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Bua Bi W/O Syed Ali and anr. Vs. Khadija Begum - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1953CriLJ1630
AppellantBua Bi W/O Syed Ali and anr.
RespondentKhadija Begum
Excerpt:
- - this witness malla reddy has deposed further that mussalmans, meaning the revision-petitioners, took possession of the land a year or two before he deposed, which means quite clearly many months prior to the preliminary order. it is evident that this may very well be after the finding of the magistrate on a petition or a report to him that there is a likelihood of breach of peace......has deposed that he had initiated proceedings for breach of peace in which he had stated that the land in dispute was in possession of the revision-petitioners; that this was in 1356f. & after the sale of khadiji begum; that this shows that the sale of khadija begum was fictitious, for if the sale was genuine, jafer ali khan would have felt no necessity & would not have initiated the breach of peace proceedings; that, however, this may be, the point is clear that the predecessor-in-title of khadija begum has admitted the possession of the revision-petitioners even in 1356f; that the learned magistrate himself has held that there was no likelihood of breach of peace and that,-therefore, he should have determined the proceedings forthwith and directed that the land should be restored to.....
Judgment:
ORDER

Siadatali Khan, J.

1. This is a revision petition in a breach of peace case. The IVth Court, City Criminal Court, by judgment dated 24.9.1951 directed that the lands be kept in the custody of the Court till the parties get a decision from the civil Court. Hence this revision petition-filed by Bua Bi and Kandmir. I have heard the arguments of the learned advocates of the parties.

2. The learned advocate for the revision, petitioners argued that possession of the revision-petitioners has been admitted by the respondent, Khadija Begum. It was also admitted in the Police report and has been deposed to by several witnesses of the respondent; for instance Malla Reddy, the village officer, who has deposed that for the last year or two Mussalmans had come on the land and taken possession of it. He argued further that this is what, the predecessors-in-title and brother-in-law of the respondent, Khadija Begum, Jafer Ali Khan, also has deposed that he had initiated proceedings for breach of peace in which he had stated that the land in dispute was in possession of the revision-petitioners; that this was in 1356F. & after the sale of Khadiji Begum; that this shows that the sale of Khadija Begum was fictitious, for if the sale was genuine, Jafer Ali Khan would have felt no necessity & would not have initiated the breach of peace proceedings; that, however, this may be, the point is clear that the predecessor-in-title of Khadija Begum has admitted the possession of the revision-petitioners even in 1356F; that the learned Magistrate himself has held that there was no likelihood of breach of peace and that,-therefore, he should have determined the proceedings forthwith and directed that the land should be restored to the party from whose, possession it was taken and that as already stated above the land was taken from the possession of the revision-petitioners as is admitted in the Police report and in the panchanama prepared by the bailiff.

3. In reply the learned advocate for the respondent, Khadija Begum, Raja Bahadur Biseshwarnath argued that the possession of the revision-petitioners over the whole of the land is not proved; that as laid down in - Parmeshwar Din v. Sheo Mooraf : AIR1952All918 , possession over the whole land is to be seen; that the respondent had posted a servant Abbas Ali on the land in dispute and-he remained there all the while; that there is a receipt showing that the predecessor-in-title of the respondent. Jaffer Ali Khan, Was delivered possession of the land in dispute on 1st Azur 1355F, that the servant mentioned above was posted from 1355F; that a careful perusal of para. (1) of the written statement will show that the respondent did not admit therein the possession of the revision-petitioners but has only stated that the revision-petitioners taking advantage of the disturbed conditions of the time have begun to meddle unlawfully with the land in dispute; that this does not mean that they took possession of the land in dispute; that it is true that the bailiff has not mentioned that there was any hut in occupation of the servant of the respondent at the time of taking the land in the custody of the Court; but that does not mean that there was no hut as this fact has been deposed to not only by the respondent herself but by Jaffer Ali Khan and several other witnesses.

The learned advocate argued further that it is not true to say that the learned Magistrate has found that there was no likelihood of, breach of peace; that he has expressly found that there was a likelihood of breach of peace when he initiated proceedings under Section 145, Indian Criminal Procedure Code; that the revision-petitioners Bua Bi and Kundmir themselves have deposed that on behalf of the respondent Sikhs were brought to aid in the maintaining of her possession; that this is also deposed to by the revision petitioners' own brother, Syed Mohmood who has deposed that there was a likelihood of breach of peace and, therefore, he filed a petition to the Police; and that Jafar Ali Khan brought Sikhs with him to take possession of the land in dispute. All this will show that there was a likelihood of breach of peace and, therefore, it is utterly incorrect to say that the Magistrate has found that there was no likelihood of breach of peace.

