Kurdi vs State of Uttaranchal/Uttarakhand, Addl. Session Judge/IIIrd F.T.C., Sub-Divisional Magistrate and Bhartu @ Bharat Singh

Prafulla C. Pant, J.—Heard.

By means of this petition moved u/s 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C) the petitioner has sought quashing of the order dated 27.01.2005, passed by Additional Session Judge/III Fast Track Court, Haridwar in Criminal Revision No. 339 of 2004 Kurdi v. Bhartu and Ors., whereby said court has affirmed the order dated 30.09.2004 passed by Sub-Divisional Magistrate, Laksar, in case No. 01 of 1994 (new No. 9 of 1999) u/s 145 of Cr.P.C.

Brief facts of the case are that one Faggan son of Guriya was Bhoomidhar of Khasra No. 88M measuring 5-11-0 and Khasra No. 88M measuring 1-18-5 situated in Village Mubarikpur, Tehsil Laksar. Admittedly, Kurdi son of said Faggan, after death of Faggan claimed mutation in his name before the revenue authorities on the basis of a Will. Respondent No. 4 Bhartu @ Bharat Singh also claimed himself to be son of Faggan and he too claimed mutation in his favour. The case of the present petitioner is that Tehsildar vide his order dated 14.05.2002, passed in case No. 942 of 1994 directed that name of Kurdi (petitioner) be recorded in the revenue record. It is further pleaded by him that an appeal was filed by Bhartu (respondent No. 4) (appeal No. 9 of 2002) u/s 210 of Land Revenue Act, before the S.D.M/Assistant Collector, Roorkee, which was dismissed on 23.12.2003. The present petitioner has alleged that Bhartu (respendent No. 4) was son from the Ex-husband of wife of Faggan and as such he was half blood son of Faggan. The courts below have taken note of the fact that the orders passed by Tehsildar and Assistant Collector are under challenge before the Commissioner and as such cannot be said to have attained finality. On its basis and on the report of the police the impugned order appears to have been passed by the courts below in favour of Bhartu (respondent No. 4).

Shri Rajendra Singh, learned Counsel for the petitioner submitted that the petitioner is admittedly recorded tenure holder of the land in question and from the police report dated 14.12.2004 (copy Annexure-7 to the petition) it is disclosed that the crop was sown and harvested by the petitioner. Apart from this, attention of this Court is drawn to the Annexure- SA1 to the supplementary affidavit filed with this petition which is copy of plaint of suit No. 321 of 2004, filed by the petitioner against respondent No. 4 and his son. Perusal of Annexure-SA2 to the supplementary affidavit which is copy of order dated 09.05.2005, passed by Civil Judge (Jr. Div.) shows that the civil court has passed an interim order in favour of the petitioner. In the circumstances, the impugned order passed by Sub-Divisional Magistrate, Laksar and revisional court u/s 145(6) of Cr.P.C., are liable to be quashed, in view of the fact that not only the petitioner is recorded tenure holder, and the police report also shows possession in his favour but the civil court too has passed an interim order in favour of the petitioner.

Accordingly, the petition u/s 482 of Cr.P.C., is allowed. The impugned order dated 27.01.2005 passed by Additional Sessions Judge/III Fast Track Court, Haridwar, in criminal revision No. 339 of 2004, and order dated 30.09.2004, passed by Sub-Divisional Magistrate, Laksar, in case No. 01 of 1994 (new No. 9 of 1999) are hereby quashed.