# Virendra Singh v. Session Judge, Barabanki & Ors

- **Citation:** (2021) 11 ILRA 752
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-21
- **Case number:** Misc. Single No. 28498 of 2021
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-singh-v-session-judge-barabanki-ors-46695
- **Pages:** 6

## Headnote

Uma
Shankar
Sahai,Beena
Kishor,Madhav
Srivastava,Uma Shankar Sahai

A. Civil Law - Will - Criminal Procedure Code,
1973: Section 145, 146 - The Court observed that
where the respondents were in settled possession
since the life time of the recorded tenure holder and
by virtue of her will they continued with their
possession over the land, having been duly mutated
after the death of recorded tenure holder as
testamentary successors. The use and enjoyment of
the property possessed by them could not be
disturbed in exercise of power under Section 145/146
of Cr.P.C. by the Sub- Divisional Magistrate. The
Executive Magistrate cannot unnecessarily exercise
the power and put a clog upon the righteous use and
enjoyment of an immovable property, unless a
competent court of civil jurisdiction has ordered
adversely to his right, title and possession and/or
there is and emergent position of dispute between
the rival claimant with regard to land's title and
possession causing serious breach of peace. (Para 20,
21)

Petition Rejected. (E-10)

List of Cases cited:

## Text

752 INDIAN LAW REPORTS ALLAHABAD SERIES
action against the petitioner and in similar
circumstances this Court has provided the
interim protection, as appears from annexure
Nos. 2 to 5, which are the order(s) dated
13.09.2021, 11.02.2019 and 20.09.2021 passed
in Matters Under Article 227 No. 4322 of 2021,
Writ C No. 4220 of 2019, Writ C No. 23624 of
2019 and Writ C No. 19588 of 2021,
respectively.

48. Considering the aforesaid, this Court
provides that for a period of three months from
today or till the passing of order on interim relief
application, which ever is earlier, no coercive
action shall be taken against the petitioner.

49. The present petition is disposed of
finally in the above terms.
----------
(2021)12ILR A752
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.12.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Misc. Single No. 28498 of 2021

Virendra Singh ...Petitioner
Versus
Session Judge, Barabanki & Ors.
 ...Respondents

Counsel for the Petitioner:
Dr. Monica Priyadarshini, Rakesh Kumar

Counsel for the Respondents:
Uma
Shankar
Sahai,Beena
Kishor,Madhav
Srivastava,Uma Shankar Sahai

A. Civil Law - Will - Criminal Procedure Code,
1973: Section 145, 146 - The Court observed that
where the respondents were in settled possession
since the life time of the recorded tenure holder and
by virtue of her will they continued with their
possession over the land, having been duly mutated
after the death of recorded tenure holder as
testamentary successors. The use and enjoyment of
the property possessed by them could not be
disturbed in exercise of power under Section 145/146
of Cr.P.C. by the Sub- Divisional Magistrate. The
Executive Magistrate cannot unnecessarily exercise
the power and put a clog upon the righteous use and
enjoyment of an immovable property, unless a
competent court of civil jurisdiction has ordered
adversely to his right, title and possession and/or
there is and emergent position of dispute between
the rival claimant with regard to land's title and
possession causing serious breach of peace. (Para 20,
21)

Petition Rejected. (E-10)

List of Cases cited:

1. Sharvan kumar Kaushal Vs Sub Divisional
Magistrate, Tehsil Utraula, Balarampur & ors. 2021
SCC Online All 782
(Delivered by Hon'ble Vikas Kunvar Srivastav, J.)

1. Heard learned counsels for appellant, Sri
Rakesh Kumar and respondent, Sri U.S. Sahai,
Advocates.

2. The instant petition in hand is filed
under Article 227 of the Constitution of India
invoking the supervisory jurisdiction of this
court over the order dated 30.7.2020 of learned
Session Judge of District 'Barabanki' passed in
exercise of his revisional power over the order
dated 22.10.2020 of S.D.M., Nawabganj under
Section 145/146 of the Criminal Procedure
Code, 1973.

3. Briefly stating, the matter is with regard
to dispute as to the harvesting of paddy crop in
Plot no.950 situated in village Rustampurwa,
Khaspariya, District Barabanki between two
brothers, natural heirs of recorded owner Late
Krishna Kumari wife of Late Sri Shivpal Singh
her sons, namely the petitioner Virendra Singh
and opposite party no.6, Brijendra Singh with
opposite party no.2 to 5, her grand sons, the sons
of opposite party no.6. Late Krishan Kumari
11 All. Virendra Singh Vs. Session Judge, Barabanki & Ors.
753
who died on 14.8.2020 had executed a registered
will on 4.7.2013 in her life time bequeathing all
her properties movable and immovable to the
grand sons opposite parties no.2 to 5. Since, Late
Krishna Kumari was residing with her son
Brijendra Singh (opposite party no.6) therefore,
after the death the grandsons by virtue of the
registered will dated 4.7.2013 came into
possession of above said plot no.950 as rightful
title holder and their name is also mutated in the
revenue records in place of recorded tenure
holder Late Krishna Kumari on the basis of her
will.

