Patna High Court
Maqsood Alam vs Mossamat Bibi Husna And Anr. on 15 October, 1969
Equivalent citations: AIR1971PAT31, 1971CRILJ393, AIR 1971 PATNA 31
JUDGMENT Wasiuddin, J.
1. These two revisions are directed against the final orders passed by the learned Magistrate in two separate proceedings under Section 145 of the Code of Criminal Procedure. The petitioner is the same is both these revisions who figured as second party in the two proceedings. In Criminal Revision No. 1063 Mossamat Bibi Husna was the first party and she is the opposite party in this present revision and in criminal revision No. 1069 Mahammed Ainul Haque, husband of Mossamat Bibi Husna figured as first party and he is the opposite party in this present revision. Both these proceedings are although in respect of different plots of lands, but they are between the same parties and common questions of law and facts arise, so both these revisions have been heard together. This judgment will, therefore, govern both these revisions.
2. In Criminal Revision No. 1063 the dispute is in respect of three plots, viz., plots Nos. 693, 530 and 367 measuring 0.71 decimals situate in village Bhandari, police station Kabul, district Patna. In Criminal Revision No. 1069 the proceeding was drawn up in respect of eleven plots as described in the order of the learned Magistrate, but it also appears from his order that during the proceeding the dispute between the parties was confined to only seven of the plots of that proceeding. There are thus in all ten plots which are the subject-matter of these two proceedings. In Criminal Revision No. 1063 a proceeding was instituted under Section 144 of the Code of Criminal Procedure on a petition filed by Mossamat Bibi Husna dated 1-6-1963. This proceeding was subsequently converted into one under Section 145 of the Code of Criminal Procedure on 16-8-1963. In Criminal Revision No. 1069 a proceeding under Section 144 of the Code of Criminal Procedure was started on the petition of Mahammad Ainul Haque, the husband of Mossamat Bibi Husna and this proceeding was also converted into one under Section 145 of the Code of Criminal Procedure on 8-1-1964. For the sake of convenience and easy reference hereinafter I would refer Mossamat Bibi and her husband Mahammad Ainul Haque as first party because they were the first party in the proceedings mentioned above and the present petitioner Maqsood Alam as the second party.
The case of the first party in both the proceedings was shortly to the effect that the lands which are the subject-matter of dispute originally belonged to one Mossamat Alihan who died leaving Mossamat Tanizan as her sole heir. The first party that is, Mossamat Bibi Husna and one Gulam Rasool purchased the lands which are the subject-matter of the two proceedings from Mossamat Tanizan by virtue of a registered deed of sale dated 3-3-1937. It was a joint purchase by the two persons, mentioned above and admittedly the recital of the deed shows that they were purchasers to the extent of half each. It was the further case of the first party that plot No. 367 of Criminal Bevision No. 1063 and four plots of Criminal Revision No. 1069 had been mortgaged by Mossamat Alihan herself, that is, the original proprietress in favour of one Azimuddin by a registered mortgage deed dated 7-8-1934, who had assigned the mortgage in favour of one M. A. Bashid. The first party after having purchased the property along with Gulam Rasool came in possession of the same and as early as in the year 1944 the first party redeemed the mortgage by paying off the assignee of the mortgagee, mentioned above, and, therefore, the first party claimed that she was in exclusive possession of the entire property conveyed by the sale deed by Mossamat Tanizan as she was looking after the interest of Gulam Rasool also and further that she came in exclusive possession of those plots which were in mortgage and had been redeemed by her. The first party came to know that the lands which are the subject-matter of the proceedings had been sold at an auction sale held under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954) and after having come to know this, the first party tried to find out if Gulam Rasool had been declared as an evacuee and for this a petition was filed by the first party before the Assistant Custodian, Patna making a prayer that she may be allowed to inspect the record declaring Gulam Rasool as an evacuee, but the report of the office was that there was no such record traceable. It was contended on behalf of the first party that Gulam Rasool was not an evacuee. The property had not been declared to be an evacuee property and that the first party had been coming in exclusive possession of the same and as such the first party should be declared to be in possession.
