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Mst. Rabba Bibi and anr. Vs. Sub-divisional Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1966CriLJ820
AppellantMst. Rabba Bibi and anr.
RespondentSub-divisional Officer and ors.
Excerpt:
- .....as sub-tenant. he died in 1955 leaving behind the aforesaid son mohd. mustafa and widow, smt. rabba bibi and the daughter who is married to firoz ahmad petitioner no. 2, after the demise of masih uddin, rabba bibi's name was recorded as sub-tenant. raj narain moved an application for correction of the records on the ground that on the demise of masih uddin the sub-tenancy was surrendered. this was denied by rabba bibi but her name was directed to be removed. thereupon rabba bibi filed an appeal which was allowed on the 22nd of june 1959. in between raj narain having applied under section 145 of the cri. p.c. an attachment was ordered on the 21st november, 1956.the sub-divisional magistrate (hereinafter referred to as the s.d.m.) did not find it possible to decide the dispute himself.....
Judgment:
ORDER

S.C. Manchanda, J.

1. This is an application under Article 227 of the Constitution by Rabba Babba Bibi, widow of Masih Uddin and Firoz Ahmad the son-in-law of Masih Uddin. The relief sought is for the quashing of the orders of the Munsif, West Allahabad dated the 19th May 1959, the order of the Sub-Divisional Officer, Chail dated the 13th August 1963 and the order dated the 13th of January 1964 passed by the Second Temporary Civil and Sessions Judge, Allahabad.

2. The facts leading up to this writ petition are involved and litigation between the parties has been protracted. A further complication has been that Mohd. Mustafa, the son of Masih Uddin, the original sub-tenant now opposite party No. 4 is in service in Pakistan. Raj Narain and Swamp Narain two brothers were tenants in chief. Masih Uddin was recorded as sub-tenant. He died in 1955 leaving behind the aforesaid son Mohd. Mustafa and widow, Smt. Rabba Bibi and the daughter who is married to Firoz Ahmad petitioner No. 2, After the demise of Masih Uddin, Rabba Bibi's name was recorded as sub-tenant. Raj Narain moved an application for correction of the records on the ground that on the demise of Masih Uddin the sub-tenancy was surrendered. This was denied by Rabba Bibi but her name was directed to be removed. Thereupon Rabba Bibi filed an appeal which was allowed on the 22nd of June 1959. In between Raj Narain having applied under Section 145 of the Cri. P.C. an attachment was ordered on the 21st November, 1956.

The Sub-Divisional Magistrate (hereinafter referred to as the S.D.M.) did not find it possible to decide the dispute himself and therefore the matter under Section 146, Cri. P.C. was transferred to the Munsif, West Allahabad by his referring order dated the 24th July, 1957. He had by that time recorded the statements and other evidence and the record of the proceedings was forwarded to the said Munsif who was required to decide the question under Section 146 of the Cri. P.C. The Munsif fixed the 18th of May 1958 for recording the evidence but that being a Sunday it was taken up on the 19th May 1958. Raj Narain was absent but Rabba Bibi was present. The Munsif fixed the 2nd July, 1958 for delivering its finding under Section 146, In the meanwhile, however, an application was moved by Raj Narain saying that the was misinformed of the date, Upon this application on the 28th May 1958, the Munsif passed the following order:

Issue Notice. Stay delivery of finding in the meantime. Steps by the 7.7.1958.

The Munsif, however, forgot the existence of this stay order and proceeded on the 2nd of July, 1958, to give his finding under Section 146, Cri. P.C. which was in favour of Smt. Rabba Bibi in the absence of any contest by Raj Narain and she was held to be in actual possession during the relevant period. It was further ordered that the record of the case be returned to the court concerned with the above finding. The parties appeared there on the 23rd July 1958 and that order was signed1 and dated and it became final so far as the-Munsif was concerned.

3. Thereafter when the attention of the Munsif was drawn to the fact of his own stay order he reviewed his order and set it aside on the 13th January 1959 and went on to pass another order dated the 15th of May, 1959 holding that Raj Narain was in possession of the land in dispute on the date of attachment. The parties were directed to appear before the S.D.M. on the 30th May, 1959. The S.D.M. refused to accept the second finding as, according to him, the Munsif had no jurisdiction to review or revise the finding given earlier and he by his order dated 20.1.1961 under Section 145, Cri. P.C. in confirmity with the first finding of the Munsif declared Smt. Rabba Bibi to be in possession.

