KRISHNA PRASAD Vs. PARAS NATH AND ONE ANOTHER

JUDGEMENT

(1.) THIS revision has arisen out of proceedings under sec. 145 Cr.P.C. The subject-matter of dispute in this case is a shop which is part of a building known ad House No. 72, Zero Road, Allahabad. The entire building belongs to the applicant. According to him, he had let out the disputed shop to one Imtiyaz. It appears that this Imtiyaz in his turn sub-let it to one Ram Subhag Gupta. The applicant filed a suit (Suit No. 631 of 1960) against Imtiyaz and kam Subhag Gupta for their ejectment in the Court of Munsif (West) Allahabad. That suit was decreed on 9-4-63. Imtiyaz went up in appeal, but his appeal was dismissed on 4-10-63. After the appeal of Imtiyaz was dismissed, opposite party Paras Nath Tripathi came in the picture. He started saying that he was the owner of the disputed shop by adverse possession and the applicant has no concern with it. He even filed a suit (Suit No. 63 of 1964) against the applicant and prayed for an injunction to restrain him from taking possession of the disputed shop from Imtiyaz in execution of the decree which he had obtained against him. His suit was dismissed by the trial court on 20-2-70. He went up in appeal (Civil Appeal No. 338 of 1970) and his appeal also met the same fate. A second appeal (Second Appeal No. 113 of 1973) filed by him in this court also bore no fruit and it was dismissed in limine. The applicant then put his decree in execution passed in Suit No. 631 of 1960 referred to above. The court appointed an Advocate Commissioner to execute his decree. It is said that the Advocate Commissioner (Sri V.P. Singh) went to the shop in question in the forenoon of 16-10-71 and delivered possession of the disputed shop to the applicant after breaking open the lock that was found put on it. The case of the applicant is that after taking possession of the shop he looked it and went away. Thereafter, on the same day, in the after-noon, the opposite party broke his lock and took y. possession of the shop. As soon as the applicant came to know about it, he reported the matter to the police. On the next day also the applicant made another report in regard to this very matter. All this led to bad blood between the parties and on 21-11-71 they even quarrelled with each other. A report of this quarrel also was lodged at P.S. Kotwali. Matter came to such a pass that there was apprehension of breach of peace. The applicant, therefore, moved City Magistrate, Allahabad to initiate proceedings under section 145 Cr.P.C. regarding the disputed shop. The City Magistrate called for report from P. S. Kotwali. The report submitted by the police also showed that there was a dispute between the parties regarding possession over the disputed shop and that dispute was such as was likely to cause apprehension of breach of peace. The City Magistrate, therefore, immediately took action under section 145 Cr.P.C. and passed a preliminary order on 9-12-71. He also ordered for the attachment of the disputed shop. It appears that before the shop could be attached, the learned Magistrate, vide order dated 13-12-71, dropped the proceedings under sec. 145 Cr.P.C. as he felt that apprehension for breach of peace qua the disputed shop had come to an end. The applicant went up in revision against the order dropping the proceedings. The revisional court heard the parties and was of the view that the order passed by the Magistrate dropping the proceedings under section 145 Cr.P.C. was improper and it, therefore, vide order dated 2-5-72, made a reference to the High Court with the recommendation that the order dated 13-12-71 passed by the Magistrate dropping the proceeding be quashed. THIS court, vide its judgment dated 23-11-73, accepted the reference, set aside the order dated 13-12-71 passed by the Magistrate and remanded the case to the court of the Magistrate with the direction that he should proceed to decide the case in accordance with law from the stage on which the preliminary order dated 9-12-71 was passed. After remand, the learned Magistrate again took up the matter and called upon the parties to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and also directed them to produce evidence in support of their respective claims. It appears that, vide order dated 14-8-74, this case was transferred from the Court of City Magistrate Allahabad, to the court of S.D.M., Manjhanpur, Allahabad. In the court of S.D.M., Manjhanpur, the parties litigated the matter for months together. When the case was at its last stage, the opposite party gave an application on 18-1-75 mentioning therein that now there was no more apprehension of breach of peace concerning the disputed shop and as such the court should drop the proceedings. The learned Magistrate heard both the parties on this application and rejected it. While so rejecting it, he relied on a decision of this court reported in Dhannoo