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Tekchand Vs. Sabir Husain - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1955CriLJ480
AppellantTekchand
RespondentSabir Husain
Excerpt:
.....by sabir husain as well as ahmed shariff, despite this application the court directed delivery of possession to sabir husain. that in the circumstances the court held that it was unable to interfere with the order of the civil court which has been executed on 13-1-1953. 8. it should be clearly noted that the revision petition before us is from the order of the city criminal court. one or two things stand out clearly from their arguments. as tekchand was a party to the contempt proceedings started by sabir husain, he knew full-well that the duration of ahmed shareef's interest was at the most upto 1-12-52 only and still he took the lease from ahmed shareef. it was argued further the hotel was in custodia legis and the criminal court should not have allowed its own dispossession without..........sheriff filed a petition in the city civil court that he had delivered possession of the disputed property to tekchand at the instance of the owner sabir hussain and therefore the court should record that fact and declare that the decree was executed out of court. after this, it is stated, that on 15-12-1952 an execution petition was filed by sabir hussain against ahmed sheriff and that ahmed sheriff withdrew his petition dated 28-11-1952 by another petition dated 5-1-1953. in the meanwhile tekchand had also submitted a petition protesting against execution on 28-11-1952 and praying that he be heard before the orders for execution are issued. it is stated that the civil court dismissed tekchand's petition as premature and on 13-1-1953 ordered execution to issue. then again it is stated.....
Judgment:

Srinivasachari, J.

1. This case is peculiar in its nature and affords an example as to how one party can overreach the other by creating as many complications as possible by resorting to Courts of law. In respect of the property in dispute there have been proceedings in the Civil Court, in the Criminal Court and contempt proceedings in the High Court. Bereft of all the complications in the case, what we are conerned with, is a Revision Petition arising in proceedings initiated Under Section 145, Criminal P. C. One Jogendersingh filed an application before the Magistrate at Hyderabad, stating that he had purchased the Hotel situated in Mozzam-jahi Road, from one Ahmed Shariff on 15-10-195a and that the said Hotel was being run under a partnership between himself of the one part and. Tekchand and Shamdani Sharif of the other part. He also alleged that 4 persons viz., Sheik Farld, Syed Moinuddin SharifE, Syed Ahmed Sharifl and Jayantilal were trying to oust him from possession and that there was in consequence an apprehension of breach of peace.

On this application, proceedings were started by the Magistrate Under Section 145, Criminal P. C. The property was attached and taken under his supervision by the Magistrate. Four days later Tekchand who is the Revision Petitioner before us filed a petition before the Magistrate stating that the facts stated by Jogender Singh in his application were all untrue and that the attachment might be raised. He filed a supplementary application the next day stating that the petition was liable to be dismissed even on the footing that Jogender Singh was in joint possession with others. The Magistrate called upon the parties to file their statements.

When proceedings were pending in the Criminal Court contemporaneously there were pro ceedings in the City Civil Court started by one Sabir Hussain the owner of this property. This Sabir Hussain it would appear obtained an order of, eviction from the Rent Controller against his tenant Ahmed Sharif. This order of eviction became final after the High Court passed its Order of dismissal on a writ petition filed by the tenant against the order of eviction .In the order passed by the High Court, the High Court granted time to the tenant to vacate the premises up to 1-12-1952. The landlord Sabir Husain applied for execution of the eviction order when the time granted by the High Court had expired. This execution application was filed as against Ahmed Sharifl his tenant. When this application was filed an objection petition was filed by Tekchand stating that he was in possession and that he could not be ejected because he was in lawful possession by virtue of a document executed by Sabir Husain as well as Ahmed Shariff, Despite this application the Court directed delivery of possession to Sabir Husain.

2. It was at this stage that the petitioner Tekchand filed an application that Sabir Husain had obtained possession from the Civil Court fraudulently and that the Civil Court could not have executed the decree without reference to the Criminal Court when the property was under the attachment of the latter. He, therefore, moved the Criminal Court to write to the Civil Court that it might withdraw its warrant. Simultaneously Tekchand filed an application for contempt of Court as against Ahmed Shariff and Sabir Husain alleging that possession had been taken in defiance of the order of the Court. These contempt proceedings came to a close by the High Court's order that it did not think it desirable to enter into a protracted enquiry with regard to delivery of possession of this property in a summary enquiry in the contempt of court proceedings, and that such question could be more satisfactorily investigated in an appropriate proceedings.

