MIRZA BAGAR HUSAIN Vs. STATE

JUDGEMENT

(1.) THIS reference has been made by the Civil and Sessions Judge. Lucknow arising out of proceedings under Section 145, Code of Criminal Procedure (hereinafter called the Code) recommending that the Sub-Divisional Magistrate's order dated 21-4-1969 be quashed.

(2.) PROCEEDINGS under Section 145 of the Code were started in the court of Sub-Divisional Magistrate. Lucknow on the report of the Station Officer, Kakotl dated 14-4-1963. The dispute was between Babu Ram Rastogi and late Hakim Sajjad Husain over the possession of grove on (plots Nos. 483, 486, 491. 499, 445, 467, 469. and 470 measuring 20 bighas 6 biswas 7 biswansis situate at village Kathingra, police station Kakori, district Lucknow. The learned Sub-Divisional Magistrate passed the preliminary order on 4-5-1963 and also attached the grove in question and directed the parties to file their affidavits and documents in support of their respective claims as to the possession thereof. In the meantime Hakim Sajjad Husain died on 31-8-1963 and his widow Smt. Mohaddisa Begam, his brother Mirza Mohammad Askari and his sister Smt. Sikandar Ja_han Beflam were substituted in his place in the court of Sub-Divisional Magistrate, Lucknow, The learned Sub-Divisional Magistrate found himself unable to decide the ques -. tion of possession and made a reference under Section 146 of the Code to the Civil Court. While the matter was pend- ing before the Munsif Havali in the| Civil Court. Mirza Mohammad Askari also died and Mirza Kazim Husain, Baqar Husain, Raza Husain. Mirza Ali Hasan; Mirza Muzaffar Husain," Khadim Husain,; Mehdi Husain, Askari Husain and Bazait. Husain were brought on record as his legal representatives. The learned Mun-sliiv ultimately found that Hakim Sajjad Husain, the original first party, had been in possession on the date of the preliminary order and two months next before that and sent back the record to the Sub-Divisional Magistrate. Lucknow. In respect of the record, the Sub-Divisional Magistrate. Lucknow on 4-6-1968 passed an order in conformity with that finding in favour of (1) Smt. Mohaddisa Begam, (2) Mirza Kazim Husain, (3) Baqar Husain, (4) Raza Husain, (5) Muzaffar Husain, (6) Mehdi Husain, (7) Smt. Sinkan-dar Jahan Begam, (8) Ali Husain and (9) Baqar Husain and restrained the opposite party Babu Ram Rastogi from interfering with the possession of the first party till they were evicted by an order of the competent court according to law and directed the attached property to be released in favour of the first party. On 21-4-1969 the learned Magistrate reviewed his order dated 4-6-1968 and di-reefed that the order be read as if it did not make any mention of the names of any persons and that the final order was in favour of only the legal representatives of Hakim Sajjad Husain,

(3.) FEELING aggrieved by that order, Mirza Baqar Husain, Mirza Raza and Mirza Ali Hasan filed a revision in the Court of Sessions Judge, Lucknow contending that the learned Magistrate had no jurisdiction to review the order dated 4-6-1968.