3. Now the case of the second party briefly stated was to the effect as follows: That there was a partition between Mossamat Bibi Husna and Gulam Rasool and in pursuance of such a partition the three plots which are the subject-matter of Criminal Revision No. 1063 and the seven plots which are the subject-matter of Criminal Revision No. 1069 had been allotted to the share of Gulam Rasool who was in exclusive possession of the same. Gulam Rasool is said to have migrated to Pakistan about 15 or 16 years ago and his property, therefore, became an evacuee property. The Evacuee Department, therefore, put up these lands for auction sale held under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and this auction sale was held on 30-10-1962. The second party Maqsood Alam purchased the property at the auction sale. He also deposited the required purchased money in Court and came in possession of the lands and also claimed to have grown rabbi crop. It was urged that Mossamat Bibi Husna, the first party thereafter filed objections, but these were all rejected ultimately by the Deputy Chief Settlement Commissioner on 20-6-1963. The second party, therefore, claimed to have been in exclusive possession of the lands and denied the possession of the first party.
4. In both the proceedings the findings of the learned Magistrate are the same and in both these he has declared the first party, that is, Mossamat Bibi Husna and Mahammad Ainul Haque respectively to be in possession. I may first of all give here in brief as to what are the findings of the learned Magistrate on the specific points which arose for determination before him. The facts which I have stated above would, therefore show that this was not disputed that Mossamat Bibi Husna and Gulam Rasool had jointly purchased the property as early as in the year 1937. The learned Magistrate disbelieved the case of partition as put forward on behalf of the second party on the ground that no document of partition had been filed and the second party even had not alleged the year or date or the manner of the partition.
5. The learned Magistrate also went into the question whether Gulam Rasool had migrated and had become an evacuee and as regards this question he referred to this fact that the first party filed a copy of the petition which she had filed before the Assistant Custodian, Patna requesting for the inspection of the record declaring Gulam Rasool as an evacuee and the report of the office was that no such record was traceable and no notification declaring the property as an evacuee property had been filed on behalf of the second party. It also appears from the orders of the learned Magistrate in both these proceedings that the only document which had been filed by the second party was the order sheet dated 30-10-1962 showing that the property had been sold at an auction sale and purchased by the second party. But from the orders of the learned Magistrate it also appears that this very order clearly shows that the lands were in illegal possession of some other persons of the village. The learned Magistrate was of the view that the documents which had been filed on behalf of the second party were in respect of the events which took place after the auction sale and that the sale certificate was dated 21-4-1965. It may be stated here that this position is also not disputed that after the auction sale when tbe first party filed objections then there had been an order Staying the confirmation of the sale and that is why there was a delay in the issue of the sale certificate. The sale certificate was issued when the objections filed by the first party were finally disposed of.
6. The learned Magistrate took into consideration one important circumstance which was to the effect that if as urged on behalf of the second party, the property had been declared to be an evacuee property, then the Custodian must have been in possession and there must have been documents for the period extending over such a long number of years showing that settlements were made by the Custodian with some person or the other, but there was no document showing whether any such settlement was made by the Custodian. The learned Magistrate also considered the affidavits and in view of all these facts and also the rent receipts which had been filed by the first party, held the first party to be in possession and passed orders as contemplated by Sub-section (6) of Section 145 of the Code of Criminal Procedure.
7. The second party being aggrieved by both these orders has preferred these two revisions and it may be stated here that he had gone up in revision before the learned Sessions Judge also making a prayer for a reference to the High Court, but his petitions there were dismissed. It may also be mentioned here that these two revisions have been referred to the Division Bench. At the time of hearing of these two revisions the main point which has been urged on behalf of the second party petitioner is that in the circumstances of the case specially having regard to the provisions of the Administration of Evacuee Property Act, 1950 (Act 31 of 1950) (hereinafter to be referred to as 'the Act'), a proceeding under Section 145 of the Code of Criminal Procedure was not maintainable and the learned Magistrate, therefore, was not competent to proceed in the matter and decide the matter in such a proceeding. Reliance has been placed on behalf of the second party on a decision of this Court in the case of Sayed Salahuddin Ahmad v. Janki Mahton, AIR 1957 Pat 549. It has been urged, on the other hand, that the aforesaid decision would not apply to the facts of the case as the present case is distinguishable from that case and further that the orders passed by the learned Magistrate were in no way illegal or improper and liable to be set aside. I may, therefore, first of all refer here to the relevant provisions of the Act. It may be mentioned here that previously there was an ordinance called 'the Bihar Administration of Evacuee Property Ordinance, 1949 (Bihar Ordinance No. 111 of 1949)'. There was an automatic vesting of a property in the Custodian if the property came within the meaning of an evacuee property as defined in Section 2 (d) and if the person holding such property was an evacuee within the meaning of Section 2 (c) of the Ordinance. Section 5 of the Ordinance lays down as follows:--
"Subject to the provisions of this Ordinance, all evacuee property situated in the Province of Bihar shall vest in the Custodian."
