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2007 DIGILAW 566 (CAL)

MD. ISHA ALI ALIAS SK. KHOKA v. MEHERNAGER BEWA

2007-07-27

KALIDAS MUKHERJEE

body2007
( 1 ) THIS revisional application has been preferred under Sections 397, 401 and 482 Cr. P. C. against the order dated 18. 2. 2005 passed by learned sessions Judge, in Criminal Revision No. 14 of 2004 allowing the revisional application and setting aside the order dated 14. 11. 2003 passed by learned executive Magistrate, Chanchal, Malda in Case No. 76m/87 under Section 145 Cr. P. C. directing the return of the deposited money to the petitioner. ( 2 ) THE case of the petitioner in short, is that the proceeding under section 145 Cr. P. C. being No. 76m of 1987 was initiated vide G. D. Entry no. 137 dated 05. 06. 87 of Ratua P. S. The Officer-in-Charge of Ratua P. S. stated in the report that the 1st party (1) Sk. Khoka and (2) Sk. Moktar were enjoying the case land unauthorizedly and illegally. The second party (1) Kaisul Haque and (2) Abu Bakkar along with others were trying to take over possession of said land demanding the property as enemy property. The J. L. R. O. , Ratua-II reported that the 1st party enjoyed the fruits of the garden illegally and they have got no legal right as the legal owners were staying in Bangladesh since long. Under the circumstances the O. C. Ratua P. S. submitted report for the drawing up of the proceeding under section 145 Cr. P. C. in respect of both the parties. ( 3 ) ON the basis of the report of the O. C. , Ratua P. S. dated 06. 06. 87 the learned Sub-Divisional Magistrate passed an order on 06. 06. 87 appointing the O. C. Ratua P. S. as the custodian of the case land along with the mango trees on it and further directed that the custodian will dispose of the produce of the disputed land and deposit the sale proceeds under the appropriate head of account. ( 4 ) THE 1st party in the said case contended that the owners of the case land viz. Bibi Anisatul Fatema, Jahanara Khatun and Bibi Khurshed ali Khatun executed power of attorney in favour of Asedulah Chowdhury and Jonab Sarif Chowdhury on 27. 05. 1966 and thereafter the said constituted attorney delivered possession to the father of the petitioners. The father of the petitioners died on 05. 11. 1986 leaving the petitioners, other two sons and four daughters. Bibi Anisatul Fatema, Jahanara Khatun and Bibi Khurshed ali Khatun executed power of attorney in favour of Asedulah Chowdhury and Jonab Sarif Chowdhury on 27. 05. 1966 and thereafter the said constituted attorney delivered possession to the father of the petitioners. The father of the petitioners died on 05. 11. 1986 leaving the petitioners, other two sons and four daughters. On 21. 02. 2001 the case under Section 145 Cr. P. C. was finally heard and dismissed. The learned Magistrate upheld the possession of the petitioners and directed the O. C. /custodian to restore possession to the petitioners. ( 5 ) ON 28. 02. 2001 the O. C. Ratun P. S. informed the Court that as per order dated 21. 02. 2001 the case land was handed over to the 1st party i. e. 1. Sk. Khoka and 2. Sk. Moktar. Thereafter, on 14. 11. 2003 the learned Magistrate passed the order directing to pay the deposited money amounting to 1,56,938/- to the petitioners who were in possession of the case land by virtue of the power of attorney and the petitioners further purchased the case land from Jahanara Khatun and others in 2000-2001. ( 6 ) BEING aggrieved by the order of the learned Magistrate dated 14. 11. 2003, the O. P. Nos. 1 to 3 instituted the Criminal Revision case bearing No. 14 of 2004 before the learned Sessions Judge, Malda, contending, inter alia, that their father Kutubuddin Ahmed was the owner of the disputed property and on his death the petitioners and the O. P. Nos. 1 and 2 and others inherited the property in question. ( 7 ) IT is the further case of the petitioners that their father got possession of the case land in 1966 from the admitted owners. But due to sudden death of Ashadullah Chowdhury no registration could be made regarding the sale deed and their father Hazi Kutubuddin got possession of the disputed property and his name was recorded as permissive possessor in the L. R. Record of-Rights. To avoid complication, the petitioners and two others viz. Md. Kaiyum and Md. Hossenara purchased the property in question from the original owners viz. Bibi Anisatullah and jahanara Khatun by 5 registered Sale deeds in the years 2000 and 2001. The petitioner thus became the owners and possessor of the property in question. ( 8 ) BY an order dated 18. 02. Md. Kaiyum and Md. Hossenara purchased the property in question from the original owners viz. Bibi Anisatullah and jahanara Khatun by 5 registered Sale deeds in the years 2000 and 2001. The petitioner thus became the owners and possessor of the property in question. ( 8 ) BY an order dated 18. 02. 2005, the learned Sessions Judge, Malda, allowed the revisional case and set aside the order of the learned magistrate dated 14. 11. 