3. Now coming to the proceedings in the Criminal Court Under Section 145, the Magistrate held that on the evidence produced by the parties it was established that Tekchand was actually in possession on the date of the order but he did not direct delivery of possession to him, for he thought that he was constrained by the order of the Civil Court handing over possession and he felt that inasmuch as possession had been handed over by an order of the Civil Court his hands were tied. It is this that has been made the ground of attack in this revision before us.

4. The sole argument of the learned advocate appearing for the petitioner is that the Magistrate having once held that Tekchand was in possession of the property on the date of the order, he should have directed delivery of possession to Tekchand and the fact that delivery of possession had been directed to be delivered by the Civil Court could not deter the Magistrate from passing an order of restitution.

5. The avowed purpose of Section 145, Criminal p, C. is to avoid the immediate breach of peace on account of dispute relating to the possession of immoveable property. Where it Is found that possession had been handed to a pasty in pur- suance of an order of a Civil Court the prerequisite for the exercise of jurisdiction unuer Section 145 by the Magistrate is absent and, therefore, the Magistrate ceases to have jurisdiction. The juridical possession based on attachment Under Section 145, Criminal P. C. ends when the' order of a competent civil court has been pronounced. It is difficult to comprehend how a Magistrate could be allowed to reagitate a dispute that had been settled by a competent court. To allow this would amount to allowing the magistrate to snap his fingers at the order of the Civil Court although his orders are always subordinated and subjected to the adjudication by the civil court.

The civil court's order in favour of a party where it has been shown that it has been carried out, would become infructuous if the Magistrate interferes with it. In the case of an order of a Civil Court of possession of a very recent date; where there is no evidence to show disturbance or change of that possession had occurred, the Magistrate is bound to respect the civil court's order and if he does not do so he would be acting without jurisdiction. The result is that I agree with the conclusion arrived at by my learned brother Siadat Ali Khan, J. that this revision should be dismissed.

Siadatali Khan, J.

6. This is revision petition No. 1293/6 of 1953-54. The Additional Court, City Criminal Courts, by judgment dated 5-10-1953, held that the revision-petitioner, Tekchand, cannot get possession of the hotel but that the moveables should be handed over to him. On revision to a Single Bench of this Court the case was referred to the Division Bench by order dated 24-2-1954. The Division Bench, by order dated 20-8-1954, referred it to this Full Bench. We have heard the arguments of the learned advocate Shri B. N. Chobey, for the revision-petitioner and that of the learned advocates, Shri Ramaswami Aiyengar, Shri Govinddas Mehta and Shri Rashid Siddife Husain for the respondents.

7. The facts alleged are that the respondent, Syed Sabir Husain, was the owner of the building of the hotel under consideration; that he let it on rent to one Ahmed Shareef who opened a hotel in it; that several disputes arose between Sabir Husain and Ahmed Shareef and the former obtained an eviction order from the Rent Controller; that in a writ petition a Division Bench of this Court directed on 22-9-1952 that no interference with the order of the Rent Controller was necessary and that Ahmed Shareef should vacate the building on 1-12-1952.

Events, it appears, moved rather rapidly after this order. It is alleged that Ahmed Shareef entered into an agreement with the revision-petitioner, Tekchand, by which he handed over the possession of the hotel to Tekchand. It is alleged further that simultaneously TektJhand entered into an agreement with Sabir Husain that if Tekchand would take possession of the hotel from Ahmed Shareef before 1-12-1952 Sabir Husain would have no objection. This agreement with Sabir Husain is disputed and Sabir Husain totally denies it. He considers the agreement between Ahmed Shareef and Tekchand a mere device to defeat the order of eviction of the Rent Controller, which was confirmed by a Division Bench of this Court and by which 1-12-1952 was fixed as the dead line for giving possession to him. He considered it as a contempt of the order of this Court and filed a petition in this regard. A Division Bench of this Court, however, held that there was no contempt and that Sabir Husain may take out execution proceeding in respect of the order of the Rent Controller or file a complaint that the alleged deed of agreement between him and Tekchand was a forgery.