4. While Section 145, Cri P.C. proceedings were going on Mohd. Mustafa Bibi and Smt. Rabba Bibi filed a suit for a declaration in the revenue court that Mohd. Mustafa was the sub-tenant and failing that, the widow, Smt. Rabba Bibi. Thereupon an appeal was filed before the Additional Commissioner. While this appeal was pending a compromise (Annexure 1) dated the 26th September 1961, was entered into between Mohd. Mustafa and Raj Narain whereby Raj Narain recognised Mohd. Mustafa alone as sub-tenant of the land in suit on payment of certain dues and after fulfilment of certain conditions. As Raj Narain's brother had not joined in this compromise the Additional Commissioner disposed of the appeal also on its merits and he granted a declaration to Mohd. Mustafa as sub-tenant of the land in dispute by his order dated 30th September, 1961. At this stage it is necessary to go back to Section 145, Cri. P.C. proceedings. Against the order of the S.D.M. dated the 20th January, 1961 a revision was taken to the Sessions Judge by Raj Narain. On the 28th of September, 1961, i.e., three days prior to the aforesaid order of the Additional Commissioner and two days after the said compromise, the Sessions Judge made a reference to the High Court recommending that the S.D.M. could not ignore the second finding of the Munsif and was bound to give effect to it. Nobody was present when the reference was heard and the Hon'ble Mr. Justice Dwivedi accepted the reference and directed the S.D.M. to make an order in confirmity with the second finding of the Munsif.

5. When the matter went back to the S.D.M. an application was moved by Smt. Rabba Bibi that there was now no danger of the breach of the peace as the matter had been compromised between Raj Narain and her son Mohd. Mustafa But the S.D.M. felt himself bound by the order of this Court and held that Raj Narain was in possession in accordance with the second finding of the Munsif. He merely disposed of the application of Smt. Rabba Bibi wherein it was stated that there was no danger of the breach of the peace by saying that it has 'got no force and is rejected'. This order was passed on the 13th August 1963. Against that order Rabba Bibi and Firoz Ahmad filed a revision which was dismissed on the 13th January, 1961.

6. The present application under Article 227 of the Constitution was filed on the 14th February, 1964.

7. The main question that has to be considered in this case is as to whether the Munsif had no jurisdiction to review and set aside his finding dated the 2nd July 1958, even though that finding was given under a mistake of fact inasmuch as he himself had passed an order staying his hands from giving that finding If he had no jurisdiction to set aside that ex parte order for any reason whatsoever, then it must necessarily follow that the subsequent order dated the 15th of May, 1959 could not have been passed and would be without jurisdiction. For this proposition there is the clear provision of Section 146(1-D) which reads:

146(1-D) No appeal shall lie from any finding of the Civil Court given on a reference under this section nor shall any review or revision of any such finding be allowed.

The provision is mandatory and review or revision of such a finding once given is totally barred. This question has come up for consideration before this Court in two cases. In Taashuq Hussain v. State : AIR1959All568 it was laid down that the provisions of Section 146(1-D) mean not only that there can be no direct attack on the finding of the Civil Court through an appeal or an application for review or revision but also that there can be no indirect or collateral attack. Similarly in Badri Nath Pandey v. U.P. State : AIR1965All127 it was laid down that the finding of the Civil Court was not open to review and no revision lay against the order of the Magistrate passed in confirmity with the finding of the Civil Judge. A Full Bench of the Madras High Court has taken the view that the provisions of Order 9, Rule 13 of the C.P.C. cannot be applied to a reference proceeding under Section 146, Cri. P.C. before a Civil Court. See Periyakaruppa Thevar v. Vellai Thevar : AIR1963Mad338 .

8. It would follow that the procedure to be followed by the Civil Court under Section 146, Cri. P.C. is just what is contained in Section 146 itself and it is not possible the enlarge the scope of that procedure by resorting to the general provisions of the Civil Procedure Code. Therefore once the Munsif had given his finding however inadvertently, there was no power left in him to review that order nor could a revision have been filed. That being the legal position there is no alternative, however reluctant I might be but to hold that the subsequent finding given was without jurisdiction. The proper remedy for the opposite party was to have moved this Court under Article 227 of the Constitution and to obtain a direction for the setting aside of the inadvertent first finding which was given by the Munsif. Until that finding has not been set aside by a competent Court the Munsif himself had no jurisdiction to proceed to give a second finding.

9. The subsequent reference made by the Civil and Sessions Judge and the order accepting the recommendation do not in any way stand in the way of determining the question which has arisen in the present proceedings. In the reference that was made to this Court by the Civil and Sessions Judge the only point was whether the S.D.M. was bound to pass an order in conformity with the final decision of the Munsif or was it open to him to pick and choose which of the two decisions he would follow? The question which arises in this petition as to whether the first finding of the Munsif could be set aside or not did not at all arise there in this view of the matter, the order passed under Section 145 by the S.D.M. in pursuance of the second finding of the Munsif cannot be upheld, In coming to this conclusion the question of laches and alternate remedy has been duly taken into consideration. That is not an absolute bar to the exercise of jurisdiction under Article 227 of the Constitution. The result no doubt is unfortunate, as litigation will necessarily become further protracted, but in the interest of justice it is expedient that a proper order under Section 145 be passed.

10. For the reasons given above the orders of the Munsif dated 2nd July 1958, 3rd January 1959 and 15th of May 1959 are directed to be quashed. The proceedings under Section 145 will be disposed of by the S.D.M. in accordance with law.

11. The application is accordingly allowed, but in the circumstances of the case, there will be no order as to costs. The stay order is vacated.


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