v. Patiram and others (1). The Magistrate was of the opinion that once a decision under section 145 Cr.P.C. was taken that a dispute existed and that dispute was such as was likely to cause a breach of peace, the proceedings could not be dropped subsequently merely because there was no more any apprehension of breach of peace. After rejecting the application dated 18-1-75 the Magistrate decided the case on merits and found the applicant to have been in possession on the date the preliminary order was drawn and within two months prior to that. Accordingly, he passed an order delivering possession of the disputed shop to the applicant. Aggrieved, the opposite party went up in revision. The revisional court found no substance in the revision and dismissed it on 30-5-75. After the revision of the opposite party had been dismissed, the applicant have an application dated 17- 5-76 in the court of the Magistrate praying that order dated 22-4-75 passed by the court delivering possession of the disputed shop to him be enforced. The learned Magistrate heard both the sides on this application and eventually rejected it. Aggrieved, the applicant has come up in revision to this Court. I have heard the learned counsel for the parties at great length and after doing so I am firmly of the view that this revision must be allowed. I find that the court below has not appropriated the facts of the case in a proper manner with the result that it completely went off the rails when it rejected the application of the applicant for enforcing order dated 22-4-75 through which its predecessor-in-office had found the applicant to be entitled to get possession of the disputed shop. Order dated 22-4-75 is on record and it shows that the applicant had been in possession of the disputed shop on the date the preliminary order was drawn and within two months prior to that. The opposite-party challenged the correctness of this order by filing a revision, but his revision was rejected, vide order dated 30-5-75. The opposite party submitted to the judgment passed by the revisional court and took no steps to assail it in a superior court. The result was that the opposite party acquiesced in the order dated 22-4-75 and it became final so far as the parties were concerned. Once that order had become final, the Magistrate was bound to enforce it unless something came in his way and legally prevented him from giving effect to that order. In the impugned order dated 2-11-77 the learned Magistrate has referred to a judgment dated 26-7-77 in a case between the parties under sections 448 and 427 J.P.C., which, according to him, stood in his way in giving effect to the order dated 22-4-75. The case under sections 448 and 427 I.P.C. had been instituted by the applicant against the opposite party in respect of the disputed shop. In that case the applicant had alleged that in execution of the decree passed in suit no. 631 of 1960 against Imtiyaz and Ram Subhag Gupta, he had taken possession of the disputed shop in the fore-noon of 16-10-71 and put his lock on it, but on the same day, some time in the after-noon, the opposite party broke open his lock and trespassed into that shop. He had sent a notice to the opposite party to withdraw his possession from that shop, but he did not do so. The opposite party was thus accused of having committed offences under sections 448 and 427 I.P.C. The opposite party contested this case and denied to have committed trespass over the disputed shop. According to him, he had always been -in possession over that shop and had never been dispossessed in execution of the decree passed against Imtiyaz and Ram Subhag Gupta as alleged by the applicant. The learned Magistrate seized of the case, found the notice sent by the applicant to the opposite party to be defective and not in accordance with law. He, therefore, held that no offence of criminal trespass was made out against the opposite party. Further, on the material present on the record of the case, he felt doubtful if actual possession of the disputed shop had been made over to the applicant on 16-10-71 in execution of the decree passed against Imtiyaz and Ram Subhag Gupta. According to the learned Magistrate, it may have been that the opposite party had been in peaceful possession of the disputed shop from before 16-10-71. The learned Magistrate, therefore, acquitted the opposite party. The question is whether on the basis of this judgment, was it open to the Magistrate seized of the case under section 145 Cr. P. C. to refuse to deliver possession of the disputed shop to the applicant in pursuance of the order dated 24-4-75 ? My answer to this question shall be in the negative. Once the Magistrate had found the applicant to be |n possession of the disputed shop on the date the preliminary order was drawn and within two months prior to that, he was bound to issue an order declaring the applicant to be entitled