Another litigation was started by one Jogender-singh, who is variously described as a chowkidar or a partner of Tekchand. He filed a petition for breach of peace against four persons including Ahmed Shareef. In this proceeding the City Criminal Court attached the hotel on 20-12-1952 and on 9-1-1953 entrusted the management of the hotel to one Shankersher after taking a security of Rs. 12,000. Meanwhile Sabir Husain filed in the City Civil Court an execution petition to enforce the decree of the Rent Controller, The IV Court, City Civil Courts, passed on 13-1-1953 an order that the possession of the building should be handed over to Sabir Husain, The order was promptly executed and Sabir Husain took possession of the building of the hotel at 3-30 p. m. the same day from one Abdul Gani who is said to have been in possession then. Tekchand filed the same day a petition for stay and a stay was granted but the plaintiff reported that possession was already given to Sabir Husain.

In the breach of peace proceeding the City Criminal Court held on 5-10-1953 that Tekchand took over the possession of the building from Ahmed Shareef fully knowing that he was a mere tenant and that there was an order of the Rent Controller for his ejection which has been confirmed by a Division Bench of this Court and a date, namely, 1-12-1952 was fixed for Ahmed Shareef's vacating the building; that in the circumstances the court held that it was unable to interfere with the order of the civil court which has been executed on 13-1-1953.

8. It should be clearly noted that the revision petition before us is from the order of the City Criminal court. The order of the City Civil Court regarding handing over of possession in pursuance of the Rent Controller's order has also been contested in another revision petition which is, however, pending and has not come up for decision to this Bench.

9. It is not necessary to refer to the various authorities cited by the learned advocates of the parties. One or two things stand out clearly from their arguments. The first is that Ahmed Shareef did not give possession on 1-12-1952 as was directed by a Division Bench. Instead he transferred possession under a lease to Tekchand some time before that. As Tekchand was a party to the contempt proceedings started by Sabir Husain, he knew full-well that the duration of Ahmed Shareef's interest was at the most upto 1-12-52 only and still he took the lease from Ahmed Shareef. The only conclusion, therefore, is that he stepped into the shoes of Ahmed Shareef and had aenuired no more rights than those of Ahmed Shavcrf. Thin Is the foundation of the decision of the criminal court.

The question is whether the decision is correct. It was argued that it was not, as Tekchand hatl undergone heavy expenses after taking the lease and he would not have done that unless he had also come to terms with the owner; and, therefore, the City Criminal Court should have gone into Tekchand's agreement of lease with Sabir Husain. This was stated to be for a period of 5 years and at an enhanced rent of Rs. 350 per month.

It was argued further the Hotel was in custodia legis and the criminal court should not have allowed its own dispossession without concluding the inquiry itself, and as it had found clearly that Tekchand was in possession for 2 months before the date of the preliminary order, it should have directed that possession should be restored to him.

Are these contentions correct and sufficient to invoke our revisionary jurisdiction? We carefully considered them. It would appear to us that In a consideration of them the nature of the breach of peace proceedings should not be lost sight of. The only concern of the court in such proceedings is whether there is a likelihood of breach of peace. It has been held in several cases, for Instance, in the Pull Bench (five Judges) case of this Court, - '5 Nazaer-e-Osmania 240 (A)', that, for jurisdiction Under Section 145, it is not enough if there is 8t dispute only, but there must also be a likelihood of breach of peace. If there is no likelihood of breach of peace there remains no jurisdiction Under Section 145. The dispute alone is not enough to give jurisdiction. Similar is the finding in the judgment of Mr. Justice Rantein in the Full Bench (Five Judges) case of - 'Agni Kumar Das v. Mantazuddin' AIR 1928 Cal 610 (FB) (B). Tekchand himself stated in his application dated 23-12-53 that there was no likelihood of breach of peace. AH this appears to be conclusive of there being no likelihood of breach of peace. Hence, no jurisdiction was left in the criminal court to inquire into the allegations of Tekchand that he had incurred huge expenses and taken a lease from Sabir Husain himself. Had it done so, it would clearly have gone out of its province.

