Lal Mohammad vs Saira Begam

S.I. Jafri, J.—This application u/s 482 Code of Criminal Procedure has been preferred by Lal Mohammad applicant praying herein that the order dated 28-10-1987 passed by Sub-Divisional Magistrate Deoria, consequent on the application made by Smt. Saira Begum, be quashed.

Heard Sri S.D. Pathak, learned Counsel for the applicant Lal Mohammad as well as Sri A.K. Singh, learned Counsel for the opposite party Smt. Saira Begum at considerable length.

To begin with, a dispute between Lal Mohammad applicant and Smt. Saira Begum and her mother Smt. Masihan over the question of possession over plot No. 196 measuring 10.34 acres and plot No. 197 measuring 9 03 acres situate at village Bhikampur, Police Station Rampur Karkhana, District Deoria, arose with the result that proceedings u/s 145 Code of Criminal Procedure relating to the aforesaid plots were resorted to by the Respondent Smt. Saira Begum and her mother Smt. Masihan. Upon being approached by the opposite party u/s 145 Code of Criminal Procedure the learned Magistrate passed an order holding that opposite party Smt. Saira Begum and her mother were in possession over the entire land in dispute. Aggrieved by this order, Lal Mohammad applicant preferred a revision before the learned Sessions Judge, who dismissed the said revision vide his order dated 12-11-1984.

After certain preliminary discussions as stated supra, I should now pass on to the case of the applicant Lal Mohammad. According to him, the plot No. 196 and No. 197 initially belonged to Khorat Hussain who later died and he was survived by the applicant Lal Mohammad, Riaz Hussain (father of Smt. Saira Begum) and Rahat Hussain. This assertion of the applicant was refuted by Saira Begum, who contended that only Rahat Hussain and Riaz Hussain were real brothers and co-tenants of the land in dispute co-sharing the land by halves. Rahat Hussain migrated to Pakistan and his half share in the land in dispute was declared evacuee property. The Custodian Authority disposed of the above property by public auction in favour of Smt. Saira Begum in whose favour a sale-deed was executed on 2-12-1969 and her name was also mutated in the revenue records. Applicant Lal Mohammad made an application for setting aside the aforesaid sale by auction in favour of the Respondent Saira Begum, which upon being considered, was dismissed by Asstt. Custodian on 25-2-1986. Subsequently, Lal Mohd. filed a petition u/s 27 of the Administration of the Evacuee Property Act, which also stood dismissed vide order dated 10-9-1976 of the Deputy Custodian General of Evacuee Property, New Delhi. Further, the case of the opposite party Smt. Saira Begum is that Riaz Hussain died in the year 1971 and her shares in the land in dispute devolved upon his widow Smt. Masihan (Mother of the opposite party) who had executed a registered Will-deed about the aforesaid land in favour of the sons of the opposite party Smt. Saira Begum on 16-6-1981 while she breathed her last in the year 1985. Thus, the half share of Rahat Hussain came to be possessed by Respondent and the remaining half share of Riaz Hussain fell to her sons Rizwan Ullah and Moin Ullah. It was further submitted that during the life time of the mother of the Respondent, applicant Lal Mohammad started interference with the peaceful possession of the Respondent. It was further submitted that the objection of applicant Lal Mohammad before consolidation officer was also rejected vide order dated 8-5-1981 regarding the disputed plot holding the title of the Respondent over the property and amaldaramad of the aforesaid order of the consolidation officer was also made in the Khatauni (Annexure 1) to the counter-affidavit.

The learned Counsel for the Respondent-opposite party further submitted that having lost his legal battle before Deputy Custodian General as well as in the proceedings u/s 145 Code of Criminal Procedure and also before the Consolidation Court, Lal Mohammad embarked upon a device to interfere with the peaceful possession of the Respondent over the land in dispute and threatened to take forcible possession over the said property to harvest the standing crop. However, the crops standing on the property were harvested by the Respondent with the police aid. Again, later on when the Respondent intended to harvest the standing crops on the land, the applicant and his men again extended threats to the Respondent to take forcible possession over the land and harvest the standing sugarcane crop. Finding that the Police aid was not forthcoming to the Respondent as and when she required, the Respondent Saira Begum moved an application dated 16-10-1986 before the Sub-Divisional Magistrate seeking Police aid in order to enable her to harvest the standing crop over the disputed lands. On this application, the learned Sub-Divisional Magistrate called for a report from the Station Officer of Police Station Rampur Karkhana. The Station Officer vide his report dated 23-11-86 intimated the Court that Lal Mohd. applicant and his men seem bent upon cutting away the standing crop by use of force and Lal Mohd. and his men are being aggressive as well. Ultimately, the Station Officer also recommended in his report for providing one Platoon of P.A.C. to Smt. Saira Begum so that she could cut away her crop without any interference from Lal Mohammad and other anti-social elements.