Section 6 of the Ordinance runs as follows:--
"(1) The Custodian may, from time to time, notify, either by publication in Official Gazette or in such other manner as may be prescribed, evacuee properties which have vested in him under this Ordinance. . ..."
This Ordinance was promulgated on the 21st of June, 1949. Later on, the Administration of Evacuee Property Act, 1950 was passed and this position was not disputed that if there be any proceeding with regard to immovable property that will only be taken under this Act. Section 7 of the Act requires that there should be a service of notice on the persons interested before declaring a property to be an evacuee property. Section 4 of the Act is rather important for the purposes of the matter which requires determination in these two revisions. Section 4 lays down as follows:--
"(1) The provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law.
(2) For the removal of doubts, it is hereby declared that nothing in any other law controlling the rents of, or evictions from, any property shall apply, or be deemed ever to have applied, to evacuee property." Section 8 of the Act deals with the vesting of the evacuee property in the Custodian and Sub-section (4) of Section 8 is also important and it lays down as follows:
"Where after any evacuee property has vested in the Custodian any person is in possession thereof, he shall be deemed to be holding on behalf of the Custodian and shall on demand surrender possession of it in the Custodian or to any other person duly authorised by him in this behalf."
Now in the case of AIR 1957 Pat 549 a Division Bench of this Court held that having regard to the provisions of Sub-section (4) of Section 8 of the Evacuee Property Act, even if certain person be found to be in possession of property declared to be evacuee, the possession must be deemed to be with the Custodian and in effect it is the Custodian who ought to be held to be in possession and that in this view of the matter, to proceed under Section 145 of the Code of Criminal Procedure with respect to that property would be inconsistent with the provisions of the Evacuee Property Act and, therefore, Section 145 shall not apply to the property which has been declared to be an evacuee property, I may also briefly give here as to what were the facts in that case.
It appears that there were two brothers named Salahuddin Ahmad and Masleuddin Ahmad, Masleuddin Ahmad was declared an evacuee under the Act of 1950 and these two brothers possessed certain properties jointly, and the half share of Masleuddin Ahmad had been declared to be an evacuee property under the aforesaid Act, The properties which were the subject-matter of the proceeding under Section 145 of the Code of Criminal Procedure were the half share of Masleuddin Ahmad declared to be an evacueee property and the half share of Salahuddin Ahmad. In that case there does not seem to have been a controversy on the point whether the person had been declared to be an evacuee and his properties had also been declared to be evacuee properties. Here in these two present revisions there was a serious dispute on the question whether the property was an evacuee property or not and the facts which I have stated above would show that there was no document or record of the case forthcoming to show if the property had been declared to be an evacuee property. I have already referred above to this fact that the first party had filed a petition before the Assistant Custodian, Patna praying that she may be allowed to inspect the record of the case declaring Gulam Rasool as an evacuee, but the office reported that there was no trace of any such record. When any record is not available, then two contingencies are possible. One of these is that there was such a record, but it is either missing or may have been destroyed under the rules. The second contingency can be that no such record ever existed, and the relevant papers did not show that there was any such record. Here in this case it clearly appears that perhaps there was no record ever at all and as such no record could be traced. A case where there was a record and it is not traceable stands on a different footing. Now in the case reported in AIR 1957 Pat 549 there does not seem to have been any controversy on this important point between the parties. The second distinguishing feature is that in that case the Custodian along with others was also a party, but here in these two present revisions the Custodian was not a party.
8. Now I may refer again to the provisions of Section 4 of the Act. It lays down that notwithstanding anything inconsistent therewith contained in any other law for the time being in force, the provisions of this Act shall prevail. A very important question, therefore, arises for consideration whether the provisions of Section 145 of the Code of Criminal Procedure are in any way inconsistent with the provisions of this Act. Sub-section (4) of Section 145 of the Code of Criminal Procedure lays down that the Magistrate shall without reference to the merits or the claims of any of such parties to a right to possess the subject-matter of dispute peruse the statements, documents etc., and if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject-matter of the proceeding. Sub-section (6) of Section 145 of the Code of Criminal Procedure lays down as to what should be the order in a proceeding under Section 145 of the Code of Criminal Procedure and according to this Sub-section after holding an inquiry as contemplated by Sub-section (4) of Section 145, the Magistrate on finding such person in possession of the said subject-matter of the proceeding shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding such disturbances of such possession until such eviction. The main purpose of a proceeding under Section 145 of the Code of Criminal Procedure is obviously to prevent a threatened breach of the peace in respect of the land. It is in the nature of a summary proceeding where a Magistrate is required only to give a tentative decision only about actual possession which is subject to a final determination. The Magistrate is not required in a proceeding under Section 145 of the Code of Criminal Procedure to give an adjudication either in respect of title or right to possession and it is only with regard to the actual possession.
