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2005 DIGILAW 465 (BOM)

Shahjadbegum Mohamad Ajhar v. Faridabano, Jafarullakha

2005-04-06

A.H.JOSHI

body2005
Judgment ( 1 ) THE applicant herein who was Party No. 2 before the Sub-Divisional magistrate in a Criminal Case No. 10 of 1998 in whose favour the Sub Divisional Magistrate had passed an order directing her possession to be protected. The said order of the Sub- divisional Magistrate was challenged in a criminal Revision Application No. 26 of 2000. ( 2 ) THE facts on which the present criminal Revision Application is based is that the present non-applicant no. 1 is claiming to be in possession of suit land Survey No. 50 admeasuring 11 acres 35 Gunthas on the basis of the agreement of sale, on the contrary the present applicant claims to be in possession. The applicant has tried to substantiate its possession by pleading as done in para 2 of the application. "that Naib Tahsildar, Daryapur in Revenue case No. MISC-125/daryapur/97-98 dated 30-5-98 held that the non-applicant is in possession of field survey No. 50, area 11 acres 35 Gunthas. The said order dated 30-5-98 passed by Naib Tahsildar, daryapur came to be impugned by the present applicant before the Sub-Divisional officer, Daryapur by filing R. A. No. RTS- 64/daryapur 21/97-98. The non-applicant no. 1 was non-applicant before the learned sub-Divisional Officer, Daryapur in the aforesaid proceedings. By order dated 17-8-98 the learned Sub-Divisional Officer, daryapur, allowed R. A. No. RTS-64/ daryapur-21/97-98 filed by applicant. It was further held that present applicant is absolute owner is already recorded in w. F. 7. It was also held that applicant is entitled for the government aid. The order passed by Naib Tahsildar, Daryapur dated 30-5-98 which was in favour of non- applicant no. 1 was set aside and appeal filed by applicant came to be allowed by learned sub-Divisional Officer, Daryapur. " ( 3 ) IN the proceedings which were initiated before the Sub-Divisional Magistrate, daryapur, after noticing the parties and hearing them, he accepted the plea of present applicant in toto and passed the order on 23/2/2000 protecting the present applicant's possession. ( 4 ) THE present non-applicant no. 1 who was aggrieved by the order of the Sub- divisional Magistrate filed a Criminal Revision application before the Additional Sessions judge, Amravati, which was registered as criminal Revision Application No. 26/2000 which was heard and decided by the Judgment and order dated 11/11/2003. ( 4 ) THE present non-applicant no. 1 who was aggrieved by the order of the Sub- divisional Magistrate filed a Criminal Revision application before the Additional Sessions judge, Amravati, which was registered as criminal Revision Application No. 26/2000 which was heard and decided by the Judgment and order dated 11/11/2003. Learned Additional sessions Judge allowed the Revision application and declared the present non- applicant/revision petitioner before him to be in possession and directed that her possession should not be disturbed until present applicant herein receives possession of the suit property in due course of time. ( 5 ) IN this application, the applicant seeks exception to the Judgment and order of the Additional Sessions Judge, on the grounds as spelt out from the application and oral submission are as follows : (I) the Sub-Divisional Magistrate was expected and required by law to determine the fact of possession and not rightfulness or otherwise thereof which was done by him, while the Additional Sessions Judge went into the legality and therefore, the Judgment of additional Sessions Judge was erroneous, uncalled for and warranted interference by this court. (ii) That there were Judgments and orders of Revenue Authorities successively delivered in favour of the applicant in which the non-applicant no. 1 was excluded, while the applicant herein was found to be in possession. (iii) That the Regular Civil Suit No. 4 of 1995 was an ill advice action and the fact that the present applicant did not secure an order of injunction is of no significance as far as the jurisdiction of the Sub-Divisional Magistrate is concerned. (vi) Though the suit filed by the applicant herein was erroneous, still it was not open for the Additional Sessions Judge to have drawn an inference that the applicant had lost possession. (v) That the Judgment of the sessions Court is not based on sound reasons and the reasoning which is the