Kunti Devi and Others vs State of U.P.and Others

G.S.N. Tripathi and R.K. Singh, J J.

In this criminal writ, the following reliefs have been prayed for:

(1) to issue a writ, order or direction in the nature of ceniorori, calling for the record of the case, quashing the proceedings of case crime No. 740 of 1997, under Section 395, IPC, P.S. Kotwali, Distt. Mainpuri arising out of First Information Report of respondent No. 4, dated 1581997 (Annexure No. 11).

(2) to issue a writ, order or direction in the nature of mandamus, commanding the respondents, not to enforce the proceedings of case crime No. 740 of 1997 under Section 395, IPC, P.S. Kotwali, Distt. Mainpuri against the petitioners on any ground and in any manner whatsoever.

(3) to issue a writ, order or direction in the nature of mandamus, staying further proceedings of case crime No. 740 of 1997, under Section 395, IPC, P.S. Kotwali, district Mainpuri, including arrest of the petitioners.

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

(5) to award costs of the petition to the petitioners.

Sri Deependra Kr. Jain, respondent No. 4 filed an F.I.R. Annexure 11, dated 7997 at 13.15 p.m. at P.S. Kotwali, Distt. Mainpuri, in which he was impleaded the petitioners No. 1 to 3 as accused. It is alleged that plot No. 2093 (area 0.45 Dec.) Plot No. 2094 (area 0.45 Dec.) plot No. 2095 (area 0.25 Dec.) and plot No. 2096 (area 42 Dec.) situate in village Mainpuri, Karhan Road, near Etawan Bus stand belong to the complainant Deependra Kr. Jain. Petitioner No. 1 Smt. Kunti Devi is an influential lady. Sri Rajendra Mohan Dohri, petitioner No. 2 and Sri Om Prakash Dubey, Advocates, petitioner No. 3 are very close to and under the influence of Smt. Kunti Devi, petitioner No. 1. They have formed a Mafia gang consisting of several other goondas. On the basis of brute force, they threatened several persons to dispossess them from their property and in the same vein, they had threatened respondent No. 1 also that they would demolish the shops belonging to him and remove the debris.

3, In pursuance of this objective, on 15897 at about 11 p.m. when the complainant alongwith his son Sri Nitin Kumar Jain was returning from Etawah, they saw the three petitioners aforesaid alongwith 35 other persons sitting in a truck heavily armed. They were demolishing his shops. When the complainant asked them not to do so, they abused him and threatened them of dire consequences. His 2nd son Sri Vineet also arrived on the spot. The aforesaid culprits threatened him also and thus they demolished his two shops and removed the debris along with doors, windows etc. in the truck. They had threatened that they would annihilate the entire family of the complainant. These persons are notorious goondas of the locality. Regarding their activities on 11 797, the complainant had sent a registered complaint against them. But no action was taken against them. Now he has prayed that suitable action be taken against themand proper security be provided to the complainant and his family members.

On the basis of this written complaint, a F.I.R. was registered under Crime No. 740/97, under Section 395, IPC against the petitioners and criminal proceedings are going on. The petitioners have alleged that the properties mentioned in the complaint, belong to the petitioner No. 1 Smt. Kunti Devi. She is in possession .over the same. She was delivered possession in execution of the Hon''ble Supreme Court''s order dated 211196 and 28497 (Annexures I and II). The list of the properties delivered to her, are contained in Annexures III and IV.

Despite the fact that possession was delivered in execution of the Hon''ble Supreme Court''s order, the respondent No. 4, Dependra Jain continued harassing and victimising the petitioner. She made a complaint against this behaviour of the respondents No. 1 to 3 to the Station Officer of the P.S. Even the S.D.M., Mainpuri, vide his order dated 2697 passed the orders in her favour. On 266 97 and 21697 (Annexures VII and VIII) upholding the claim of Smt. Kunti Devi merely on the basis of the order of the Hon''ble Supreme Court. In pursuance of the Hon''ble Supreme Court''s order, the executing Court at Mainpuri had delivered the actual and physical possession over the property in dispute to Smt. Kunti Devi. Smt. Kunti Devi was out of station for some time. Taking advantage of her absence, respondent No. 4 moved the police authorities and local police did not provide any aid to Smt. Kunti Devi and a false F.I.R. was entertained allegedly, lodged by respondent No. 4 against the petitioners. The F.I.R, contains completely distorted falsehoods. In pursuance of the false F.I.R. lodged by respondent No. 4, respondents 2, 3 and 4 are taking hasty steps to disrepute the petitioners and nullify the effect of the order of the Hon''ble Supreme Court. The petitioners pray that no action be taken in pursuance of the said F. I.R. and the petitioners may not be arrested and the criminal proceedings on that basis, be totally quashed.