4. Petitioner aggrieved from the 'will' dated
4.7.2013 filed a suit for cancellation of the same
and for injunction bearing original suit no.1032
of 2020 on 1.10.2020 in the court of Civil Judge
Junior Division which is pending for decision.
Since he, was allegedly causing interference in
use and enjoyment of property to the opposite
parties therefore, they approached to the
superintendent
of
Police,
'Barabanki'
on
7.10.2020 who referred the matter to the local
Police Chowki of Mohammadpur, P.S. Kotwali
Nagar. A report was submitted by the Inspector
in-charge of the said police post before Sub
Divisional Magistrate that a dispute is running
between the parties with regard to harvesting of
paddy crops and they are made bound of order
under Section 107/116 Cr.P.C. The Sub
Divisional Magistrate passed order under
Section 145 (1) Cr.P.C. and subsequently under
Section 146 Cr.P.C. on 22.10.2020.

5. The order dated 22.10.2020 aforesaid
was challenged by the opposite parties no.2 to 6
in revision before the court of District and
Sessions Judge, whose decision allowing the
revision is under challenge before this Court
quoting Section 146 of the Cr.P.C. the learned
Sessions Judge has observed:-

"Learned SDM has to record his
satisfaction regarding emergency of situation
and dilemma to the actual possessor over the
disputed property. Learned SDM may exercise
the power under Section 146(1) Cr.P.C. only
after satisfaction to the emergent situation and
unable to satisfy himself regarding the actual
possessor of the disputed property. The power
under Section 146(1) CrPC may not be
exercised without satisfaction of an emergency.

Learned SDM has no jurisdiction to
decide the right and title of parties. Any dispute
in regard to right and title of the parties may
only be decided by the Civil Court. In case of
pendency of Civil Suit regarding right and title
of parties in spite of issuance of injunction
order by the Civil Court, the collateral
proceeding under Sections 145, 146 CrPC is
not proper.

Learned SDM has passed the order of
attachment under section 146(1) CrPC merely
on the ground of apprehension to breach of
peace. Learned SDM has not recorded any
finding or observation in regard to emergent
situation. Learned SDM has not exercised
jurisdiction
properly
while
passing
the
impugned order. Mere apprehension of breach
of peace is not sufficient for attachment
proceeding under Section 146(1) CrPC."

6. To see whether the impugned order
passed by the learned Sessions Judge in revision
application is illegal or beyond the precedence
of law laid down by Hon'ble Apex Court and our
High Court on the subject two issues required to
be carved out in the context of present case.

(i) whether the learned Sub Divisional
Magistrate was right in passing order under
Section 145(1) and subsequent order under
Section 146 of the Cr.P.C.

(2) who just prior to the passing of the
order by Sub Divisional Magistrate under
Section 145 Cr.P.C. was in possession.
754 INDIAN LAW REPORTS ALLAHABAD SERIES

7. The two relevant Section viz. Section
145 and Section 146 of Cr.P.C. are quoted
herebelow for the purpose of easy reference in
discussion

"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 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.

146. Power to attach subject of dispute
and to appoint receiver.

(1) If the Magistrate at any time after
making the order under sub- section (1) of
section 145 considers the case to be one of
emergency, or if he decides that none of the
parties was then in such possession as is
referred to in section 145, or if he is unable to
satisfy himself as to which of them was then in
such possession of the subject of dispute, he may
attach the subject of dispute until a competent
Court has determined the rights of the parties
thereto with regard to the person entitled to the
possession
thereof:
Provided
that
such
Magistrate may withdraw the attachment at any
time if he is satisfied that there is no longer any
likelihood of breach of the peace with regard to
the subject of dispute.

(2) When the Magistrate attaches the
subject of dispute, he may, if no receiver in
relation to such subject of dispute has been
appointed by any Civil Court, make such
arrangements as he considers proper for looking
after the property or if he thinks fit, appoint a
receiver thereof, who shall have, subject to the
control of the Magistrate, all the powers of a
receiver appointed under the Code of Civil
Procedure, 1908 (5 of 1908 );

Provided that in the event of a receiver
being subsequently appointed in relation to the
subject of dispute by any Civil Court, the
Magistrate-

(a) shall order the receiver appointed by
him to hand over the possession of the subject of
dispute to the receiver appointed by the Civil
Court and shall thereafter discharge the receiver
appointed by him;

(b) may make such other incidental or
consequential orders as may be just."

