- Bookmark
- Share
- CaseIQ
Masih Uddin v. State
Concise Analytical Summary of the Opinion (Wali Ullah, J.)
Factual and Procedural Background
The applicant, acting as Mukhtar-i-am of the Mutwallis of a waqf, filed an application under Section 145, Cr.P.C. on 26 November 1949, alleging that the opposite-party (Bhura and others) were interfering with the trustees' possession over several plots of land in village Kalolijar, district Hamirpur, causing apprehension of breach of the peace. The applicant produced a Dakhalnama showing that, pursuant to a decree for ejectment passed by the revenue court in a suit under Section 180, U.P. Tenancy Act (1948 decree), execution proceedings had been carried out by a Vakil Commissioner and possession delivered to the decree-holder. The applicant also produced four witnesses; the opposite-party produced three witnesses and filed an extract of the Khasra for 1357 Fasli.
The learned Magistrate, after hearing evidence, recorded that despite the formal ejectment under the revenue decree, Bhura continued in possession and found in favour of the opposite-party; accordingly crops attached were directed to be released in favour of the opposite-party by order dated 19 July 1950. The Sessions Judge dismissed the applicant's revision on 9 March 1951. The applicant then approached this Court in revision.
Legal Issues Presented
- Whether, in proceedings under Section 145, Cr.P.C., the Magistrate was bound to give effect to and maintain possession as declared by a competent civil court decree and the execution (Dakhalnama) flowing from it.
- Whether the learned Magistrate misread or failed to give due weight to the documentary and oral evidence produced by the applicant (including the Dakhalnama and the testimony of witnesses such as Masihuddin).
- Whether this Court, in revision, should interfere with the Magistrate's finding on the factum of possession where the lower court(s) allegedly failed to approach the matter from the proper point of view.
Arguments of the Parties
Applicant's Arguments
- The learned Magistrate failed to attach due weight to the decree for ejectment obtained in the revenue court and to the consequent execution proceedings (as evidenced by the Dakhalnama), which established the applicant's possession.
- The learned Magistrate misread or ignored material evidence, notably the oral testimony of witnesses produced for the applicant (including Masihuddin), leading to an incorrect finding that Bhura remained in actual possession.
Opposite-party's Arguments
- Counsel for the opposite-party, Mr. S.N. Misra, contended that this Court in revision is ordinarily bound to accept the Magistrate's finding on the factum of possession and cited authorities from other courts to that effect.
- It was also contended that, pursuant to the Magistrate's order of 19 July 1950, the second party had been in actual possession and had been cultivating the plots; therefore the second party should be allowed to reap the crops currently standing in the fields.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Daulat Koer v. Rameshwari Koeri, I.L.R. 26 Cal. 625 | Cited to support the general proposition that a Magistrate holding proceedings under Section 145, Cr.P.C. must maintain the rights of parties when those rights have been declared by a competent civil court within a time not remote from the criminal proceedings. | The case was relied on by the applicant's counsel as part of the body of case law establishing the Magistrate's duty to respect civil decrees; the Court treated it as part of the background authority supporting that duty. |
| Sukan Singh v. Prayag Singh, A.I.R. 1920 Pat. 210 | Cited for the same general principle that a criminal court under Section 145 should maintain possession as determined by a competent civil court. | Relied upon by the applicant's counsel; the Court regarded it among the authorities illustrating the duty of the Magistrate to respect civil court determinations in Section 145 proceedings. |
| Makhan Lal v. Mangal, I.L.R. 1943 All. 150 (Yorke, J.) | Express holding quoted: where a civil court has decided in favour of a person as owner entitled to possession of a plot, Section 145 of the Code of Criminal Procedure could not apply; the Magistrate's duty is to ascertain which party held the civil court decree and maintain that party in possession. | The Court quoted this decision at length and applied its principle to conclude that the learned Magistrate ought to have given controlling effect to the civil decree and the execution (Dakhalnama); the Magistrate's treatment of possession as merely "formal" was held to be incorrect in light of this authority. |
| Imtiaz Ali Khan v. Shekh Badruddin (Cheif Court, Bennett, J.) | Held that where a civil court has already disposed of the matter in favour of a party, proceedings under Section 145 should be set aside in revision; the Magistrate may, if necessary, take steps under Section 107, Cr.P.C. | The Court relied on this authority to support the proposition that revision should be available where the criminal court has not respected a prior civil determination and that the Section 145 proceedings could be set aside for that reason. |
Court's Reasoning and Analysis
The Court proceeded by focusing on the relationship between civil decrees for possession and proceedings under Section 145, Cr.P.C. It observed that Section 145 proceedings are intended to determine and protect actual possession between disputing parties; the party found to be in actual possession is to be maintained in that possession until lawfully evicted. When a competent civil court has recently declared a right to possession in favour of one party, the criminal court conducting Section 145 proceedings must respect and maintain that declared right rather than attempt to relitigate or nullify it.
