Abdul Ghaffar v. State — 1965 DIGILAW 490 (ALL)

ORDER Gyanendra Kumar, J. - This is a revision arising out of proceedings u/s 145 Code of Criminal Procedure on the following admitted or proved facts and circumstances: One Niaz Ali was the owner and sir holder of the five plots in question situate in village Bhawanpur. On 17. 4. 1953 he executed a registered waqf deed in respect of those plots measuring 7 bighas odd and certain other property and appointed himself a3 the first Mutwalli. The waqf deed further provided that after the waqif's death, his wife Smt. Hameedan would be the next Mutwalli and that after -her death the mutwalliship of the Waqf would devolve upon the person who Would at that time be the Mutwalli of the mosque known as Masjid Pachpeda. On 23.2.1954 Munshi and Ausaf Ali, nephews of the said Niaz Ali, filed suit No. 147 of 1954 against Smt. Hamtedan (widow of Niaz Ali), Abdul Ghaffar, first party No. 1 and another for cancellation of the waqf deed but it was dismissed by the Munsif by his judgment and decree dated 28.8. 1959. This decree was upheld right-tip to the High Court in second appeal. On Niaz Ali's death some time towards the end of 1953, the property devolved upon his widow Smt. Hame-Man as the next Mutwalli. Daring the pendency of the aforesaid suit Smt. Hameedan executed a Mukhtar-nama-aam (general power of attorney) in favour of Abdul Gh iffar (first party) on 22.5.1954, inter alia, for culfivating the plots in question and harvesting their crops as also for irrigating them. Smt. Hameedan died on 1.9.1964 and in terms of the waqf nama, on her death, Aas Mohammad (second party) became the next Mutwalli, inasmuch as at that time he was holding the office of the Mutwalli of Masjid Pachp-edit It may also be mentioned that Abdul Sattar (first party No. 2) is the own brother of Abdul Ghaffar (first party No. 1). Soon after the death of bmt. Hameedan, there arose serious differences between Abdul Ghaffar and his brother Abdul Sattar on the one hand and - Aas Mohammad Mutwalli on the other. The result was that on 16.10.1964, the first party moved an appticatida before the Superintendent of Police, Meerut, alleging that they had been in cultivatory possession of the disputed plots since about 15 years and that Aas Mohammad was near trying to dispossess them. On 23.10. The result was that on 16.10.1964, the first party moved an appticatida before the Superintendent of Police, Meerut, alleging that they had been in cultivatory possession of the disputed plots since about 15 years and that Aas Mohammad was near trying to dispossess them. On 23.10. 1964 the police reported that these was imminent danger of the breach of peace and recommended immediate attachment of the disputed plots, Accordingly the S.D.M., Meerut, pass ed a preliminary order on 24.10.1964 inconsequence whereof the plots were attached on 29.10.1964. Both the parties filed their respective written statements. In support of their case the first party filed affidavits of five persons (including Abdul Ghaffar) (sic) say that the disputed plots had been in their tenancy for the last 15 or 16 years. Inter alia, the first party a(sic) filed copies of the order of the Tahsildar dated 1.7.1957 directing (sic) name of the first party to be reoorded I in column No. 9 of the Khasra; extra(sic) of khasras for the years 1365 F, 136 (sic) 1368F, 1369F, 1371F and 1372F, wherein the names of the first party are noted in the remarks column; extracts of Khatauni for the years 1368F, 1369 and 1372F, in which their names are recorded under Zimin 9; rent recei(sic) for the years 1358F and 1359F alleged to have been issued by Niaz Ali and 13 other receipts of Abpasbi in which the names of the first party are noted as depositors of the canal dues. The case of Aas Mohammad second party, was that during lifetime Niaz Ali was cultivating the plots as his Sir and after his desta his widow Smt. Hameedan, as Mutwalli of the waqf, was getting the same cultivated on Batai by her mukhtar aam, Abdul Ghaffar (first party) and that a few weeks before her death on 1.9.1964, she had called the second party as well as Abdul Ghaffar (first party) on 10. 8.1964 and through him got the possession of the property delivered to the second party. The second party, also filed affidavits of 9 persons as well as a copy of the extract of khatauni for the year 1372 P. in which in the column of tenant in chief the name of the waqf is recorded. He also filed a copy of the statement of Abdul Ghaffar first party recorded on 11. 8. 1959 in suit on. He also filed a copy of the statement of Abdul Ghaffar first party recorded on 11. 8. 