8. Before discussing the issue no.1, it would
be relevant to state about the report of Inspector Incharge of Police Post Mohammadpur, District
Barabanki. He reported to the Sub Divisional
Magistrate, "the title and possession of Plot
No.947 belongs to the petitioner Virendra Singh,
plot No.947 to Brijendra Singh and Plot No.950 to
Late Krishna Kumari, their mother. The mother
Krishna Kumari used to reside with Brijendra
Singh. The dispute between the two sons of Late
Krishna Kumari is with regard to the harvesting of
riped paddy crops from the field of mother, late
Krishna Kumari bearing Plot No.950. The paddy is
sown by Brijendra Singh in the field of mother.
Action under Section 107/116 and 116(3) has been
against two rival brothers. Looking into the
apprehension of breach of peace in future, he
recommended action under Section 145/146
Cr.P.C. also." (Translated from Hindi version)

9. The Sub Divisional Magistrate sitting in
judicial side to take decision for action under
11 All. Virendra Singh Vs. Session Judge, Barabanki & Ors.
755
Section 145 Cr.P.C. has to apply it's mind and to
see preliminarily as to which one of the two
contesting parties was in actual and factual
possession of the subject of dispute prior to the
dispute/eviction.

10. Even the report of the local police
itself shown the crops in dispute of harvesting
were sown by the opposite party no.6 in the
field of mother Late Krishna Kumari bearing
plot no.950 in dispute. It is also shown in the
said report that mother Late Krishna Kumari
used to reside with her son Brijendra Singh. So
far as apprehension of breach of peace is
concerned, the report has also shown that
parties to the dispute had been already bound
down under Section 107/116 and Section 116
(3) for keeping peace. As such there was no
occasion to pass order under Section 145(1)
with regard to plot No.950, especially when the
civil suit titled by the petitioner for the relief of
cancellation of will and permanent prohibitory
injunctions was pending for decision. Likewise,
there was no occasion to pass order under
Section 146(1) Cr.P.C.

11. Possession of the field (Araji
Kashtkari) is implicit in the present matter by
mutation in Khatauni and in the record of
possession the Khasra in place of earlier
recorded tenure holder not by natural succession
but otherwise by a legal means of transfer by
way of the will.

12. Possession of a field (Araji Kashtkari)
is also factual and actual by means of peacefully
sowing it. Harvesting is later and consequent
part of sowing the paddies in the disputed plot
no.950 by opposite party no.6 Brijendra Singh,
as reported by the local police. If one applies
mind over the above said facts which are
admitted state of things, there would have no
doubt as to the fact who was in actual possession
of Arazi No.950 and the subject of dispute at
that time of harvesting of crops.

13. The pendency of original suit
no.1032/21 in the civil court also does not
change the status of possession holder over the
land, plot no.950 bequeathed by the recorded
tenure holder in favour of her grandsons
opposite parties no.2 to 5 and their father,
Brijendra Singh (opposite parties no.2). The will
was executed and registered far back on
4.7.1973 by the testator Smt. Krishna Kumari
who was jointly living with the family of his son
Brijendra Singh. The opposite parties no.2 to 6.
The will for the purpose of title only has come
into effect after the death of testator on
14.8.2020, otherwise factual possession of the
plot no.950 of Late Krishna Kumari since her
life time by reason of her residing jointly with
them. It would be relevant to keep into mind the
nature of posthumous transfer by will.

14. Will is a document spells out who
should get one's assets after his/her death. It
comes into effect and operation after it's maker
posthumously and excludes all other natural
heirs except the beneficiary under the testament.
A will made by a Hindu, Buddhist, Sikh or Jain
is governed by the provisions of Indian
Succession Act, 1925. It's Section 2 (h) runs as
under:-

"Section 2(h) "Will" means the legal
declaration of the intention of a testator with
respect to his property which he desires to be
carried into effect after his death."

15. A will is, thus a legal declaration of the
intention of a person with respect to his
property, which he deserves to take effect after
his death. Will has been defined as corpus juris
secundum A "Will" is the legal declaration of a
person's intention, which he wills to be
performed after his death, or an instrument by
which a person makes a disposition of his
property to take effect after his death. A signed
and duly witnessed will whether registered or
unregistered will have effect and legal force for
756 INDIAN LAW REPORTS ALLAHABAD SERIES
implementation of testator's intention after
death. There is strong presumption in favour of
genuineness of the will. If a party blames the
will to be in-genuine by any reason viz. Fraud,
forgery,
coercion,
incapacity
or
lack
of
competence or otherwise the initial burden of
proof of such disqualification and suspicious
circumstance lies on that person in accordance
with Section 101 of the Evidence Act, which
runs as under.