Applying that legal principle, the Court examined the materials before the Magistrate: the Dakhalnama (documentary evidence of execution and delivery of possession pursuant to a revenue court decree) filed by the applicant and the extract of the Khasra for 1357 Fasli filed by the opposite-party. The Court noted two principal errors in the Magistrate's approach:
- The learned Magistrate treated the execution proceedings and the delivery of possession (as evidenced by the Dakhalnama) as merely "formal" and divorced from the factual question of actual possession — a characterization the revisional Court found unjustified.
- The Magistrate relied significantly on the Khasra extract for 1357 Fasli in favour of the opposite-party, but the Court pointed out that the fasli year began on 8 September 1949 while the Section 145 application was filed on 26 November 1949; the Khasra entries were likely made after the dispute had commenced and the extract obtained only in April 1950 from the Patwari, affecting the weight to be given to that document.
The Court also addressed the argument that revisional jurisdiction should not ordinarily upset findings of fact. It accepted that, as a principle, this Court ordinarily will not interfere with concurrent findings of fact by inferior courts. However, the Court emphasized that when the lower courts have not approached the matter from the proper legal point of view — producing a manifest failure of justice — the revisional court must and will intervene. The Court found such failure of approach here because the Magistrate did not give appropriate effect to the civil decree and its execution, and hence the factual conclusion about possession was reached on an improper basis.
On this foundation the Court concluded, relying on the cited authorities, that the applicant (first party) must be treated as being in actual possession on the relevant date by virtue of the civil decree and the execution (Dakhalnama) effected prior to the institution of the Section 145 proceedings.
Holding and Implications
Core Ruling: Revision allowed; the order of the learned Magistrate dated 19 July 1950 was set aside.
Practical consequences and directives contained in the opinion:
- The possession of the applicant (the first party) over the disputed land is to be maintained; the second party is directed not to interfere with that possession until the first party is ejected in due course of law.
- The crops that had been attached and sold during the pendency of the proceedings generated monies now deposited in Court; those deposited monies shall be paid over to the first party.
- Although the Court ordered delivery of possession to the first party, it permitted the second party to reap the crops standing in the fields at the time, noting that the second party had been cultivating them pursuant to the Magistrate's earlier order; in any event possession of the plots was to be delivered to the first party after 15 May 1952.
Broader legal implication: The decision reaffirms the established position (as reflected in the authorities cited) that a Magistrate conducting proceedings under Section 145, Cr.P.C. must respect and maintain possession as declared by a competent civil court when that civil determination is recent and operative. The opinion does not purport to lay down a new principle of law beyond applying those precedents to the facts of this case; its immediate effect is the restoration of possession and payment directions described above.
Wali Ullah, J.:— The applicant has come up in revision against an order passed by the learned Magistrate on the 19th of July, 1950, by which the crops attached were directed to be released in favour of the opposite-party i.e Bhura and others. This order of the learned Magistrate was affirmed by the learned Sessions Judge on the 9th of March, 1951, when he dismissed the application in revision.
2. It appears that the applicant, on the 26th of November, 1949, made an application under Section 145, Cr. P.C as the Mukhtar-i-am of the Mutwallis of a waqf. It was alleged by the applicant that the opposite-party, namely Bhura and others, were interfering with the possession of the Mutwallis trustees over a large number of plots of land in village Kalolijar in the district of Hamirpur. It was alleged that there was consequently an apprehension of a breach of the peace. Notice was issued to the Opposite-party and proceedings under Section 145, Cr. P.C were carried on in the Court of the Magistrate. The applicant, in support of his case, filed the Dakhalnama which showed that, in pursuance of a decree for ejectment passed by the revenue court in a case under Section 180, U.P Tenancy Act, against Bhura along with some others, proceedings in execution had been carried out by a Vakil Commissioner appointed by the Court and possession delivered to the decree-holder. Along with this piece of documentary evidence some witnesses were also produced by the applicant to support his case.