to its possession, unless he was evicted therefrom in due course of law. The Magistrate appears to have taken the view that as the case filed by the appellant against the opposite party under sections 448 and 427 I.P.C. ended in the acquittal of the opposite party, the applicant will be deemed to have been evicted from the disputed shop in due course of law and as such it was open to him to ignore the order dated 22-4,75 delivering possession of the disputed shop to the applicant. Acquittal of the opposite party is not tantamount to eviction of the applicant from the disputed shop in due course of law. Generally speaking, it is only the civil court which would decide the question as to who has not a better title to the disputed shop. In the instant case, the Civil Court has all through found the applicant to be the lawful owner of the disputed shop. In regard to this shop the applicant had filed a suit for rent and ejectment against Imtiyaz and Ram Subhag Gupta and he won that case throughout. It was probably with a view to defeat his decree in that case that the opposite party filed a suit against the applicant concerning this shop and prayed for injunction to restrain the applicant from taking possession of the disputed shop in execution of the decree passed against Imtiyaz and Ram Subhag Gupta. The opposite party lost that suit right up to the High Court. The right and title of the applicant to the shop thus stood fully established. The case under section 146 Cr. P. C. also ended in his favour. In that case his possession over the disputed shop was found to have been established on the due date. The Magistrate, therefore, passed an order to deliver possession of the shop to him. No order of a competent court had never been passed at any time to evict the applicant from the disputed shop. Sometimes even a Criminal Court can pass an order for eviction of a person from a property, but in the instant case, there was no order for the eviction of the applicant from the disputed shop by a Criminal Court also. The case which the applicant had filed against the opposite party under sections 448 and 427 I.P.C. and which ended in the acquittal of the opposite party, was not a case in which the applicant could be said to have been evicted from the disputed shop by a Criminal Court. The learned counsel for the opposite party drew my attention to the ruling reported in B. Gajadhar Singh v. State, A.I.R. 1953 All. 694. In this case A started proceedings under section 145 Cr. P. C. against B in respect of a property. The Court found A to be in possession of the property on the date the preliminary order was passed and declared him to be entitled to remain the possession until evicted therefrom in due course of law. After some time B filed a case against A under section 447 I P.C. The Court convicted A under section 447 I.P.C, B then obtained possession of the disputed property under section 523 Cr.P.C. It was held that A had been evicted from the disputed property in due course of law. The facts of this case can have no application to the facts of the instant case. Here as stated above, the applicant had never been evicted from the disputed shop by any Court at any time. The right of the applicant to get possession of the disputed shop always remained unscathed. Therefore, in all fairness to the applicant the Court below should have delivered possession of the disputed shop to the applicant in pursuance of the order dated 22-4-75 passed earlier in his favour. The learned counsel for the opposite party contended that the applicant was not entitled to get possession of the disputed shop in pursuance of the order dated 22-4-75 because this order was a nullity. THIS contention of the learned counsel was based on two things, one was that in the case under section 145 Cr.P.C. apprehension of breach of peace had come to an end and, therefore, the Magistrate had no jurisdiction to pass the order dated 22-4-75, and other was that this Court while remanding the case had asked the Magistrate concerned (City Magistrate) to proceed with the case in accordance with law from the stage of the order dated 9-12-71, but the Magistrate who actually prosecuted with the case thereafter, was not the City Magistrate but Sub-Divisional Magistrate, Manjhanpur and, therefore, the order passed by S.D.M., Manjhanpur was without jurisdiction. Both these contentions, to my mind, are completely bereft of substance, firstly, it is not open to the opposite party to raise these contentions at this stage of the case he is estopped from doing so. The opposite party had raised both these points in the revision which he had filed against the order dated 22-4-75. These points were considered by the revisional Court at sufficient length as would appear from its judgment dated 30-5-75. The opposite party submitted to this judgment and did not challenge it in any Superior Court. The result was that it