4. I have carefully considered the above arguments and it is evident that as far as possession at the time of the preliminary order or two months prior to it is concerned, there is no doubt that it was with the revision-petitioners. The Panchanama prepared by, the bailiff expressly states that the land was taken from the possession of the revision-petitioners and it has been proved by depositions of revision-petitioners' witnesses. The allegation of the respondent that she had posted a servant there is deposed to by Jafar Ali Khan and Abbas Ali, respondent's witnesses 3 and 4; but it should be noted that Malla Reddy, respondent's witness 3 who is not only a village official but also owns and cultivates lands adjacent to the survey numbers 108 and 109, now 'in dispute, states that he never saw any servant of the respondent posted on the land in dispute. I need not repeat that the bailiff's report also does not mention that there was any hut of Abbas Ali servant of the respondent, and what is more, Murtuza Ali Khan, the first witness adduced on behalf of the respondent has expressly stated that in the very hut built by the respondent the revision-petitioners entered and took possession. This witness Malla Reddy has deposed further that Mussalmans, meaning the revision-petitioners, took possession of the land a year or two before he deposed, which means quite clearly many months prior to the preliminary order. The learned advocate argued that it was forcible possession and. therefore, could not be taken into account. There is no record to bear him out that Abbas Ali was thrown out forcibly.

There remains the argument that the learned Magistrate has not found that there was no likelihood of breach of peace. In my opinion even a cursory perusal of the judgment under revision will show that he has so found it at numerous places. The argument that when once the Magistrate finds that there is likelihood of breach of peace, he cannot after the filing of written statements, and evidence of the parties find further that there is no likelihood of breach of peace, is untenable. Anand Rao v. Maruti 6 Nazaer-e-Osmania 100 (B), is clear authority on the point that when after the evidence of the parties is closed, the Magistrate is of the opinion that there is no likelihood of breach of peace, he should forthwith determine the proceedings and that, the continuance of the proceedings to find the possession of a party is without jurisdiction for the reason that, when there is no likelihood of breach of peace, there is no jurisdiction left and that it is also without jurisdiction to take evidence of actual possession. The same question was-also thrashed in - Anand Kishen v Talukdar, Matpalle 5 Nazaer-a-Osmania 240 (C), which, is a Full Bench of 5 Judges case.

There it has been held that:

Where it appears that there is no likelihood of breach or peace, the proceedings shall be terminated; that the Magistrate has so determined the proceedings but it is urged that under Section 148, Sub-section 4, Hyderabad Criminal Procedure Code, if there is a dispute but no likelihood of breach of peace3 the enquiry should still continue and possession of either party shall be determined. This has been held in - 22 Deccan L.R. 209 (D) - 14 Deccan L.R. 79 (E); - 14 Deccan L.R. 108 (F), and - 25 Deccan L.R. 264 (G). But this is not correct for in Section 148, Sub-section 1 the dispute leading to a breach of peace is qualified by a dispute about land and it is only when there are both these disputes that the Magistrate has jurisdiction. Hence, if there is-a mere dispute over the land and it is not likely to lead to a breach of peace, there is. no jurisdiction.

This is as clear as anything can be and, therefore, as soon as it appears whether from the written statements of the parties or the evidence adduced by them that, there is no likelihood of breach of peace, the jurisdiction of the Magistrate comes to an end. It is evident that this may very well be after the finding of the Magistrate on a petition or a report to him that there is a likelihood of breach of peace. Hence I do not agree with the argument of the learned advocate for the respondent that the learned Magistrate has not found that there is no likelihood of breach of peace or he could not have found that, because he had once found that there was a likelihood of breach of peace and initiated legal proceedings on it. Thus, as it is evident from the judgment under revision that the Magistrate has expressly found in so many places that there is no likelihood of breach of peace, he should have determined and closed the proceedings and should have only directed the restoration of the land in dispute to the party from whose possession it was taken. Hence, in my opinion his order that the land should remain in the Court's custody pending decision of a Civil Court is without jurisdiction on the authority of the abovementioned cases and also on the authority of Sub-section 5 of Section 148, Hyderabad Criminal Procedure Code or the corresponding Sub-section 5 of Section 145, Indian Criminal Procedure Code. Both these sections also lay down either expressly (Section 148) or by necessary implication (Section 145) the same proposition that when there is no dispute, the proceedings-shall terminate and the Magistrate on the evidence adduced should direct restoration of the property in dispute to the party from whose possession it was taken. Thus I allow this revision petition and direct restoration of the land in dispute to the possession of the revision-petitioners as it is on record that the land in dispute was taken from their possession. Copy in the other file. Revision allowed.


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