3. The opposite-party denied that the trustees of the waqf had obtained actual possession by means of execution proceedings in the revenue court. Some witnesses were also produced to support the case of the opposite-party.
4. The learned Magistrate, on a consideration of the materials before him, recorded the opinion that in spite of the formal ejectment of Bhura under the decree passed in the suit in 1948, he i.e, Bhura, continued in possession of the plots in dispute; in other words, it was held that the second party was not actually dispossessed from the land in dispute in spite of the delivery of possession which, according to the learned Magistrate, was only formal.
5. There were four witnesses in support of the case of the applicant, namely Mathura, Raja Ram, Ahmad and Masihuddin while there were three witnesses in support of the case of the opposite-party, namely Bhura, Bhaggi Singh and Jodha Singh. There was also an extract of Khasra for 1357 Fasli filed on behalf of the opposite-party.
6. The oral evidence given by the opposite-party was apparently believed by the learned Magistrate, while that produced in support of the case of the applicant appears to have been rejected.
7. In revision the learned Sessions Judge found that there was no legal defect in the judgment of the learned Magistrate and so the application in revision was rejected.
8. Learned counsel for the applicant has raised two points in this Court: (1) that the learned Magistrate has not attached due weight to the decree for ejectment passed by the revenue court in the suit under Section 180, U.P Tenancy Act and (2) that the learned Magistrate had misread the evidence of some of the witnesses produced by the applicant. It was also urged that the evidence of Masihuddin applicant had been entirely ignored by the learned Magistrate.
9. In support of point No. 1 taken by the learned counsel for the applicant, my attention has been invited to a number of rulings in which, in effect, it has been held that it is the duty of the Magistrate holding proceedings under Section 145, Cr. P.C to maintain the rights of the parties when such rights have been declared by a competent court within a time not remote from taking proceedings under the section.
10. Learned counsel has relied on the cases of (1) Daulat Koer v. Rameshwari Koeri I.L.R 26 Cal. 625., (2) Sukan Singh v. Prayag Singh A.I.R 1920 Pat. 210., (3) Makhan Lal v. Mangal I.L.R 1943 All. 150., and (4) Imtiaz Ali Khan v. Shekh Badrtiddin.4
11. In the case of Makhan Lal v. Mangal, decided by this Court, it was held by Yorke, J:—
“Where the civil court had decided in favour of a certain person that he was the owner entitled to the possession of a plot, it was held that in such a case Section 145 of the Code of Criminal Procedure could not apply.”
12. At page 153, the learned Judge observed:—
“It has been held in various cases that “where there is a decree of a civil court for possession in respect of the disputed land, the duty of a criminal court proceeding under this section is to find which party held such civil court decree and then to maintain that party in possession.”
13. Further the learned Judge proceeded to observe:—
“Again it has been said that it is the duty of the Magistrate to maintain any order which has, been passed by the civil court; and therefore to take proceedings which must necessarily have the effect of modifying or cancelling such order or of interfering with the rights of the parties determined by a civil court is to assume a jurisdiction that the law does not contemplate.” Similarly it has been held that “when the rights of the parties have been determined by a competent court, the dispute is at an end, and it is the duty of the Magistrate to maintain the right of the successful party, and the defeated party will not be allowed to invoke the aid of the Magistrate and the police to neutralise the effect of the decree “of the competent civil court.”