I may now refer here again to the provisions of Sub-section (4) of Section 8 of the Act according to which where after any evacuee property has vested in the Custodian any person in possession thereof, shall be deemed to be holding on behalf of the Custodian and shall on demand surrender posses-
sion of it to the Custodian or to any other person duly authorised by him in this behalf, If a Magistrate in a proceeding under Section 145 of the Code of Criminal Procedure relating to a property even which has been declared to be an evacuee property declares a certain person to be in possession, then he will be deemed to be in possession on behalf of the Custodian as contemplated by Sub-section (4) of Section 8 of the Act. Section 8(1) of the Act envisages a deemed vesting of an evacuee property in the Custodian and Section 8(4) envisages that where actual possession may be with some other person Other than the Custodian and such person is declared to be in possession then his possession shall be on behalf of the Custodian. To me it appears that the combined effect of these provisions is that the interest in an evacuee property shall vest in the Custodian and whoever may be in possession of such property shall hold it on behalf of the Custodian although he is declared to be in possession of such property in view of Section 145(4) of the Code of Criminal Procedure, his possession shall be on behalf of the Custodian as mentioned above. I may also refer here to the provisions of Section 9 of the Act which confer power of the Custodian to take possession of the evacuee property vested in him. True it is, that it will be beyond the scope of a Magistrate in a proceeding under Section 145 of the Code of Criminal Procedure to adjudicate on the question whether the property is an evacuee property or not, but in my opinion, it will be within his jurisdiction to decide only this much of the question as to who was in actual possession at the time of the passing of the preliminary order.
9. Now supposing that there is a conflict of law, inasmuch as, that the provisions of Section 145 of the Code of Criminal Procedure are inconsistent with the provisions of the Act, then in that case a harmonious interpretation should be given. Section 145 of the Code of Criminal Procedure like other sections in that Code are (sic) with the idea and the supreme necessity of maintaining public tranquility and peace. Such proceedings should be allowed to continue unless there is such a direct conflict between the provisions of the Code and the Act so as to militate against the provisions of the Act. In my opinion, considering these aspects of the matter, there is no conflict between the provisions of the Act and the provisions of the Code of Criminal Procedure and, therefore, it cannot be said that a proceeding under Section 145 of the Code of Criminal Procedure is not maintainable when the property is said to be an evacuee property. In this case I may also mention here that the learned Magistrate does not seem to have been wrong or in any way has misdirected himself in deciding the question of actual possession. There was that important circumstance there that there was no document showing whether during these long number of years after the property is alleged to have been declared as evacuee property there was any settlement by the Custodian. The first party is admittedly a co-sharer and claims to have been in exclusive possession and then there are the rent receipts as well as the affidavits filed coupled with this fact that at the time of the preliminary orders neither sale certificate had been issued nor delivery of possession had been effected; so at the time of the preliminary orders it appears that the Magistrate rightly held that the first party was actually in possession.
10. I may also in this connection refer here to an unreported Division Bench decision of this Court by K. Sahai and A. B. N. Sinha, JJ., in the case Md. Nazir v. Nokha Rai, Cri. Revn. No. 1457 of 1963 (Pat). In that case the case of Salahuddin Ahmad, reported in AIR 1957 Pat 549 also came up for consideration and their Lordships in the unreported decision also distinguished that Salahuddin's case was a case in which the custodian was a party. As regards the decision in Salahuddin's case on the point whether a proceeding under Section 145 of the Code of Criminal Procedure was maintainable or not, their Lordships were pleased to observe as follows:--
"With great respect, this view is open to some doubt. Under the provisions of the Act, any one, who is in possession, has to make over possession on demand to the Custodian; but there is nothing to show that there is any conclusive presumption that actual possession is, at a particular time, with the Custodian. If a proceeding under Section 145 is drawn up, the only question which is to be determined is the question of actual possession. If it is found that some person other than the Custodian is in actual possession, the Custodian can proceed under Section 9 of the Act to demand possession which is necessarily to be surrendered to him. In this view of the matter, I do not think that there is any conflict between the provisions of the Act and the provisions of Section 145 of the Code."