soul of every order is imperative as held by Lordships of supreme Court in reported Judgment (2004)5 supreme Court Cases 568, State of Orissa vs. Dhaniram Luhar which reads as follows: "8. . . . . Even in respect of administrative orders Lord Denning, M. R. in Breen V. Amalgamated Engg. Union observed; "the giving of reasons is one of the fundamentals of good administration. " In Alexander machinery (Dudley) Ltd. Vs. . . . . Even in respect of administrative orders Lord Denning, M. R. in Breen V. Amalgamated Engg. Union observed; "the giving of reasons is one of the fundamentals of good administration. " In Alexander machinery (Dudley) Ltd. Vs. Carbtree it was observed: "failure to give reasons amounts to denial of justice. " "reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. "reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking-out. The "inscrutably face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance. " (vi) By interference in the order of sub-Divisional Magistrate, the Additional sessions Judge committed error of law which is apparent on its face and jurisdiction of High court for interference in such order of Sessions court under Sections 397 and 401 with 482 of cr. P. C. was warranted. ( 6 ) LEARNED Advocate Shri. Saboo has then drawn attention of this Court to the reasons recorded by the Additional Sessions judge contained in paras no. 5 to 7. In these paragraphs, the Additional Sessions Judge has attached due importance and weightage to the fact that the present applicant has lost the application for temporary injunction and the said order was challenged by her in District Court, where she lost and again in the High Court, where too she has lost. 5 to 7. In these paragraphs, the Additional Sessions Judge has attached due importance and weightage to the fact that the present applicant has lost the application for temporary injunction and the said order was challenged by her in District Court, where she lost and again in the High Court, where too she has lost. The learned Judge has specifically found while rejecting the application for temporary injunction which was filed by the present applicant in the Civil Court and had, therefore, held that the Revisional Petitioner before the Sessions Court was in possession of the suit field, and he, therefore, held that the reliance of the Sub-Divisional Magistrate on the revenue record of 1996-1998 for holding the present applicant in this Court to be in possession is contrary to law as well as the facts. ( 7 ) ACCORDING to Mr. Saboo on the facts of the case, when the Civil Court had recorded a finding of possession in favour of his client there were absolutely no grounds whatsoever for the Sub-Divisional Magistrate to have exercised the jurisdiction. In the result, according to him, the order passed by the additional Sessions Judge was the only course available in the revisional jurisdiction. According to him, the order passed in revisional jurisdiction by the Sessions Court being perfectly within the four corners of law and cannot be faulted for the reasons whatsoever, and no interference is warranted in the present application. ( 8 ) LEARNED Advocate Shri. N. R. Saboo further placed reliance on the following judgments : (i) 1993 (3) MH. L. J. 919, Mohd. Ishaque vs. Sunil Rupchand. (ii) 2003 (3) Mh. L. J. (sic), Gheverchand Vs. Pukhraj. (iii) Notes of Cases (1967) Mh. L. J. 20. The crux of the submission of Advocate mr. Saboo in placing reliance on these judgments is that where parties were already litigating in the Civil Court, and as in present case where the applicant now before this Court had already suffered an order with a finding favouring the present non-applicant no. 1 that she is in possession, the Sub-Divisional magistrate had no jurisdiction to entertain the case. Further according to Mr. 1 that she is in possession, the Sub-Divisional magistrate had no jurisdiction to entertain the case. Further according to Mr. Saboo in view of the Judgment in the case of Gheverchand supra, it was imperative for the Sub-Divisional magistrate who has recorded a finding that there existed apprehension as to breach of peace which eventuality alone can permit the sub-Divisional Magistrate to exercise the jurisdiction available to him under Section 145 of Cr. P. C. Moreover, when the Civil Court had recorded a finding as to possession of property, apart from propriety even on law the Sub- divisional Magistrate was not justified in exercising the jurisdiction. ( 