Smt. Saira Begum Respondent also sent an application addressed to the District Magistrate praying therein that she be provided Police force in order to harvest the crop3 standing on her plots. Now reverting to the application moved before Sub-Divisional Magistrate by the Respondent, the learned Sub-Divisional Magistrate issued notice to Lal Mohammad and after affording full opportunity to him of hearing, he passed the order annexed to the petition as Annexure 1, thereby allowing the application of Smt. Saira Begum. The Station Officer of Police Station Rampur Karkhana was also directed by him to see that the possession of Smt. Saira Begum over the disputed plots is not disturbed by Lal Mohammad and others.

Lal Mohammad applicant challenged the aforesaid order dated 12-8-1987 passed by Sub-Divisional Magistrate before the Commissioner, Gorakhpur Division which was rejected by the learned Additional Commissioner (Administration) on 28-11-1987 wherein the learned Commissioner held that the title of Respondent was fully established in earlier proceedings and that no stay order was granted by Settlement Officer Consolidation.

The learned Counsel for the applicant submitted that the learned Magistrate had passed the order dated 20-11-1987 u/s 456 Code of Criminal Procedure which is illegal and, therefore, the order dated 20-11-1987 is liable to be set aside. Section 456 Code of Criminal Procedure is quoted below for the sake of ready reference:

"456. Power to restore possession of immovable property.

(1) When a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and it appears to the Court that by such force or show of force or intimidation, any person has been dispossessed of any immovable property, the Court may, if it thinks fit, order that possession of the same be restored to that person after evicting by force, if necessary, any other person who may be in possession of the property.

Provided that no such order shall be made by the Court more than one month after the date of the conviction.

(2) Where the Court trying the offence has not made an order under Sub-section (1) the Court of appeal, confirmation or revision may, if it thinks fit, make such order while disposing of the appeal reference or revision ....

(3) ...

From a bare reading of the provisions of Section 456 Code of Criminal Procedure, it becomes absolutely clear that the aforesaid order passed by the learned Sub-Divisional Magistrate, Muzaffarnagar, does not fall within the purview of Section 456 Code of Criminal Procedure as the order passed by the learned Sub-Divisional Magistrate is purely administrative in nature. The learned Magistrate has obviously erred in making a reference to Section 456 Code of Criminal Procedure in his order. There was no occasion or relevance for him to make mention of Section 456 Code of Criminal Procedure in the order. A mere mention of Section 456 Code of Criminal Procedure in his order by the learned Magistrate, does not render the order illegal. It is simply an administrative order and its passing by the Sub-Divisional Magistrate was absolutely necessitated by the exigency of the situation. Now the question which falls to be determined is whether the very mention of Section 456 Code of Criminal Procedure by the S.D.M. renders the order illegal. I have already held in the earlier part of this judgment that the order is purely of administrative nature. Under the circumstance, the passing reference of Section 456 Code of Criminal Procedure, which the Sub-Divisional Magistrate appears to have made out of erroneous assumption without realising its impact does not affect the legal character of the order of its being an administrative order. I, therefore, take no judicial notice of Section 456 Code of Criminal Procedure as referred to in the order passed by Sub-Divisional Magistrate.

In the result, I hold that the order dated 20-11-1987 passed by learned Sub-Divisional Magistrate is an administrative order and it is a qualified administrative order to be carried out by the station officer of police Station Rampur Karkhana for providing police force to the Respondent Smt. Saira Begum in order to ensure maintenance of her possession over the diputed plots and to protect her from the highhandedness and on-slaught of Lal Mohammad applicant and other anti-social elements while harvesting the standing sugar-cane crop on her plots.

Under the circumstances as detailed above this application u/s 482 Code of Criminal Procedure on behalf of the applicant Lal Mohammad is devoid of any merit to warrant any interference by this Court and it is accordingly dismissed. The stay order dated 14-12-1987 passed by this Court is also vacated.