The aforesaid decision was also followed in the case of Ramanand Prasad Yadav v. Md. Salimuddin, Criminal Revn. No. 233 of 1965 (Pat) by S. P. Singh, J., and in that case also the petitioners claimed to be the purchasers of the disputed land from one Banarsi Das who happened to purchase the land at auction sale held by the managing officer appointed under the Displaced Persons (Compensation and Rehabilitation) Act, 1954.
11. It has also been strenuously argued on behalf of the petitioner second party that no declaration under Section 7 of the Act was necessary to have been made because it was a case where there was an automatic vesting under Section 5 of the Ordinance which I have referred above. True it is, that if the migration was at a time when this Ordinance was in force, then there would have been an automatic vesting, but here again there was a serious controversy between the parties on the question firstly whether Gulam Rasool really migrated and secondly as to when he had migrated. As I have already pointed above, the Magistrate was not competent to go into the question and adjudicate whether the property was an evacuee property or not and the Magistrate really has not decided that point, but has really only decided the point relating to the actiTal possession. The orders, therefore, of the learned Magistrate cannot be said to be in any way illegal or improper.
12. It has also been urged that the first party also cannot dispute the factum of the declaration of the property as an evacuee property and the right of the second party because there has been an order rejecting her objections and since she submitted to that jurisdiction, she is bound by the order passed in that case. The second party in this connection has relied on the order passed by Mr. H. R. Nair, Deputy Custodian General of Evacuee Property, New Delhi. It appears from this order that he had passed this order in a revision petition filed under Section 27 of the Act. The learned Deputy Custodian General has also stated in this order that the report of the Assistant Custodian-cum-Managing Officer shows that the original record of declaration of the property was not traceable, but has also stated that the petitioner meaning thereby the first party had nowhere challenged the evacuee status of Mohammad Gulam Rasool. Further on, the learned Deputy Custodian General observed that if there was any technical defect in the declaration proceedings, although nothing could be said in the absence of the file, the property of Moharnmad Gulam will vest in the Custodian under the provisions of local laws of automatic vesting. This clearly shows that no document had been filed showing that the property was an evacuee property and inference was also drawn against the first party as stated above because she did not contest the position that Gulam Rasool had opted for Pakistan which in this Court the learned Counsel appearing for the petitioner has stated that this had been seriously disputed that he was an evacuee under the Act. In my opinion, the question whether Gulam Rasool was an evacuee or not is a matter on which it will not be proper for this Court to give any finding in these two revisions and as pointed above, the learned Magistrate also could not have been competent to give any finding on this point and, therefore, the rejection of the objections of the first party does not affect the question of actual possession. The first party in the proceeding under Section 145 of the Code of Criminal Procedure had not been seeking any declaration against the order of rejection passed against her or for setting it aside and the learned Magistreate also would not have been, competent to pass any such order, but had been only asking for a declaration as to who was in possession and as pointed above, the learned Magistrate in the light of the circumstances and the documents before him has held the first party to be in possession. Questions have also been raised to the effect that there was a finality of the decision as contemplated by Section 27 of the Act, but as pointed above, the decision is not being challenged and the Magistrate was only required to make a declaration as to who was in possession.
13. Learned counsel for the petitioner second party relied on the provisions of Section 46 of the Act which lays down as follows:--
"Save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction-
(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or *****
(c) to question the legality of any action taken by the Custodian-General or the Custodian under this Act; or
(d) in respect of any matter which the Custodian-General or the Custodian is empowered by or under this Act to determine." I have already pointed above, that an inquiry in a proceeding under Section 145 of the Code of Criminal Procedure has a very limited scope and is only with a view to maintain peace so that one party who is in actual possession may be so declared for the time being until final determination and as in the proceeding under Section 145 of the Code of Criminal Procedure no decision had been sought on the questions as contemplated by Section 46 of the Act, so in this view of the matter, it cannot be said that a proceeding under Section 145 was not maintainable. Similarly, in my opinion, Section 36 of the Displaced Persons (Compention and Rehabilitation) Act, 1954 will also not bar a proceeding under Section 145 of the Code of Criminal Procedure when it is confined to a very limited question, viz., about actual possession.
14. On a consideration of all these facts, in my opinion, the proceedings under Section 145 of the Code of Criminal Procedure in the circumstances of the case, were maintainable and the learned Magistrate had jurisdiction to declare possession and the orders of the learned Magistrate are based on good grounds and on the basis of the documents and circumstances, as available on the record, and, therefore, there is no illegality or impropriety in the final orders passed by the learned Magistrate in the two proceedings and, therefore, both these present revision applications are dismissed.
Bahadur, J.
15. I agree.