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Mt. Kulsumunnisa Vs. Rex and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1949All623; 1949CriLJ949
AppellantMt. Kulsumunnisa
RespondentRex and anr.
Excerpt:
.....him, after a thorough enquiry, was perfectly justified and is not vitiated by any error of..........application she was made a party to the proceeding, which was pending before the magistrate.5. mt. khushnudi begam appeared on 18th august 1946, and requested the court to be made a party to the proceeding. the request was granted; and she was allowed time to file a written statement, which she did on 2nd september 1946. :in her written statement she alleged that she was in possession of the property in dispute.6. it may be noted here that no objection was raised on behalf of mt. kulsumunnisa, to the application, which was made by mt. khushnudi begam.7. it appears that mt. kulsumunnisa herself filed an application, under section 145 of the code, and that application was heard along with this application,8. thereafter, the proceeding continued and the magistrate made the following.....
Judgment:
ORDER

Bhargava, J.

1. This application in revision has been filed by Mt. Kulsumunnisa against an order, dated 20th August 1948, made by the Sessions Judge of Agra, affirming an order, dated 6th May 1948, passed by a Magistrate of the First Glass at Agra, in a proceeding under Section 145, Criminal P.C.

2. On 16th June 1945, Mushtaq Ahmad made an application to the Magistrate that there was a dispute likely to cause a breach of the peace. In this application Nabi Uddin, Ghaffar Khan, Akhtar Husain and Ashfaq Husain were arrayed as opposite party. The application was sent to the police for enquiry and report; and on receipt of the police report and on being satisfied about the existence of a dispute of the nature alleged the Magistrate made an order, under Sub-section (1) of Section 145 of the Code, calling upon the parties concerned to file written statements of their respective claims with regard to actual possession of the subject in dispute.

3. It is not disputed that the order was duly served in the manner provided by the Code upon the persons concerned and a copy thereof was affixed at or near the subject of dispute. It appears that as the proceedings progressed the original parties dropped out and the real parties to the dispute appeared before the Magistrate.

4. Mt. Kulsumunnisa, the present applicant, appeared on 17th April 1945. In her application she prayed that the application filed by Mushtaq Ahmad be rejected and she be declared entitled to retain possession over the property attached by the police. On this application she was made a party to the proceeding, which was pending before the Magistrate.

5. Mt. Khushnudi Begam appeared on 18th August 1946, and requested the Court to be made a party to the proceeding. The request was granted; and she was allowed time to file a written statement, which she did on 2nd September 1946. :In her written statement she alleged that she was in possession of the property in dispute.

6. It may be noted here that no objection was raised on behalf of Mt. Kulsumunnisa, to the application, which was made by Mt. Khushnudi Begam.

7. It appears that Mt. Kulsumunnisa herself filed an application, under Section 145 of the Code, and that application was heard along with this application,

8. Thereafter, the proceeding continued and the Magistrate made the following order:

Mt. Khushnudi Begam was in possession of the land In dispute through her tenants and predecessors-in-interest from whom she had purchased. Mt. Khushnudi Begam was made a party trader orders of the Court. Against this no appeal or revision was filed. I, therefore, make a declaration in favour of Mt. Khushnudi Begam that she was in possession and her possession will be maintained on the property in dispute, unless she is evicted from Court of law. Mt. Kulsumunnisa Begam may seek remedy in civil Court if she so likes. The attached property is ordered to be released in favour of Mt. Khushnudi Begam.

9. This order, as already pointed out, was upheld by the learned Sessions Judge of Agra.

10. In this revision, the learned Counsel for the applicant, Mt. Kulsumunnisa, has contended that, after the original parties to the proceeding had dropped out, the learned Magistrate could not proceed further without making a fresh order under Sub-section (1) of Section 145, Criminal P.C. The contention has got no force. The dispute was the same, in respect of which an order under the sub-section had already been made, as the Magistrate was satisfied about the existence of that dispute, which was likely to cause a breach of the peace. The persons concerned had been 'ailed upon to file written statements of their active claims with regard to actual possession of the subject in dispute. Mt. Kulsumunnisa and Khushnudi Begam appeared on the scene and their applications made it clear to the Magistrate that they were real persons concerned in the dispute. Mt. Kulsumunnisa had already filed her written statement setting out her claim; and Mt. Khushnudi Begam was allowed time to file a written statement of her claim. These persons, who had been made parties on their own applications, were as good parties to the proceeding as the original parties.

11. The Magistrate had to hear the parties, who appeared before him in response to the notice which had been issued and published in the manner provided by the Code; he had to record the evidence produced by the parties and consider the effect of such evidence; he had to decide whether any and which of the parties was, at the date of the order under Sub-section (1) of Section 145 of the Code, in such possession of the subject in dispute; and he had to issue an order under Sub-section (6) of Section 145 of the Code. If during the progress of the enquiry, the person who had moved the Magistrate to start the proceeding, or the persons, against whom the proceedings were initiated, dropped out, and the persons really concerned in the dispute appeared before the Magistrate, the dispute on account of which an apprehension of a breach of the peace had arisen, would still be there and the Magistrate would have to make an order to prevent the same. The dispute being the same, and still subsisting, as was shown by the rival claims to possession put forward by Mt. Kulsumunnisa and Khushnudi Begam, it was not at all necessary to issue a fresh order under the said sub-section.

12. The learned Counsel for the applicant has further contended that the Magistrate had dealt with the case as if he was deciding a title suit and thereby the applicant was considerably prejudiced. It is true that the Magistrate has discussed at some length the respective claims of the parties with regard to actual possession of the subject in dispute; but that cannot adversely affect or vitiate his finding on the question of possession, which cannot be challenged in revision.

13. As the Court was satisfied about the existence of a dispute likely to cause a breach of the peace, the order made by him, after a thorough enquiry, was perfectly justified and is not vitiated by any error of law.

14. I, therefore, see no reason to interfere in revision. The application is, accordingly, dismissed.


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