession of the Plot
no 446, area 2321.90 sq. ft. (215.71 Sq.
Mtr.) along with the constructions made by
her at the said land, whereas her area of
the sale deed is total 2250 sq. ft. (209.03
Sq. Mtr.) only which is marked as (A) in the
Sketch
Plan
of
the
spot
enquiry/verification.
11 All. Suman Singh Vs. District Magistrate & Ors.
263

(e) That there is land area
(610.41 sq. ft. lying towards North adjacent
of the land of the Petitioner Smt. Suman
Singh, marked with 'B' in the Sketch Plan.

(f) That towards the North of the
said vacant land marked with 'B' the land
of the Respondents no 4 to 6 along with
Boundaries area-3373.59 sq ft. are lying
which is marked with 'C' in the Sketch
Plan.

(g) That according to the spot
enquiry/ verification it has been found that
the petitioner Smt. Suman Singh, who has
purchased only 2250 sq. ft. (209.03 Sq.
Mtr.) but she is in possession over 2321.09
sq. ft. (215.71 Sq. Mtr.) over which she has
constructed multi-storied building along
with Sahan and towards North of the said
multi-storied building the land area 610.41
sq. ft. is lying vacant and towards North of
the said land the Respondent Nos. 4 to 6
are in possession over 3373.59 sq.ft.
whereas their purchased area is 4080 sq. ft.

(h) That the Petitioner and the
Respondents no. 4 to 6 have approached to
the Civil Court of competent jurisdiction
and they have been granted interim
injunctions orders with respect to their
respective area of the land vice versa,
which is mentioned in the spot inspection
Report.

Copies of the injunction orders
have already been annexed as Annexure
No.2 and 4 to Writ Petition.

The
copy
of
the
spot
enquiry/verification dated 03.08.2022 is
annexed as Annexure No.A-8 to this
affidavit.

8. That it is respectfully stated that
from the perusal of the interim injunction
passed by the Civil Court dated 06.03.2018 in
the Suit No.317 of 2018 filed by the petitioner
it is evident that the interim injunction was
with respect to area of 209.10 sq. mtr., out of
the total area of the Arazi No.446 as
mentioned in the plaint. Apart from the
aforesaid purchased land there is land area
610.41 sq. ft. lying vacant towards North
adjacent of the land of the Petitioner Smt.
Suman Singh, marked with 'B' in the Sketch
Plan. The petitioner is still in possession of
the total area of the land in respect of which
the interim injunction was granted by the
Civil Court. Therefore, there is no violation
of the order dated 06.03.2018 passed by the
Civil Court in Suit No.317 of 2018. Under the
aforesaid circumstances no further action is
required by the deponent as remedial
measure with regard to the land of the
petitioner."

22. On 10.8.2022, the following orders
were passed: -

"Sri Ajay Kumar Singh, Advocate
has filed his vakalatnama on behalf of
respondents no.4 to 7. The same is taken on
record.

The earlier incumbent on the post
of Sub-Divisional Magistrate on whose
direction
the
petitioner
was
allegedly
dispossessed has filed his personal affidavit.
Another affidavit has been filed on behalf of
the present incumbent on the said post. Both
the affidavits are taken on record.

Sri
M.C.
Chaturvedi,
learned
Additional Advocate General on behalf of
State Respondents prays for and is granted a
week further time to file appropriate
affidavits.
Accordingly,
the
matter
is
adjourned for a week.

List as fresh on 18.8.2022.

In the meantime, respondent no.3
will file a better affidavit.

When the case is listed next, name
of Sri Ajay Kumar Singh shall be shown in
the cause list as counsel for the respondents."