became final between the parties. In the same proceedings it is now not open to the opposite party to take up these points again. It has been held by the Supreme Court in Satrudhan Ghoshal and others v. Smt. Duranjin Devi and another (A.I.R. 1960 S.C. 941.) that : "The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings." In view of this decision, the principle of res judicata will apply to this case also and it is not open to the opposite party to re-agitate the same points again in the present proceedings. The learned counsel for the opposite party contended that as the points raised by him went to the question of the Court's jurisdiction to pass the impugned order, it was open to him to re-agitate these points again in the present proceedings. In this connection he drew my attention to the ruling reported in Mathura Prasad Sarju Jaiswal and others v. Dussibai N. B. Jeejeebboy (A.I.R. 1971 S.C. 2355). In this case it was held that a question relating to jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of that Court. THIS therefore, raises the question whether the order dated 22-4-75 passed by the Magistrate touching the question of jurisdiction was erroneous or not. According to the learned counsel for the opposite party, it was erroneous because after the opposite party had raised the plea that apprehension of breach of peace had come to an end, it was not open to the Magistrate to proceed with the case under section 145 Cr.P.C. and if he proceeded despite that, the order passed by him was coram non-justice. THIS contention of the learned counsel is not founded on correct facts. It is true that the opposite party had raised the plea that apprehension of breach of peace had come to an end, but the Magistrate not this point through his order dated 1-2-76. The Magistrate relying on the case of Dhanno v. Patiram and others (supra) held that once apprehension of breach of peace existed and a preliminary order was drawn, then it is not necessary that apprehension of breach of peace should continue to exist at the time of the passing of the final order also. The Magistrate was bound by this decision of the Court and, therefore, on the basis of the law as it existed then, order dated 1-2-76 passed by him cannot be said to be wrong. The Magistrate, therefore rightly proceeded with the case even when the opposite party raised the plea that apprehension of breach of peace had come to an end. Today, in view of the changed law, the order passed by the Magistrate may be said to be wrong, but it was not wrong at the time when order was passed. Therefore, on the facts as they stand, merely because apprehension of breach of peace had allegedly come to an end, order dated 22-4-75 cannot be said to be without jurisdiction. Now the next point that calls for decision is whether S.D.M., Manjhanpur had jurisdiction to proceed with the case after it had been remanded by the High Court, vide order dated 22-11-73. Through this order, as stated above this Court had directed the Magistrate concerned (City Magistrate, Allahabad) to proceed with the case from the stage the order dated 9-12-71 was passed. After the case was remanded, it went back to the Court of City Magistrate, Allahabad. It appears that subsequently D.M., Allahabad transferred this case from the Court of City Magistrate, Allahabad to the Court of S.D.M., Manjhanpur. The District Magistrate had certainly power under the law to transfer a case from the Court of one Magistrate to the Court of another Magistrate. There was therefore, nothing illegal when the District Magistrate transferred this case from the Court of City Magistrate, Allahabad, to the Court of S.D.M., Manjhanpur. Like the City Magistrate, S.D.M., Manjhanpur was also a First Class Magistrate. He was, therefore, fully competent to proceed with the case under section 145 Cr.P.C. S.D.M. Manjhanpur had, therefore, full jurisdiction to proceed with this case. Order dated 22-4-75 cannot be, therefore, be said to be without jurisdiction. Thus, from a perusal of what I have mentioned above, it is clear that none of the points raised by the learned counsel for the opposite party to assail the order dated 22-4-75 has any substance in it. THIS order was a perfectly valid order and the Magistrate who passed this order had full jurisdiction to pass it. THIS order had become final and both the parties were bound by it. It was not open to the Magistrate to ignore this order and refuse to deliver possession of the disputed shop to the applicant. The applicant had been deprived of the fruits of his decree for a long time and it would be in the fitness of things if the possession of the disputed shop is delivered to him as early as possible. In the result, I allow this revision and set aside the impugned order dated 2-11-77. The Magistrate is ordered to deliver possession of the disputed shop to the applicant in pursuance of the order dated 22- 4-75.