14. In the case of Imtiaz Ali v. Shekh Badruddin, (ubi supra) decided by the Cheif Court, Bennett, J. held:—
“Where the civil court which was seized already of the matter has disposed of it in favour of one of the parties to proceedings under Section 145 the proceedings under Section 145 should be set aside in revision. It will be open to the Magistrate, if he thinks necessary, to take, proceedings against either or both parties under Sec. 107, Cr. P.C”
15. In view of the case law mentioned above, it seems to me quite clear that the learned Magistrate in the present case did not attach that importance to the decree for ejectment and the execution proceedings consequent upon it, which it was his bounden duty to do. After all when proceedings under Section 145 of the Code of Criminal Procedure are taken it is intended by the Legislature that the court concerned would come to a finding as to which of the two parties is actually in possession. Such possession has to be protected. The party found to be in actual possession has to be maintained in that possession until such party is evicted therefrom in due course of law. Meanwhile all disturbance of possession is forbidden. If there has already been a decision by a competent court, under which a right to possession has been declared in favour of one party or the other, that decision must be respected and maintained by the criminal court.
16. In the present case the learned Magistrate has again and again treated the proceedings, for delivery of possession in pursuance of the decree for ejectment to be purely a formal proceedings divorced altogether from the factum of actual possession. In this, it seems to me, the learned Magistrate was very much mistaken.
17. Again, the learned magistrate has put a good deal of reliance on the extract of Khasra for 1357 Fasli in holding in favour of the opposite-party. 1357 Fasli began on the 8th of September, 1949. The application under Section 145 was filed in the court of the Magistrate by the present applicant on the 26th of November, 1949. It is, therefore, clear that at the time when the Khasra entries for the year 1357 Fasli were actually made, the dispute with regard to the possession of the fields in question had in all probability already commenced. Moreover, the Patwari of the circle who prepared the Khasra entries, was then in possession of this Khasra as the copy of the extract of the Khasra filed by the opposite-party was obtained from him sometime in April 1950.
18. It seems to me, therefore, that the learned Magistrate did not approach the evidence in this case from the proper point of view. This was particularly so in regard to the documentary evidence, namely the Dakhalnama filed on behalf of the applicants and the Khasra extract for 1357 Fasli filed on behalf of the opposite-party. As I have said above, the learned Magistrate failed to appreciate the effect of the decree and consequently of the Dakhalnama executed in execution of the decree for ejectment.
19. Mr. S.N Misra, the learned counsel for the opposite-party, Bhura and others, has contended that in revision this Court is bound to accept the finding of the learned Magistrate on the question of the factum of possession. He has cited some authorities of Courts other than this Court, to show that the finding on the factum of possession is binding on this Court. It seems to me, however, that the correct position is that ordinarily this Court, sitting in revision, will not interfere with findings of fact recorded by the court or courts, below. When, however, it appears to this Court that the case has not been approached from the proper point of view by the court, or courts below as the case may be and that consequently there is reason to think that there has been a failure of justice, this Court will undoubtedly interfere at the revisional stage. This, to my mind, is the correct legal position and this has been affirmed again and again by decisions of this Court.
20. It seems to me that, on the basis of the decree very recently obtained by the trustees of the waqf, whose Mukhtar-i-am was the applicant, prior to the institution of proceedings in the criminal court under Section 145, Cr. P.C, the applicant must be held to be in possession. It may be noted here in passing that it is not the case of the opposite-party that they obtained possession of the plots afresh after the termination of execution proceedings under which the decree-holder must be deemed to have obtained actual possession of the plots in dispute. I am unable to appreciate the significance of the word “formal” which has been repeatedly used by the learned Magistrate in connection with the execution proceedings in pursuance of the decree for ejectment.
21. For the reasons given above, it must be held that the first party was in actual possession of the plots indispute on the relevant date. I accordingly set aside the order of the learned Magistrate dated the 19th of July, 1950. The possession of the applicant i.e the first party, over the land in dispute shall be maintained and the second party is directed not to interfere with the possession of the first party until that party is ejected therefrom in due course of law.
22. It appears that the crops attached during the pendency of these proceedings were sold and the money is in deposit in Court. This money, which is in deposit in Court, shall now be paid over to the first party. Mr. Misra, the learned counsel for the opposite-party, has submitted that in pursuance of the order of the learned Magistrate passed on the 19th of July 1950, his clients i.e the second party, have been in actual possession of the plots and been cultivating them, and that his clients the second party, should be allowed to reap the crops standing today as they must have been sown by them. This order will not stand in the way of the second party reaping the crops standing in the fields in dispute. In any case, therefore the possession of the plots must be delivered to the first party after the 15th of May, 1952.
23. Revision allowed.
Alert