1959 in suit on. 147 of 1954 (Munshi and Anr. v. Smt. Hameedan and others) in which Abdul Ghaffar had admitted in his examination in chief that he Was related as nephew to Niaz Ali and Smt. Hame edan, that since the death of Niaz Ali, his widow Smt. Ha meed an had been in possession of the land, that in his life time Niaz Ali had let out to him about 23 or 24 kham bighas of land by means of lease deed; that as long as Niaz Ali remained alive, he alone was in possession of the property and no body else came into its possession; that Munshi and others had surrepti tidusly got their names entered over the disputed land by paying a bribe of Rs. 500/ to the Patwari and that he was the Mukhtaream of Smt. Hame-edan. In his cross-examination, however, Abdul Ghaffar stated that he was cultivating the plots in dispute from about 2 or 3 years before the execution of the waqf deed but no written lease was executed in respect thereof and that Niaz Ali was getting the plots cultivated till the time of his death. He further admitted that Smt. Hameedan had her own bullocks and that five plots of village Bhawanpur were being cultivated by him on Batai, as a consequence whereof he was taking half of the produce and was giving the other half to Smt. Hameedan. On a consideration of the affidavits and documentary evidence produced by the parties, the S.D.M. by his order dated 30.11.1964 held the second party (Aas Mohammad) to be in possession over the disputed plots and released the same in his favour. The first party went up in revision, but the Additional District Magistrate, Meerut, by his order dated 3.7. 1965 upheld the judgment and order of the S.D.M.; hence this revision by the first party. 2. The learned Counsel for the parties have argued this case at great length. Mr. C.S. Saran appearing for the first party has urged that even according to the evidence of the second party it was the first party (Abdul Ghaffar and. Abiul. Sattar) who was, in actual cultivatory possession of the plots, even though that cultivation may be as Mukhtaream of Smt. Hameedan, on half Batai system. Mr. C.S. Saran appearing for the first party has urged that even according to the evidence of the second party it was the first party (Abdul Ghaffar and. Abiul. Sattar) who was, in actual cultivatory possession of the plots, even though that cultivation may be as Mukhtaream of Smt. Hameedan, on half Batai system. His contention is that for the purposes of Section 145 Code of Criminal Procedure the only possession with. Which the courts are concerned is the actual physical possession of a party on the date of the preliminary order or within two months next thereof. In other words, even if the possession of a party is with the permission of the other party, such permissive possession would entitle the possessor to retain the same for the purposes of Section 145 Code of Criminal Procedure i.e. the man who has his feet on the land or plots in question would be entitled to protection u/s 145 Code of Criminal Procedure. In support of his contention Mr. Saran has relied upon the case of Thakur Jaikrit Singh and Ors. v. Sohan Raj (1) (AIR 1952 Raj. 63). 3. In the above case it was laid down that although as against third parties the possession of the servant or agent would be deemed to be that of the master or the principal, but where there is a dispute between the master or the principal on the one hand and the servant or agent on the other about the possession of the property, then the word 'possession' will have to be interpreted in the sense of actual physical possession, inasmuch as Section 145 of the Code of Criminal Procedure deals with disputes only about actual physical possession; and as such, the provisions thereof can be invoked in a dispute between a master and a servant or principal and agent themselves in respect of possession of any immovable property. Therefore, if the master or the principal is in constructive possession through his servant or agent & the latter claims possession in himself, it would be the possession of the servant or the agent, which would be maintained in proceedings u/s 145 Code of Criminal Procedure. I am in respectful agreement with this proposition of law. Therefore, if the master or the principal is in constructive possession through his servant or agent & the latter claims possession in himself, it would be the possession of the servant or the agent, which would be maintained in proceedings u/s 145 Code of Criminal Procedure. I am in respectful agreement with this proposition of law. In the instant case, let us therefore see whether Abdul Ghaffar who was the Mukhtare am of Smt. Hameedan, and his brother Abdul Sattar were in actual physical possession of the disputed plots on 24.4.64, when preliminary order was passed or within two months next there-of. In this connection, it may be noted that apart from filing a joint application and joint written statement along with his brother Abdul Ghaffar, Abdul Sattar did not even file his affidavit to show that he was in actual physical possession of the disputed plots. According to the affidavits of Abdul Ghaffar and four other persons, who supported because, the possession of the first party was by means of plot ughing and sowing the land as well as by paying its rental. 