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Chokhey Lal Moti Ram and ors. Vs. Babulal Behari Lal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 1812 of 1958
Judge
Reported inAIR1960All599; 1960CriLJ1279
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 146(ID), 146(IE) and 146(1)
AppellantChokhey Lal Moti Ram and ors.
RespondentBabulal Behari Lal
Appellant AdvocateB.N. Asthana, Adv.
Respondent AdvocateM.B. Lal, Adv.
DispositionAppeal dismissed
Excerpt:
criminal - challenge the findings - section 146(1) of criminal procedure code, 1898 - dispute of property of more than rs. 10000/- - proprietary right is not in question but who was in possession - challenge by regular suit and not by writ petition. - - it was further contended that the munsif has failed to consider the effect of the affidavit and the plan filed on behalf of the petitioners and that the munsif acted with material irregularity in the exercise of his jurisdiction......np. per annum from the collector agra. thereafter he constructed the aforesaid buildings on this land. petitioners nos. 1 and 2, sons of moti ram, and the other petitioners are members of a joint family being the grandsons and nephews. two of the buildings had been rented out to mohana and narain. an application was moved by babu lal before the district board, agra to 'the effect that this plot of land had been taken by mohana and naraina on lease and babulal being the brother of mohana and naraina was also entitled to 1/3rd share. this application was purported to have been moved when hukmi ram, petitioner no. 2, served a notice of demand of arrears of rent on mohana. the said application was pending in the court of the district judge when this writ petition was filed in the meantime......
Judgment:
ORDER

V.D. Bhargava, J.

1. This writ petition has been filed on behalf of seven persons who claim that they are owners of a plot of land, No. 925, measuring about 5 biswas in area. On this plot of land there are twelve separate buildings and the valuation of the buildings is about Rs. 10,000/-. Moti Ram, father of petitioners Nos. 1 and 2, obtained lease of the aforesaid plot of land for 33 years at the rate of Rs. 3.50 nP. per annum from the Collector Agra. Thereafter he constructed the aforesaid buildings on this land. Petitioners Nos. 1 and 2, sons of Moti Ram, and the other petitioners are members of a joint family being the grandsons and nephews. Two of the buildings had been rented out to Mohana and Narain. An application was moved by Babu Lal before the District Board, Agra to 'the effect that this plot of land had been taken by Mohana and Naraina on lease and Babulal being the brother of Mohana and Naraina was also entitled to 1/3rd share.

This application was purported to have been moved when Hukmi Ram, petitioner No. 2, served a notice of demand of arrears of rent on Mohana. The said application was pending in the court of the District Judge when this writ petition was filed in the meantime. On 11-6-56 criminal proceedings were taken under Section 145 in the court of the City Magistrate, Agra on the allegation that on 8-6-56 the petitioners had damaged the foundation of the building laid by Babu Lal opposite party in his l/3rd share. A preliminary order of attachment was made and on 21-10-1956 an order was passed under Section 145, Cr. P. C. By this order the Magistrate had held that each of the two parties was entitled to certain houses on the land in dispute.

2. As regards possession, the Magistrate came to the conclusion that none of the parties had been able to prove substantially his claim over the land and the Magistrate was unable to come to a satisfactory conclusion about possession. Therefore the land was attached under Section 146 Cr. P. C., and a reference was made to the Munsif., Agra for a finding whether any and which of the parties was in possession. The reference was not made in the proper form and, therefore, there was a revision in which this order was set aside. When the case came before the Magistrate he passed an order of reference under Section 146 to the Munsif. According to the petitioners this order was not in accordance with the mandatory provisions of Section 146 (1).

3. Before the Munsif affidavits were filed by by the parties and the Munsif gave a finding against the petitioners and held that Babu Lal had been an possession of the land in dispute when it was attached under Section 146, Cr. P. C. The petitioners, therefore, have come to this Court and challenged the order of the Munsif on the ground that he had no jurisdiction, because the property in dispute was worth more than Rs. 10,000/ and the reference which was made by the City Magistrate was in derogation of Section 146(1) Cr. P. C. It was further contended that the Munsif has failed to consider the effect of the affidavit and the plan filed on behalf of the petitioners and that the Munsif acted with material irregularity in the exercise of his jurisdiction. Therefore, it was prayed that a writ in the nature of certiorari or any other suitable writ, order, or direction quashing the order of the Munsif, Agra dated 26-5-1958 be issued by this Court.

4. The first ground on which this petition is not entertainable is that under Sub-section (1-E) of Section 146 an order under Section 146 is subject to any subsequent decision by a Court of competent jurisdiction. The petitioners have an alternate remedy by way of a regular suit where the order of the Munsif can be challenged and it is only by that manner that the orders under Section 146 should be challenged. An order under Section 146 has been made final, subject to decision in a regular suit.

5. It is clear that neither there can be art appeal nor a revision nor a review against order passed under Section 146 Cr. P. C., which means that the Legislature intended these orders to be final. If the Legislature had made those orders final, I do not think that the petitioners are entitled to challenge that by means of a writ petition.

6. AS regards the question of jurisdiction of the Munsif and his having tried the case of a property of Rs. 10,000/, this question was not agitated before the Munsif. The petitioners tried their luck before the Munsif. If they thought that the Munsif had no jurisdiction, they should have taken objection before the Munsif and prayed, when the case was being referred to the Munsif by the Magistrate, that it should be sent to the Civil Judge. Having once taken that chance before the Munsif they cannot be allowed now to raise that question for the first time in Writ petition.

7. So far as that question of jurisdiction is concerned, whether it is a fact or mere ipse dixit of the petitioners that the property is worth Rs. 10,000/, cannot be said. Even if the dispute was concerning a property worth more than Rs. 10,000/ a reference could be made to the Munsif, because it was not proprietary right of the property which was involved in the dispute; but the sole question, that was referred to the civil Court was as to who was in possession at a particular time. That relief itself will not be deemed a relief on the value of the property. In the circumstances there is no force in this argument.

8. Learned counsel for the petitioner has further argued that the Munsif had no jurisdiction to decide about the title of the property in dispute which he had done nor had he any jurisdiction to refuse to consider the plan. As regard's, the first portion of this argument, that point was not taken as a ground o attack in the petition and cannot be allowed to be taken at this stage. Besides, from the judgment of the Munsif it appears that he had decided on the evidence, which was filed by the parties. The judgment given by the Munsif under Section 146, Cr. P. C., is a judgment in summary proceeding and the munsif is not required to write a very elaborate judgment. In the present case, as a matter of fact, the Munsif has given a long judgment extending over five foolscape pages. Under the circumstances I do not think that the criticism levelled against the Munsif is justified.

9. Apart from, this fact, if the order of the Munsif is asked to be quashed, the Munsif was a necessary party to the writ petition. He has not been made a party and, therefore, any order against the Munsif quashing his order behind his back cannot be obtained.

10. Accordingly, the writ petition fails and is dismissed with costs.


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