16. Section 101 of the Indian Evidence
Act, 1872 runs as under:-

"101. Burden of proof.--Whoever desires
any Court to give judgment as to any legal right
or liability dependent on the existence of facts
which he asserts, must prove that those facts
exist. When a person is bound to prove the
existence of any fact, it is said that the burden of
proof lies on that person."

17. Unless will is declared by a competent
civil court to be null and void by any reason of
suspicion as to it's genuineness, it passes of title
and rightful possession to the beneficiary over
the property bequeathed to him. The ''Civil
Court' is the competent court to decide such
issues.

18. Summing up the decisions on the two
issues carved down hereinabove, the opposite
parties no.2 to 5 were in rightful possession of
the property plot no.950 aforesaid and there was
no occasion for the Sub Divisional Magistrate
either for passing preliminary order under
Section 145(1) Cr.P.C. or subsequent order
under Section 146(1) Cr.P.C.

19. This Court earlier in Sharvan Kumar
Kaushal Vs. Sub Divisional Magistrate, Tehsil
Utraula, Balrampur & Ors. (Misc. Single Writ
No.24785 of 2021 decided on October 27,
2021) 2021 SCC Online All 782 has held as
under:-

"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."

20. The Executive Magistrate cannot
exercise the power conferred under Section 145
and 146 Cr.P.C. so as to put a clog upon the
righteous use and enjoyment of an immovable
property of which the holder is in peaceful and
settled possession, unless a competent court of
civil jurisdiction has ordered adversely to his
right, title and possession and/or there is an
emergent position of dispute between the rival
claimants with regard to land's title and
possession causing serious breach of peace.
11 All. Jang Bahadur Singh Vs. State of U.P. & Ors.
757

21. In the present case where the respondents
were in settled possession since the life time of the
recorded tenure holder and by virtue of her will
they continued with their possession over the land,
having been duly mutated after the death of
recorded tenure holder as testamentary successors.
Thus use and enjoyment of the property possessed
by them could not be disturbed in exercise of
power under Section 145/146 of Criminal
Procedure Code, 1973 by the S.D.M.

22. On the discussions made hereinabove,
the judgment delivered by learned Sessions Judge
in Criminal Revision No.54/2020, (Brijendra
Singh Vs. Virendra Singh) does not suffer with
error of law and the petition under Article 227 is
devoid of legal grounds attracting interference of
the Court in the revisional judgment, therefore, the
petition deserves to be dismissed.

23. With the aforesaid observations, the writ
petition is dismissed.
----------
(2021)12ILR A757
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.12.2021

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.
THE HON'BLE SHAMIM AHMED, J.

Misc. Bench No. 29669 of 2021

Jang Bahadur Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Nirmal Singh Yadav, Adarsh Srivastava, Divya Yadav

Counsel for the Respondents:
C.S.C., Anurag Kumar Singh

A. Practice & Procedure - Locus Standi - Indian
Constitution, 1950: Article 226 - The Court held
that since petitioner is a complainant and no legal
right have been infringed therefore, he has no right to
invoke extraordinary jurisdiction of the Court under
Article 226 of the Constitution. (Para 8)

Writ Petition Rejected. (E-10)

List of Cases cited:

1. Jasbhai Motibhai Desai Vs Roshan Kumar, Haji
Bashir Ahmed (1976) 1 SCC 671

2. Ayaaubkhan Noorkhan Pathan Vs St. of Mah.
(2013) 4 SCC 465

3. Ravi Yashwant Bhoir Vs Collector (2012) 4 SCC 407
(Delivered by Hon'ble Rakesh Srivastava, J.
&
Hon'ble Shamim Ahmed, J.)

1. Heard Sri Nirmal Singh Yadav, learned
counsel for the petitioner.

2. This writ petition has been filed praying
inter alia the following relief:-

i) issue a writ, order or direction in the
nature of mandamus commanding the opposite
parties to consider the representation of the
petitioner and lodge the criminal case against the
opposite party no. 5-Pradhan after investigate
the matter and seize the powers of the opposite
party no. 5 on the basis of submitting false and
forged paper and concealment of fact by him in
election process.

3. Kishan Pal, respondent no. 5 herein, is
the Pradhan of Village Bachgawan, P.O.
Bankagaon, Block and P.S. Pasgaon, Tehsil
Mohamdi, District Lakhimpur Kheri. The
petitioner, it is alleged, is simple, gentle and law
abiding person and voter of the said Gram
Panchayat. On 20.10.2021 the petitioner lodged
a
complaint
before
the
State
Election
Commission, UP, Lucknow to the effect that the
respondent no. 5 is not the resident of the village
and as such his election to the post of Gram