2003. ( 9 ) MD. Habibuddin and others instituted a suit bearing O. C. No. 125 of 2002 before the learned Civil Judge (Junior Division), 1st Court,malda for declaration of title and permanent injunction. The O. P. Nos. 1 to 3 are not parties in the said suit. The said suit was instituted after disposal of the case under Section 145 Cr. P. C. ( 10 ) THE learned Advocate appearing on behalf of the petitioners has submitted that in the proceeding under Section 145 Cr. P. C. the question of possession only was relevant and ownership cannot be looked into in such a proceeding. It is further contended that the civil suit was instituted subsequent to the disposal of the case under Section 145 Cr. P. C. and, as such, the order passed by the learned Magistrate in the proceeding under section 145 Cr. P. C. directing the return of the deposited money to the petitioners remained unaffected. It is contended that the learned Sessions judge committed illegality and material irregularity in setting aside the order passed by the learned Magistrate. ( 11 ) NONE-APPEARED for the O. Ps. ( 12 ) LT appears from the order dated 14. 11. 2003 of the learned magistrate that as per the enquiry report of J. L. R. O. , Ratua - II the 1st party i. e. 1. Sk. Khoka and 2. Sk. Moktar were enjoying the fruits of the garden illegally having no right as the legal heirs were staying in bangladesh since long. It further appears that O. C. Ratua P. S. was appointed custodian of the case land with the direction that the custodian will dispose of the produce of the case land and deposit the sale proceeds under the appropriate head of account. From the said order it further appears that the learned Sub-Divisional Magistrate dismissed the case under Section 145 Cr. P. C. on 21. 02. From the said order it further appears that the learned Sub-Divisional Magistrate dismissed the case under Section 145 Cr. P. C. on 21. 02. 2001 with the direction to the O. C. Ratua P. S. to return the possession of the case land to its legal owners and accordingly Ratua P. S. informed the learned Magistrate that on 28. 02. 2001 the case land was handed over to the 1st party No. 1. i. e. Sk. Khoka and 2. Sk. Moktar. ( 13 ) THE learned Executive Magistrate vide order dated 14. 11. 2003 further directed O. C. Ratua P. S. to hand over all the sale proceeds amounting to Rs. 1,56,938/- accrued from the case land from 1987 to 2000 to the 1st party i. e. Sk. Khoka. Being aggrieved by the said order passed by the learned Executive Magistrate, the O. Ps. of the proceeding under section 145 Cr. P. C. preferred a revisional application before the learned sessions Judge. The learned Sessions Judge after hearing both the parties allowed the revisional application setting aside the learned Magistrate dated 14. 11. 2003. ( 14 ) IT further appears from the papers filed in this revisional application that a suit was instituted against the petitioners of the proceeding under Section 145 Cr. P. C. i. e. Sk. Khoka and Sk. Moktar and others praying far a declaration that the plaintiffs have title in the suit land and for a decree of permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiffs and for a declaration that the deeds of the years 2000-2001 are forged and fabricated and for a further declaration that the plaintiffs are entitled to get the money deposited with the Treasury in connection with the proceeding being no. 76m/1987 in the Court of Executive Magistrate at Malda now pending in the Court of learned S. D. E. M. , Chanchal, Malda. ( 15 ) NOW it is the contention of the learned Advocate for the petitioners that the order for the deposit of the sale proceeds was passed by the learned Magistrate prior to the institution of the suit and, that apart, question of title does not come up for adjudication in a proceeding under Section 145 Cr. ( 15 ) NOW it is the contention of the learned Advocate for the petitioners that the order for the deposit of the sale proceeds was passed by the learned Magistrate prior to the institution of the suit and, that apart, question of title does not come up for adjudication in a proceeding under Section 145 Cr. P. C. But on perusal of the orders passed by the learned Executive magistrate it is clear that the original owners of the case land are the residents of Bangladesh and the petitioners were in illegal possession of the case land as held by the learned Executive Magistrate. Moreover, the learned Executive Magistrate further directed that the possession of the case land should be restored to its legal owners. The suit has been instituted praying, inter alia, for a declaration that the plaintiffs are entitled to get the return of the deposited money in connection with the case under section 145 Cr. P. C. As the plaintiffs of the suit bearing No. 125 of 2002 claimed the return of the deposited money, and having regard to the earlier order of the learned Magistrate directing that the possession of the case land be restored to it legal owners and, the ownership of the case land being disputed, I find that the learned Sessions Judge was justified in setting aside the order of the learned Executive Magistrate dated 14. 11. 2003. No illegality or material irregularity was committed by the learned Sessions Judge in passing the said order and there is no ground to interfere with the same. There is no merit in this revisional application and the same is dismissed. .