There remains the point that possession should have been given to Tekchand as his possession was found. It is for consideration whether when the jurisdiction had ended, such order could have been passed. The cases cited above do not. lend support to the view that possession can be found after jurisdiction is at an end. The only order that can be passed is that the status quo ante be maintained or the land should remain in court custody; (vide - 'State v. Sheoratan Singh' AIR 1951 Nag 201 (C); - 'Mahalakshmi v. Subbarayudu' AIR 1923 Mad 472 (1) (D) and - 'Suryanarayana v. Ankineed Prasad' AIR 1924 Mad 795 (E)). Hence we do not see how our revisionary jurisdiction is invoked when we find that after recording the finding that there was no dispute the learned Magistrate took notice of the fact that the possession has been delivered to Sabir Husain and refrained from proceeding further. The Calcutta case cited above has on page 616, col. 2 (sic) that if on a given date plaintiff is out in possession by the civil court. however inefficiently or irregularly, the Magistrate need not go any further.

There remains the point of the custodia legis or the contact of courts. The principle is that generally a criminal court is bound to find facts for itself. We concede this principle. In this case, however, though prima facie it appears that the criminal court has been influenced by the judgment of the City Civil Court, still, a careful perusal of the criminal court's judgment will show that it has found facts for itself. The finding is distinct that Tekehand toolc the lease from Ahmed Shareef after knowing full well that Ahmed Shareef had to vacate possession on 1-12-1952. In the circumstances it is evident that the criminal court did not consider that its custodia legis should have continued and, therefore, no question of conflict of courts or the property being in custodia legis can really arise.

10. For all the above reasons the revision petition is dismissed.

Palnitkar, J.

11. This case was referred by the learned Single Judge to a Division Bench. The Division Bench in turn referred the whole case to this Full Bench. While referring this case to the Full Bench, the Division Bench posed a question-

when a criminal court had taken into custody the property in dispute in proceedings Under Section 145, Criminal P. C, can the same property be taken in execution of a civil court decree without taking out execution against the criminal court and when parties to both the proceedings differed.

It was stated that the question is one of conflict of courts and their judgments.

12. The facts of this case may be briefly narrated. On 18-12-1952 one Jogender Singh filed a petition in the lower court Under Section 145, Criminal P. C, stating that breach of peace was apprehended and that he v/as in possession of the property on the basis of a partnership deed dated 30-10-1952. In this petition Shaik Fareed, Syed Moin Sheriff, Syed Ahmed Sheriff and Jeetlal were made respondents. The property was taken over into the custody of the criminal court pending the decision of the case.

Tekchand the present petitioner before us, made a petition in the lower court to be made a party stating that he was in actual possession of the property in dispute on the date of the preliminary order. He staled that he had taken the premises on rent from, its owner Sabir Hus-sain per his guardian and paid considerable amount of rent in advance. I-Is also .stated that with the consent of the said Sa'oir Hussain he entered into the possession of the property having taken it over from Ahmed Sheriff who was a tenant holding over. The lower court enquired into the various allegations and came to the conclusion that the possession of Tekchand, the petitioner before us, was proved within two months from the date of the preliminary order; it further held that though this possession was proved the court cannot restore possession of the disputed property to him inasmuch as Sabir Hussain respondent, had obtained possession of the same in execution of decree against Ahmed Sheriff. The lower court, however, restored possession of the moveable property to petitioner Tekchand.