23. Thereafter in compliance of the
order dated 10.8.2022 passed by this Court,
264 INDIAN LAW REPORTS ALLAHABAD SERIES
the earlier incumbent, who was holding the
post of SDM, Sadar, Varanasi submitted a
personal affidavit dated 18.8.2022 followed
by an affidavit filed on behalf of the
present incumbent holding the post of
SDM,
Sadar,
Varanasi,
wherein
in
paragraphs 3 and 4, the following have
been averred: -

"3. That it is respectfully stated
that in compliance of the order dated
14.07.2022 as
well
as
order dated
21.07.2022 passed by this Hon'bie Court
the deponent revisited the matter and
passed order dated 13.08.2022 directing
the petitioner as well as Respondent No.4
to 6 to restore the status with regard to
possession as was existing on 31.08.2020.
Copy of order dated 13.08.2022 passed by
the deponent, is being annexed herewith
and is marked as Annexure A-1 to this
affidavit.

4. That the aforesaid order
passed by the deponent was duly complied
with and the possession of the petitioner
was restored on 16.08.2022 in the presence
of the Revenue Team. The proceeding of
restoration of possession has been duly
signed by the petitioner. Copy of the
aforesaid proceeding dated 16.08.2022, is
being annexed herewith and is marked as
Annexure A-2 to this affidavit."

24. As per the affidavit dated
18.8.2022 of Respondent no. 3/ S.D.M.,
Sadar, Varanasi, a stand has been taken that
Respondent no.3 has revisited the matter
while passing the order dated 13.8.2022
directing the petitioner herein and the
respondent nos. 4 and 6 in the leading
petition to restore status quo ante with
regard to the possession as existed on
31.8.2020 and the parties were also put to
liberty to get their individual rights decided
under Common Law in the pending suits.
Further, it has also been narrated that on
spot inquiry, it was found that the petitioner
in the leading petition, Smt. Suman Singh
was found in possession of plot no. 446
(area
2321.90
sq.
ft.)
along
with
constructions made by her, whereas her
area of sale deed is total 2250 sq. ft.
(209.10 sq. meter) and thus she was in
possession of excess land.

25. We have heard Shri Abhishek
Kumar, learned counsel for the petitioner in
the leading petition and for Respondent
no.5 in the connected writ petition, Sri
M.C. Chaturvedi, learned Addl. Advocate
General assisted by Ms. Akanksha Sharma,
Advocate for State-respondent as well as
Sri Ajay Kumar Singh along with Shri
Tejas Singh appearing for Respondents no.
4 to 7 in the leading petition and petitioners
in the connected writ petition.

26. Since the parties in question are
represented through their counsel and they
have given their consent for disposal of the
writ petition at the admission stage on the
basis of the affidavits so exchanged
between
them,
thus
this
Court
is
proceedings to finally decide the issue in
question.

27. Undisputedly the petitioner in
leading writ petition claims to be the owner
of the land admeasuring 225.06 sq. mt.
being plot no. 446 situate at Village
Sushwahi, Tehsil Sadar, District Varanasi
by virtue of three separate sale deeds dated
29.5.2013, 9.7.2013 and 19.10.2015 for an
area of 750 sq. ft. each. Similarly, so far as
respondent nos. 4 and 6 in the leading writ
petition are concerned, they claim to have
been in possession and recorded title
holders of an area of 4080 sq. ft. of the
aforesaid Arazi/ plot of land by virtue of
two registered sale deeds dated 26.9.2015.
11 All. Suman Singh Vs. District Magistrate & Ors.
265

28. It is not under dispute that the
petitioner in the leading writ petition being
Suman Singh had instituted Original Suit
no.317 of 2018 before the Court of Civil
Judge (Senior Division), Varanasi, Smt.
Suman Singh vs. Smt. Manju Devi and 2
others, in which she had obtained the
interim injunction dated 06.3.2018, so
much so, respondent nos. 4 to 6 in the
leading writ petition had also instituted
O.S. No.7 of 2019 before the Court of Civil
Judge (Senior Division), Varanasi, Smt.
Manju Devi and 2 others vs. Smt. Suman
Singh, in which injunction had been
granted on 3.1.2019 by Civil Judge (Senior
Division), Varanasi.

