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1969 DIGILAW 61 (ALL)

Abdul Jabbar Khan v. Farzand Ali Khan

1969-02-14

D.D.SETH

body1969
JUDGMENT D.D. Seth, J. - This reference has been made to this Court by the learned Civil and Sessions Judge, Saharanpur. The facts of the case are that the applicant, Abdul Jabbar Khan, filed an application before the learned Sub-Divisional Magistrate, Nakur, district Saharanpur, stating that he was the owner of the plot in dispute which contained a mango tree and that the opposite parties, Farzand Ali and others, had no concern either with the plot or with the mango tree but were taking advantage of the old age of the applicant and had damaged the fruit crop of the mango tree, on July 19, 1964, and when the applicant protested they threatened and abused him and, Farzand Ali, opposite party 1, actually beat him with lathise. The learned Sub-Divisional Magistrate, on receiving Abdul Jabbar Khan's application, ordered proceedings to be initiated against the opposite parties under Section 1071117, Cr.P.C., but later on converted those proceedings under Section 145, Cr.P.C. and called upon the parties to file their written statements and affidavits in support of their respective cases and such other evidence as they liked to produce. Accordingly, the parties filed written statements and affidavits but the learned Magistrate was unable to decide as to which party was in possession of the plot in dispute and, therefore, he referred the matter to the learned Munsif Hawali under Section 146, Cr.P.C. to decide the question as to which party was in possession of the plot in dispute on the date of the preliminary order or within two months of the same. The learned Munsif heard the case on January 17, 1967 on which date none of the parties appeared and the learned Munsif on that date passed the following order: "Application dated July 20, 1964 moved by the applicant Sri Abdul Jabbar Khan is rejected for default. The property in question is to be read leased in favour of O.Ps." The learned Munsif sent his finding to the learned Sub-Divisional Magistrate, who, by his order dated January 24, 1966, ordered the property to be released in favour of opposite parties. Aggrieved by the order of the learned Magistrate dated January 24, 1966 the applicant, Abdul Jabbar Khan, preferred a revision out of which this reference has arisen. 2. Notice of this reference has been served on all the parties but they are not represented. 3. Aggrieved by the order of the learned Magistrate dated January 24, 1966 the applicant, Abdul Jabbar Khan, preferred a revision out of which this reference has arisen. 2. Notice of this reference has been served on all the parties but they are not represented. 3. Section 146 of the Cr.P.C. reads as follows: "(1) If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he may attach it, and draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in sub-section (4) of Section 145; and he shall direct the parties to appear before the Civil Court on a date to be fixed by him. Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time, if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute. (1-A) On receipt of any such reference, the Civil Court shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider the effect of all such evidence, and after hearing the parties, decide the question of possession so referred to it. (1-B) The Civil Court shall, as far as may be practicable, within a period of three months from the date of the appearance of the parties before it, conclude the inquiry and transmit its finding together with the record of the proceeding to the Magistrate by whom the reference was made; and the Magistrate shall, on receipt thereof, proceed to dispose of the proceeding under Section 145 in conformity with the decision of the Civil Court. (1-C) The costs, if any, consequent on a reference for the decision of the Civil Court, shall be costs in the proceedings under this section. (1-D) No appeal shall lie from any finding of the Civil Court given on a reference under this section nor shall any review or revision of any such finding be allowed. (1-C) The costs, if any, consequent on a reference for the decision of the Civil Court, shall be costs in the proceedings under this section. (1-D) No appeal shall lie from any finding of the Civil Court given on a reference under this section nor shall any review or revision of any such finding be allowed. (1-E) An order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction. , (2) When the Magistrate attaches the subject of dispute, he may, if he thinks fit and if no receiver of the property, the subject of dispute, has been appointed by any Civil Court, appoint a receiver thereof, who, subject to the control of the Magistrate, shall have all the powers of a receiver appointed under the C.P.C.: Provided that, in the event of a receiver of the property, the subject of dispute, being subsequently appointed by any Civil Court, possession shall be made over to him by the receiver appointed by the Magistrate, who shall thereupon be discharged." 4. According to the provisions of Section 146 the Civil Court, when the matter is referred to it, has to peruse the evidence on record and to take such further evidence as may be produced by the parties and to consider the effect of all such evidence and after hearing the parties to decide the question of possession referred to it. After concluding the inquiry the civil court has to send back its findings together with the record of the proceeding to the Magistrate and the Magistrate has to proceed to dispose of the matter under Section 145 in conformity with the decision of the civil court. 5. In the instant case the learned Munsif, as is clear from his order quoted above, did not record the finding as to which party was in possession of the plot in dispute on the relevant date or within two months prior to it but merely rejected the application of Abdul Jabbar Khan because he was absent and passed an order releasing the property in favour of the opposite party. Such an order could not be passed by him. Such an order could not be passed by him. Even if the parties were absent when the matter was heard by the learned Munsif he had the written statements of the parties and the affidavits filed on their behalf before him and it was his duty to go through the affidavits and the written statements and then to record a finding as to which party was in possession on the relevant date. He could not reject the application and order the release of the property in favour of the opposite party. The procedure adopted by the learned Munsif was clearly illegal and without jurisdiction. It follows therefore, that the learned Magistrate also acted illegally in complying with the directions given by the learned Munsif. It was the duty of the learned Magistrate to refer back the case to the learned Munsif for giving a finding as to which party was in possession on the relevant date when the Munsif had not re corded any finding on that point. he learned Munsif had sufficient evident on record to record such a finding. 6. After going through the order passed by the courts below and for the reasons mentioned above I accept the reference, set aside the order of the learned Sub-Divisional Magistrate, Nakur, dated January 24, 1966, ordering release of the property in favour of the opposite party, and send back the case to the learned Sub-Divisional Magistrate for re-deciding the matter in accordance with law.