We have heard the learned Counsel for the petitioners only at the stage of admission itself, in detail and perused the record. We find that there is no force in this petition and it deserves to be dismissed.

Certain facts are not disputed in this case. Smt. Kunti Devi and others had obtained a decree from the Allahabad High Court against U.P. State Electricity Board. The dispute had its origin on 31248 when the State of U.P. granted a licence in favour of the licensee in the civil litigation of Mainpuri. The U.P. State Electricity Board stepped into the shoes of State of U.P. The licensee company, which was generating and distributing electric energy on the basis of the licence, granted by the State of U.P., at a point of time, suffered a money decree from Smt. Kunti Devi to the tune of Rs. 25,000. In execution of which the site put to the use for generating and supplying electric energy was auctioned by the Court Smt. Kunti Devi, the decreeholder herself purchased the entire site under the possession of the licensee in a sum of Rs. 25,000 only. The suit was filed by State of U.P. challenging the Court auction contending that the property stood vested in the State of U.P. Therefore, it could not be put to auction for the debts due from the licensee. The State of U.P. lost from all the Courts and approached in the Hon''ble Supreme Court through the U.P. State Electricity Board along with Civil Misc. Writ Petition No. 10847 of 1988. At the stage of the Hon''ble Supreme Court, parties entered into a compromise. Upon hearing the parties'', Hon''ble Supreme passed the following order:

�We are glad to record that the learned Counsel have understood the need of the hour and have arrived at a consensus to the effect that half of the property auctioned could be taken to have been validly auctioned for a sum representing the decretal amount. In that event, since the decree would stand satisfied by sale of half of the property, the remaining half need not be taken to have been sold or sold at all, for then it would be an excess sale. We think the consensus arrived at it just and proper. In these state of affairs, the objection of the appellant with respect to half of the property auction money over and above the decretal amount would be required to be refunded to the first respondent auctionpurchaser. Refund may have to be caused from the party who have taken away that part of the� auction money, but if it lies still in Court and stands invested then the return of the money to the auctionpurchaser shall also be added with the interest accused thereon. Likewise, the sum equivalent to the auctionmoney which the appellant has deposited in the trial Court as a preclude to object to the auction, that money would have to be refunded to the appellant and if invested, together with interest.

Let the Executing Court, Mainpuri, iron out the procedural creases on this aspect of the matter. Let that Court appoint a Commissioner to effect a partition of the auctioned property in an equitable mannerhalf and halfhaving due regard to the rights and needs of the parties towards'' frontage'', and put the respective parties in possession thereof. It is understood that the distribution system and the officer existing on the site shall, as far as practicable, be put in one share, and on doing so, the first choice of choosing the divided share shall rest with the appellant; the other share going to the respondent. Thus, on the division of the property and settlement of other rights and liabilities as aforesaid, the decree in favour of the first respondent shall stand satisfied. And, in this matter, we think that complete justice would be meted out to the parties. Let the needful be done within 3 months of the receipt of the order of this Court. No costs.�

The aforesaid judgment was passed in Civil Appeal No. 403 of 1977, U.P. State Electricity Board v. Smt. Kunti Devi and another with C.M.P. No. 18047/88 (Annexure 1 to the petition). Deependra Kr. Jain, Respondent No. 4 tried to intervene in the proceedings on 2497. The Hon''ble Supreme Court rejected his Intervention Application in these words:

�The site in dispute involved in Civil Appeal No. 403/77 stood acquired by the U.P. State Electricity Board. The said Board and Kunti Devi, one of the parties mutually came to an understanding and a consensus was arrived at, whereby, the property was appropriated by the respective two in half and half, subject to payments, as embodied in the order. The applicant, Dipendra Kumar Jain no where figured in that litigation. He has no locus to move the LA. It is, accordingly, dismissed.�

The aforesaid observation of the Hon''ble Supreme Court goes to show that the title and Objections raised by Sri Dipendra Kr. Jain, Respondent No. 4, were not considered by their Lordships mainly on the ground that �applicant Dipendra Kumar Jain no where figured in the litigation (Civil Appeal No. 402/77 (supra). He has no locus standi to move the LA (Intervention Application). It is, accordingly, dismissed�. It means that the objections and claims raised by Sri Dipendra Kumar Jain were not considered on merits by the Hon''ble Supreme Court mainly because he was not a party to the litigation. It would not be very fair on the part of the learned Counsel to say that the Hon''ble Supreme Court after hearing Dipendra Kumar Jam, rejected his application. It is difficult to swallow the argument of Sri B.B. Paul, learned Counsel for the petitioners.