4. Regarding the payment of rent by Abdul Ghaffar and Abdul Sattar, the first party has filed two rent receipts alleged to have been signed by Niaz Ali. In the first place, none of these receipts shows the plot numbers or area of the holding for which the rent was paid. There is notching to show in the receipts themselves that-they related to the disputed plots. According to Abdul Ghaffar's affidavit, both these receipts were written by one Pir Ji Bundu, who was a national of Pakistan. The said Pir Ji Bundu has not been produced to prove that the receipts were really executed at the instance of Niaz Ali, Secondly, both the receipts have been issued from the same receipt Book No. 7007. The serial number of the receipt for 1358 Fasli dated 13.8.1951 is 31, while that of the other receipt, dated 18.9.1952 for the year 1359 Fasli is 30. It is surprising that though the gap between the issue of the two receipts is more than one year, yet they were issued from the same receipt book and their serial numbers are immediately one after the Other. It is surprising that though the gap between the issue of the two receipts is more than one year, yet they were issued from the same receipt book and their serial numbers are immediately one after the Other. Thirdly, it has not at all been explained as to how the serial number of the earlier receipt dated 13.8.51 is 31, while that of the latter receipt issued after more than one year is 30. It is thus abundantly clear that these receipts have been manufactured for the purposes of the case and have no evidentiary value. 5. So far as the memos, and receipts for the payment of irrigation dues are concerned, they only show the name of the person who actually made jthe payment. Admittedly Abdul Ghaffar was the Mukhtar-e-am of Smt. Hameedan and in that capacity it would not be surprising that he or even his brother Abdul Sattar had been depositing the irrigation dues from: time to time on her behalf. The memos and receipts do not necessarily show that the depositors were really the ienants of the plots mentioned therein. 6. As far as the revenue entries a favour of Abdul Ghaffar and Abdul "attar are concerned, the last entries iic in Khasra and Khatauni for the ear 1372 Fasli. Their names arc ntered in the remarks column of the Lhasra and in zeman 9 in the Kha tauni. The entries would, therefor, relate to the period when the dispute between the parties had already com menced on 16.10.1964. Thus rouse importance cannot be attached to; these revenue entries, particularly when they were made before the year 1372 Fasli had run but. 7. In his statement recorded on 11.8.1959 in Civil Suit No. 147 of 1954 (Munshi and Anr. v. Smt. Hameedan,; Abdul Ghaffar and another) Abdul Ghaffar had admitted that Smt. Hameedan had been in possession of the land and prior thereto her husband Niaz Ali was cultivating the same and that no body else came into its possession, In his cross examination, however, Abdul Ghaffar stated that he was cultivating the plots in dispute from the time of Niaz Ali. These two statements are wholly inconsistent. If Niaz Ali was really cultivating the plots, till his death, there was no question of the first party cultivating the same during the life time of Niaz Ali. 8. These two statements are wholly inconsistent. If Niaz Ali was really cultivating the plots, till his death, there was no question of the first party cultivating the same during the life time of Niaz Ali. 8. Regarding the period after the death of Niaz Ali, Abdul Ghaffar halo again admitted that it was Smt. Hameedan who was in possession of the disputed plots and no body else, but he was cultivating them on batai system, as a consequence whereof he was taking half the produce and was giving the other half to Smt. Hameedan, Therefore, even if Abdul Ghaffar may be deemed to be in actual physical possession of the plots till the harvesting of the batai crop, his possession would come to an end as soon as the batai crop is reaped and harvested, The real tenant of the Sir plots being Smt. Hameedan in her capacity as Mutwalli, the possession of the holdings after the removal of the crops would be deemed to be that of Smt. Hameedan or the waqf, inasmuch as in the case of vacant, land, possession follows title. 