29. As per the pleadings so set forth in
both the writ petitions, it is explicitly clear
that both the parties are litigating their rights
before the competent court of law and as per
their own saying they are possessed with
injunction orders in their respective suits.
Notably as discussed above at first instance,
Respondent no.4 in the leading petition and
petitioner no.1 in the connected writ petition
sought administrative intervention before
Respondent no.3 for measurement of her
plot on 19.1.2019 and on 29.1.2019,
Respondent no.3 informed Respondent no.4
in the leading petition and the petitioner in
the connected writ petition that she should
undertake proceedings for demarcation
under Section 24 of the U.P. Revenue Code.
Thereafter Respondent no.6 in the leading
writ petition and petitioner no.3 in the
connected writ petition took recourse to
demarcation, however Respondent no.3
forestalled the claim for demarcation vide
order dated 22.6.2022 on the ground that the
matter was pending before the competent
civil court and thus it was not possible to
conduct
the
demarcation.
Being
unsuccessful on two occasions, Respondent
no.7 in the leading writ petition, who
happens to be the husband of Respondent
no.6 proceeded to make an application
before Respondent no.3 on 11.7.2020 with
regard to grant of security to raise
construction, as according to him the gates
had been uprooted and encroachment had
been made by the petitioners in the leading
writ petition. Sub-Divisional Magistrate
on the basis of the application so
preferred by Respondent no.7 in the
leading writ petition directed the Tahsil
Authorities to submit a report and on
23.7.2020, Tehsil Authorities tendered
their comments and a letter was thereafter
issued by Respondent no.3 which was
addressed to Respondent no.1. In the
meantime, on 30.7.2020 Respondent no.1
requested the SSP, Varanasi to take
preventive action against the petitioner in
the leading petition, in case they had
occupied and raised construction over the
land owned by others. Being not satisfied
with the above noted actions, the respondent
no.7 again preferred an application before
Respondent no.3 with a request to provide
police force and a team of police officials
to remove illegal possession over the land
so claimed to be possessed by Respondents
no. 4 to 7. Thereafter proceedings were
drawn and it is being alleged that the
possession of the land in question, which is
claimed to be possessed by the petitioner in
the leading writ petition stands delivered to
the respondents. The other side of the story
which is being sought to be erected by
Respondent no.4 to 7 in the leading writ
petition and petitioners no. 1 to 4 in the
connected petition is that now in the garb
of the orders passed by this Court on
14.7.2021 and 21.7.2021, the possession of
the land in question was being taken away
from them and was being handed over to
the petitioners in the leading writ petition,
putting them in possession over land which
was in excess of their ownership.
266 INDIAN LAW REPORTS ALLAHABAD SERIES

30. Sri Abhishek Kumar, learned
counsel for the petitioner in the leading writ
petition and Respondent no.5 in the
connected petition has sought to argue that
the taking over of the possession on
7.11.2020 by the district administration
pursuant to the application so preferred by
the private respondents in the leading writ
petition was without any authority of law,
as once the matter itself was engaging the
attention of the Civil Court in appropriate
proceedings by way of suits and injunction
orders were operating, then the District
Administration could not have intervened
in between and played an adjudicatory role.
To elaborate his submission, Sri Abhishek
Kumar
argued
that
the
district
administration was well aware about the
factum of the institution of the suit,
pendency and operation of injunction
orders and thus while taking resort to the
proceedings of handing over the possession
not only the orders of the Civil Courts were
circumvented,
but
the
administrative
authorities interfered with and obstructed
judicial proceedings.

31. According to Sri Abhishek
Kumar, pursuant to the orders passed by
this Court on 14.7.2021 and 21.7.2021,
now possession had been delivered to the
petitioner while passing the orders dated
13.8.2022 and 16.8.2022 and as per his
instructions, the petitioner in the leading
writ petition and Respondent no.5 in the
connected
writ
petition
had
neither
encroached nor was in possession of even a
single inch of land in excess, which was
claimed to be possessed by Respondents
no. 4 to 7 in the leading writ petition and
petitioner in the connected writ petition.

32. Sri Ajay Singh assisted by Sri
Tejas Singh who appears for Respondents
no.