In civil matters, only those parties are bound by the judgment of any Court, including the Hon''ble apex Court who are parties to the litigation and against whom provisions of Section 11, C.P.C. may be applicable. Admittedly, Dipendra Kumar Jam was not a party to the litigations nor his claim was ever examined by any other Court, including Hon''ble Supreme Court. Hence it was a decree ''jus inpersonum'' and does not operate as res judicata in any manner whatsoever against Dipendra Kumar Jain.

After the aforesaid order of the Hon''ble Supreme Court, the matter went in the executing court i.e. Civil Judge, Mainpuri, Sr. Division and possession was delivered on 12597 by the Court Amin (Annexure 3 to the petition). In the report/Dakhalnama dated 12597, the Amin has mentioned the following facts at page 2 of the order:

�In pursuance of the Court''s order in kura No. 2 towards the southwestcorners, there were two shops belonging to Dipendra Kr. Jain, respondent No. 4, upon which possession was delivered after breaking open the lock to Smt. Kundi Devi, petitioner No. 1. (Annexure 3 to the petition). That also contains a list of the belongings in both the shops.� Naturally owned by Sri D.K. Jain.

According to Sri Dipendra Kumar Jain, since he was in possession as an owner, all these things belonged to him. Dakhalnamas are on the record. Dipendra Kr. Jain never allowed the grass to grow under his feet. He continued his agitation regarding the ownership and possession of the property, which was taken by Smt. Kunti Devi against law by misrepresenting the executing court by arguing that under the orders of the Hon''ble Supreme Court, possession had been delivered to her. Therefore, Dipendra Kumar Jain also is bound by the same. But it was not a decree or order against Sri D.K. Jain as he was not a party to the suit, or compromise therein.

Smt. Kunti Devi got up nearly 29 days after 12597 i.e. on 10697 and made a complaint to the S.S.P. (Annexure 5), on that date. After alleging the facts upto the stage of Dakhalnama, she was alleged that she wanted to raise fresh constructions upon the kura, which had been granted to her by the Executing Court and, in that process, started digging the foundation on 29697. Then Sri Dipendra Kr. Jain along with several other persons appeared on the scene and asked the labourers of Smt. Kunti Devi to run away. It was specifically mentioned by her that although Sri Dipendra Kumar has lost his suit with regard to the disputed property right upto the Hon''ble SupremeCourt, therefore, they had no right and title with regard to the disputed property and they were illegally threatening her of dire consequences. The S.S.P. called for a report from the concerned P.S. on the same day i.e. 10697 (Annexure 5). The Station House Officer in his report dated 28697 (Annexure 4) has reported that a litigation between Smt. Kunti Devi and State of U.P. was contested by the parties. The State Govt. lost upto Alld. High Court. Thereafter, it filed a S.L.P. in the Hon''ble Supreme Court where it was decided that the disputed property should go to Smt. Kunti Devi. Therefore, in pursuance of the Hon''ble Supreme Court''s order dated 12597, possession was delivered by Court Amin to Smt. Kunti Devi. Even over two shops against which objections had been raised by Sri Dipendra Kr. Jain. This, it appears that the S.H.O. concerned was misled on this point that the Hon''ble Supreme Court had decided the case of title and possession of Sri Dipendra Kr. Jain also against her, i.e. visavis Sml. Kunti Devi, which is not a fact. (Annexure 6 to the petition).

Not only this, an application was moved before the S.D.M. Mainpuri on 20697, which was decided on 26697 by him (Annexure 7 to the petition). He has also been guided by the fact that the Hon''ble Supreme Court had decided the fate of Sri Dipendra Kr. Jain, respondent No. 4 and he obtained a stay order from his Court, which has been found to be wrong. Therefore, legal action should follow. He further elaborated his order (Annexure 8 to the petition) on the same day by observing at page 2 that in the said appeal, Hon''ble Supreme Court rejected the claim of Sri Dipendra Kr. Jain on 28697. Therefore, in pursuance of the orders of the Hon''ble Supreme Court, the Executing Court has rightly delivered possession to Smt. Kunti Devi. All these facts were not brought to the notice by Sri Dipendra Kr. Jain. Therefore, he had passed an exparte order in his favour, which he withdrew with immediate effect.