13. It is against the above order that this revision petition was preferred by Tekchand. The facts as stated above are fairly simple, but the case has been complicated on account of prior litigation between the parties. It is clear that in proceedings before the Rent Controller Sabir Hussain had obtained a decree for eviction against Ahmed Sheriff who was the tenant. A writ petition filed by Ahmed Sheriff in the High Court against the order of the appellate court in the Rent Control Proceedings was dismissed by the High Court on 22-9-1952, The High Court, however, granted time to Ahmed Sheriff to vacate the premises till 1-12-1952. It is contended that after the above order, Tekchand took the property on rent from Sabir Hussain and as Ahmed Sheriff was in actual possession and he had time till 1-12-1952, Tekchand persuaded Ahmed Sheriff to deliver possession to him in lieu of payment of some cash and that this was done with the knowledge of the owner Sabir Hussain. Thus, the contention of Tekchand was that he actually took the premises on rent from the owner Sabir Hussain and the transaction between him and Ahmed Sheriff was a subsidiary matter so that he could get into the premises by 1-12-1952. It is further alleged that Sabir Hussain filed a contempt petition on 10-11-1952 in the High Court. This petition was dismissed on 4-12-1952.

14. It is stated that on 15-12-1952 Sabir Hussain filed an execution petition in the City Civil Court against Ahmed Sheriff while on the criminal side Jogender Singh, petitioner, filed a petition on 18-12-1952 Under Section 145, Criminal P. C.

15. For the purposes of this criminal revision we have to see first of all what is the date of the preliminary order. It is clear from the proceedings of the lower court that this date is 19-12-1952, when that court came to the conclusion that there was likelihood of the breach of peace and it ordered notices to be issued. We have to see who was in possession on the said date. The lower court has as stated above held that Tekchand was in possession of the disputed property on that date. This is also clear from the petition of Sabir Hussain dated 10-11-52 in which it is stated that on 5-11-52 Ahmed Sheriff delivered possession of the suit premises to Tekchand. This petition was filed in the High Court in connection with some other matter and a copy of which has been Sled here. Shri Ramaswarni Aiyyar.gar, the learned advocate for Sabir Hus-spin, contended that this did not amount to an admission that possession was given on 5-11-52 to Tekcham in view of the further sentence that the sign board in the name of the Fnrorietor was changed from Syed Ahmed Sheriff to Tekchand.

We need not discuss in detail the implication of the above fact mentioned in the petition. It is sufficient for our purpose to note that the lower court has held that Tekchand was in possession on the date of the preliminary order. Therefore in the ordinary course, in proceedings Under Section 145, Criminal P. c, the possession which was taken over by the criminal court ought to have been restored by that court to Tekchand.

16. Now we will examine the reasons of the lower court for not following the ordinary rule in view of the proceedings pending before the civil court. It is clear from the record, that on 28-11-1952 Ahmed Sheriff filed a petition in the City Civil Court that he had delivered possession of the disputed property to Tekchand at the instance of the owner Sabir Hussain and therefore the court should record that fact and declare that the decree was executed out of court. After this, it is stated, that on 15-12-1952 an execution petition was filed by Sabir Hussain against Ahmed Sheriff and that Ahmed Sheriff withdrew his petition dated 28-11-1952 by another petition dated 5-1-1953. In the meanwhile Tekchand had also submitted a petition protesting against execution on 28-11-1952 and praying that he be heard before the orders for execution are issued. It is stated that the civil court dismissed Tekchand's petition as premature and on 13-1-1953 ordered execution to issue. Then again it is stated that a stay order was issued on the very date, but before that could reach the bailiff, the bailiff submitted a report that he had handed over the property to the decree-holder Sabir Hussain. It is contended that the civil court's proceedings were not in order and the said court ought to have stayed the petition for execution.

17. What we have to see and decide is how far and to what extent the possession of the disputed property which was with the criminal court could have been disturbed without any reference to it by the order of the civil court.

18. The point argued is that the lower court which was in custodia legis of the property could not be considered to have been dispossessed because the bailiff made a report of possession in the presence of Abdul Nabi. In such cases, where property is in the possession of a criminal court the proper method is to issue a warrant of execution in the name of the criminal court directing that court to deliver possession. No such steps were taken by the decree-holder in this case. However, no serious injustice appears to have been done as the aggrieved party has a remedy by way of civil suit. Therefore, though there is some irregularity in the proceedings of the lower court, I do not wish to interfere in revision.

19. This revision petition is therefore dismissed.


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