9 ) ACCORDING to Mr. Saboo, judgment and order of the Sessions Court, therefore, cannot be considered to be of the nature of "inscrutable face of the sphinx" which approach is deprecated by the Supreme court. According to him, on the other hand the Judgment of the Sessions Court is well reasoned. It leaves out the rays of reasons leading to the judgment and does not prevent the Court of judicial review from the rational or foundation underlined it. ( 10 ) AFTER analysis of submissions advanced by both the sides, this Court reaches the conclusion that the finding recorded by the civil Court while deciding Exh. 14 in Regular civil Suit No. 4 of 1995, copy whereof is on record at page 50 onwards holding that :- "hence, prima facie, on the basis of the document of agreements of sale executed by the plaintiff no. 2 in favour of the defendant no. 1 and the entries in possession column or cultivation column in the revenue record of the suit land, it appears that the defendant no. 1 is in possession of the suit land and she is prima facie cultivating the suit land on the basis of the right vested in her under the document the agreement of sale. Hence, the possession of the defendant no. 1 prima facie, cannot be said of trespasser as submitted by the Counsel for the plaintiffs Shri. D J. Mahajan. As the defendant no. 1 has also filed suit for specific performance bearing (Special Civil Suit no. 49/95) against the plaintiff no. 2 who have executed the document of agreement of sale in her favour, the defendant no. 1's possession can be protected by her by way of sheild against the plaintiff no. As the defendant no. 1 has also filed suit for specific performance bearing (Special Civil Suit no. 49/95) against the plaintiff no. 2 who have executed the document of agreement of sale in her favour, the defendant no. 1's possession can be protected by her by way of sheild against the plaintiff no. 2 and also against the plaintiff no. 1 who is the wife of the plaintiff no. 2. " "4. . . . From the facts discussed above, prima faice it appears that the defendant no. 1 Farida Bano is in possession of the suit - land. She has paid huge amount to the plaintiff no. 2 for getting the sale transaction of the suit land in her favour. Thus, the submissions made by the Counsel for the plaintiffs that they are bogus and false transactions and therefore, no irreparable loss would be caused to the defendants if the injunction order would be passed in favour of the plaintiffs is also in my opinion prima facie without substance unless the matter is decided on merit. As the documents or record show that at present the defendant no. l Farida Bano is in possession of the suit land and some rights as claimed regarding the specific performance of contract are vacated and the possession is also shown delivered to her of the suit land, if the injunction order as claimed by the plaintiffs would be granted those rights of the defendants will be disturbed. " ( 11 ) THE aforesaid finding is recorded by the Civil Judge (SD) Daryapuron 4-3-1996 and there cannot be any other record contrary thereto and if at all it comes into existence, it carries any weightage whatsoever much less for adjudication as to factum of possession as well. ( 12 ) THE submissions of the learned advocate for the petitioner that the order is without reasons are not based on record. The judgment and order passed by the Additional sessions Judge is well reasoned. Recording of reasons does not essentially connote the length thereof. ( 13 ) OTHER grounds raised by the applicant are rendered unavailable in view of the evidence relied upon by the applicant being inadmissible and contrary to the order of Civil court, as well as want of finding by the Sub- divisional Magistrate relating to apprehension as to breach of peace. ( 13 ) OTHER grounds raised by the applicant are rendered unavailable in view of the evidence relied upon by the applicant being inadmissible and contrary to the order of Civil court, as well as want of finding by the Sub- divisional Magistrate relating to apprehension as to breach of peace. On the other hand, there are no reasons as to why the Judgment and order of the Additional Sessions Judge should be interfered which is well supported by reasons which are in turn well supported by facts and law. ( 14 ) IN the result, the Criminal revision Application fails for making out a case for any interference. Rule is discharged. Interim relief stands vacated. Revision dismissed.