The Amin''s report (Annexure 9 to the petition) dated 1397 along with the map contains the Kuras prepared by him by dividing the property in two partsone in favour of the State represented by U.P. State Electricity Board and other to Smt. Kunti Devi.

Making similar allegations, Smt. Kunti Devi moved an application before the S.S.P. Mainpuri (Annexure 10 to the petition) and said that despite a suitable order in her favour granted by the Hon''ble Supreme Court, Sri Dipendra Kr. Jain and others were not respecting the same. This fact was reported by Sri Dipendra Kr. Jain on 14697 (Annexure 10 to the petition) alleging that Smt. Kunti Devi, with the aid of Mafia gangs was disturbing his possession on the basis of a false interpretation given to the order of Hon''ble Supreme Court. He also lodged a EI.R. noted above, on 17997, upon which criminal proceedings are pending, which have been sought to be quashed.

It is clear to us that in the original suit, Sri Dipendra Kr. Jain was not a party, therefore, his claim has not been decided by any Court, including Hon''ble Supreme Court. Thus his case has gone unheard so far. Merely, because his Intervention Application has been rejected by the Hon''ble Supreme Court, his claim has not been adjudicated visavis Smt. Kunti Devi. Therefore, all the Courts, including the Executing Court fell into an error by believing that Sri Dipendra Kr. Jain had lost upto Hon''ble Supreme Court and he had no right to reagitate the matter. With due respect to the authorities concerned, we find that this is a distortion of fact. In fact, so far, no order has been passed by any Court after adjudicating the claim of he petitioners, visavis Sri D.K. Jain respondent No. 4 in this petition. Hence any decree or order passed by any Court, including Hon''ble Supreme Court, does not bind Sri Dipendra Kr. Jain as he was not a party to any civil proceeding or suit.

In this perspective, we may again have a look at the socalled Dakhalnama very much relied upon by Smt. Kunti Devi, dated 12597 (Annexure 3 to the petition (supra). In it, there is a specific mention at page 2 in these words in Hindi, being translated into English:

�In kura No. 2 towards the southwest corners, two shops belonging to Sri Dipendra Kr. Jain were aim there, upon which, by breaking open the lock, possession was delivered.�

(Emphasis supplied)�

Petitioner No. 1 Smt. Kunti Devi has not been able to satisfy this Court so far as to on which authorise, she got the shops belonging to Sri Dipendra Kr. Jain demojished. She does not allege that there was any litigation between her and Sri Dipendra Kr. Jain with regard to these shops. It is equally legal that even the State of U.P. was not in a position to allege that it was the owner of the property i.e. these two shops nor it ever gave any licence to a private Electricity company or authority to the State Electricity Board to claim ownership over these two shops. Therefore, till the matter is to be adjudicated finally, hence we cannot throw away the case of Sri Dipendra Kr. Jain as being without force.

Admittedly, while delivering possession over these shops, the properties belonging to the owner of these two shops (Dipendra Kr. Jain), the Amin prepared an inventory (Annexure 3). So,pnma facie, it is apparent that unlawful possession was obtained by Smt. Kunti Devi not only over the two shops belonging to Sri Dipendra Kr. Jain but also over the property lying therein.

In this background, when we approach the EI.R. (Annexure 6 to the petition), lodged by Sri Dipendra Kr. Jain on 20697 making allegations against the petitioners of dacoity with the aid of Mafias, it cannot be said at this stage, that this F.I.R. .is totally bogus and false. It cannot be further said that after reading this F.I.R. a prima facie case of dacoity, is not made out and it locks like a cock and bull story, being product of a legal brain. Hence, the prayer for quashing this F.I.R., made in this petition, cannot be granted at all. It is for the trial Court to consider the merits of the case after hearing the parties and not for the High Court to go into the facts in detail.

18, This petition is dismissed having no force. It is made clear that any observations made by this Court while deciding this petition, shall remain confined to this petition itself and alone. It will not be binding upon any civil, criminal or revenue courts while deciding the title and possession matter with regard to the disputed property. Petition dismissed.