SANKATHA PRASAD MISHRA Vs. STATE OF U P

JUDGEMENT

(1.) IN respect of certain plots situate in village Sultanpur, Police Station Ram Nagar, District Varanasi, Sankatha Prasad Mishra and his three sons, hereinafter referred to as the 'applicants', filed a suit in the court of Munsif on 18-9-1967 for a permanent injunction against Janki Prasad Singh and Sharda Prasad Singh, hereinafter called as the 'opposite parties' restraining them from interfering with the applicants' possession. This suit was dismissed on 29-5-1971 as the applicants failed to establish their possession over the disputed plots. The applicants then filed an appeal, which was declared to have abated as a Notification under Section 4 of the U. P. Consolidation of Holdings Act was issued bringing the area in which the disputed plots were situated under consolidation. The applicants had also filed a suit under Section 229-B of the U. P. Zamindari Abolition and Land Reforms Act in the court of the Judicial Officer against the opposite parties for a declaration that the applicants were Sirdars of the said plots. On 10-61971 the said suit was decreed ex-parts. An application by the opposite parties for setting aside the exparte decree was dismissed on 16-7-1971. Since the dispute about possession of the said plots continued, the applicants filed an application under Section 145 of the Criminal Procedure Code in the court of the Sub-Divisional Magistrate on 18-7-1971. The applicants were the first party and the opposite parties were the second party to thus application. After having obtained a report from police that there was an apprehension of breach of the peace, the learned Magistrate passed a preliminary order on 19-7-1971, attached the disputed plots and gave them in the custody of a Supurdar, Meanwhile, the matter relating to rejection of the application for setting aside the ex parte decree in the suit under Section 229-B of the U. P. Zamindari Abolition and Land Reforms Act was pursued by filing an appeal against the said order. The Additional Commissioner allowed the appeal and remanded the case to the trial court. The applicants then filed a revision toe-fore the Board of Revenue which was admitted and further proceedings in the suit under Section 229-B of the U. P. Zamindari Abolition and Land Reforms Act were stayed. Meanwhile, the proceedings in the case under Section 145 of the Criminal Procedure Code continued and on the material on the record the Sub-Divisional Magistrate found the applicants to be in possession of the disputed plots on the date of the preliminary order and two months prior to it. By an order dated 25-3-1972 the disputed plots were ordered to be released in favour of the applicants. On 26-31972 the applicants-took possession of the disputed plots. They have been in possession of the disputed plots since then and cultivating them. The opposite parties filed a revision before the learned Sessions Judge, Varanasi against the order of the Sub-Divisional Magistrate dated 25-3-1972. The learned Sessions Judge made a reference to the High Court by his order dated 20-6-1973 recommending that the plots be released in favour of the opposite parties. On 19-12-1973 the High Court accepted the reference and directed that the disputed plots be released in favour of the opposite parties. In pursuance of the order of the High Court the opposite parties moved an application before the Sub-Divisional Magistrate for release of the disputed plots in their favour. This move was opposed by the applicants on the ground that the possession has already been delivered to them long ago by the Supurdar under the orders of the court and there 'being no provision in the Criminal Procedure Code for restitution the learned Magistrate was functus officio and no effective order could be passed by him. The learned Sub-Divisional Magistrate rejected the application and by his order dated 19-1-1974 directed that the disputed plots 'be released in favour of the opposite parties. The applicants then filed this application purporting to be under Section 561-A (old) Criminal Procedure Code questioning the validity of the said order of the Sub-Divisional Magistrate dated 19-1-1974 and have prayed that the said order be quashed.

(2.) THE question that arises in the case appeared to the learned Single Judge of some difficulty on account of conflicting case-law and he referred the case to a larger Bench, This is how the matter is now before us.

(3.) IT has been contended on behalf of the applicants by their learned Counsel that the applicants' title to the disputed plots having been affirmed by a competent court in the suit under Section 229-B of the U. P, Zamindari Abolition and Land Reforms Act and they having been found in possession by the learned Magistrate in the proceedings under Section 145 of the Criminal Procedure Code and they having obtained possession of the disputed plots on the orders of a competent Magistrate, the subsequent order of the High Court accepting the reference and directing that possession be delivered to the opposite parties, was infructuous and could not have been acted upon by the learned Magistrate as any order passed by him for releasing the disputed plots in favour of the opposite parties could not be executed the disputed plots no longer being in custodia leges, hence the impugned proceedings before the learned Magistrate were invalid and ought to be quashed. In answer on behalf of the opposite parties it was urged that the final order of the Magistrate under Section 145 of the Criminal Procedure Code being revisable under the law by the higher Court and once the revision is accepted and the order of the Magistrate is set aside, there being no subsisting and valid order to sustain possession taken in pursuance of the said order, it becomes the duty of the learned Magistrate in obedience of the revisional order of the higher court to restore possession to the party held to be in possession by the higher court.