9. It is also significant that according to Abdul Ghaffar's own admission, Niaz Ali had executed Pattas in respect of other holding's let out to him (Abdul Ghaftar). There is no reason why Niaz Ali would not have got written leases executed by the first, party in respect of the disputed plots, in case they were really let out to, it as long ago as 14 or 15 years (i.e. in 1356-57F.) but the revenue entries start 7 years later from 1363F. 10. Agricultural holdings are usually possessed either by plugging, sowing and irrigating the fields or by raising crops thereon. It is the admitted ease of the parties that during the period in question, that is, from 24.8.64 to 24.10.64, there were, no crops on these plots. The affidavits filed on behalf of the first party do not show that Abdul Ghaffar or Abdul Sattar had either ploughed, sown, irrigated or raised crops in the fields during the above period. Thus the first party could not have had actual physical possession over the plots in question during the relevant period. The affidavits filed on behalf of the first party do not show that Abdul Ghaffar or Abdul Sattar had either ploughed, sown, irrigated or raised crops in the fields during the above period. Thus the first party could not have had actual physical possession over the plots in question during the relevant period. The argument that inasmuch as the first party had been cultivating the plots for a number of years and had been recorded as such, so it should be deemed to be in possession of the disputed holdings has no substance. In his aforesaid statement dated 11.8.1959 recorded in Civil Suit No. 147 of 1954 (Munshi and Anr. v. Smt. Hameedan and others Abdul Ghaffar had stated that Munshi and others, Plaintiffs to that suit, had surreptitiously got their names entered over the disputed land by paying a bribe of Rs. 500/- to the Patwari. It may be iterated here that the revenue entries in that suit were found to be fictitious by the Civil Courts, with the result that that suit was dismissed, which decree was maintained right up to the High Court. It may very well be that the revenue entries in favour of Abdul Ghaffar and Abdul Sattar were also brought about in some such manner. Hence they cannot be relied upon in the face of the Own admission of Abdul Ghaffar and other surrounding Circumstances. The courts below were, therefore, not wrong, when they held that the first party was not in possession of the disputed plots at all material times. 11. Eight affidavits filed on behalf of the second party, Aas Mohammad, show that a few weeks before her death on 1.9.1964, Smt. Hameedan had called Aas Mohd. as well as Abdul Ghaffar on 10.8.64 and had stated that as on her death Aas Mohd. would become the mutwalli it was her desire that he should (sic)in possession over the disputed plots within her life time. Thereupon Abdul Ghaffar gave the details of the disputed plots and handed over possession thereof to Aas Mohammad on that very day. as well as Abdul Ghaffar on 10.8.64 and had stated that as on her death Aas Mohd. would become the mutwalli it was her desire that he should (sic)in possession over the disputed plots within her life time. Thereupon Abdul Ghaffar gave the details of the disputed plots and handed over possession thereof to Aas Mohammad on that very day. Even if Abdul Ghaffar had laid any improper claim to the tenancy of the plots in question, it was not improbable for him to have agreed to deliver the plots to Aas Mohammad on 10.8.64 out of deference for the last wishes of his aunt Smt. Hameedan, partictilarly when he knew very well that the plots were waqf property. The affidavits filed on behall of second patty further show that the very next day, i.e. on 11.8.64, Aas Mohammad had ploughed and prepared the soil for sowing and had thus came in actual physical possession of the disputed plots at least on and from 11.8.64. The area of the disputed plots was only about 7 bighas odd. It was, therefore, not impossible for Aas Mohammad to have ploughed and prepared them in one day's time, particularly when Smt. Hameedan also possessed her own bullocks, as admitted by Abdul Ghaffar in his statement dated 11.8.59, which must have been utilized for the purpose. As noted above, Aas Mohammad is said to have ploughed and prepared the land on 11.8. 64, by which time it must have become soft after a few showers of rain. It is at about that time that fields are usually put to plough. These circuitry stances, therefore, are also indicative that Aas Mohd. must have ploughed and prepared the fields on 11.8.1964, thereby coming into actual physical possession of the land. It was, therefore, the second party Aas Mohd., who was in possession of the disputed plots on the date of the preliminary order as also during two months prior thereto. The two courts below have given concurrent finding of fact about Aas Mohammad's possession over the plots in dispute atone relevant time, and I see no reason to differ on this finding of fact. 12. In the result I find that the revision has no force and is according by dismissed, the order of the Magistrate dated 30.11.64 being maintained.