VINAI KUMAR Vs. OM PRAKASH AND

JUDGEMENT

(1.) VINAI Kumar and five others have filed this application under Section 482, Cr. P.C. for quashing the order dated October 21, 1978 passed by the learned Second Additional Sessions Judge, Moradabad in Criminal Revision No' 70 of 1978. Briefly stated the facts giving rise to this application are that one Shyam Kali was the tenure-holder of certain plots of land situate in village Faridpur Mendi, district Moradabad. She was recorded as Bhumidhar. She sold that land in favour of the applicants by means of a sale deed dated June 27, 1975. The applicants also obtained possession over the plots. In order to grab the land illegally the respondent No. 1 namely, Om Prakash, filed an application under Section 145, Cr.P.C. alleging that there was reasonable apprehension of breach of the peace regarding possession over the said plots and necessary action may be taken, A preliminary order was passed on February 16, 1976 attaching the land and placing it in the custody of Supurdar. After taking evidence of both the sides the learned S.D. M. before whom the proceedings were pending came to the conclusion that he was unable to decide as to who \vas in actual possession of the disputed land and under Section 146 (1) of the new Code directed the land to be attached. He further ordered that the attachment shall continue till the parties got their rights determined by a competent court. After the execution of the aforesaid sale deed mutation proceedings started. The opposite party No. 1 was also a party to the same. The Tehsildar came to the conclusion that the applicants were in possession of the land under a valid sale deed. He, therefore, ordered that the name of Smt. Shyam Kali be expunged and the names of the applicants be mutated in her place. The opposite party No. 1 filed a revision which was referred to the Board of Revenue by the Additional Commissioner. On February 3, 1978 the Board of Revenue decided the matter in favour of the applicants. Accordingly the names of the applicants were recorded over the plots in dispute in the Khasra as well as the Khatauni. After the decision of the Board of Revenue the applicants moved an application before the Magistrate to the effect that they have been held to be in possession of the land by a competent court and their names have been recorded over them. Therefore, the land was liable to be released in their favour. This application was contested by the opposite party No. 1 on the ground that mutation court is not a competent court within the meaning of Section 146 and any order passed by it is of no avail. The learned Magistrate did not find favour with this contention and by his order dated May 18, 1978 released the property in favour of the applicants. It was accordingly released in their favour on June 1, 1978'and they are still continuing in its possession. The opposite party No. 1 filed a revision application and the learned lower re visional court held that a mutation court is not a competent court within the meaning of Section 146 and any order passed by it is of no effect. This order was passed on October 21, 1978. Hence this petition. The only point for consideration is whether a mutation court is a court of competent jurisdiction within the meaning of Section 146 of the new Code which reads as follows: "If the Magistrate "at any time after making the cider under sub-section (1) of Section 146, Cr.P.C. considers the case to be one of emergency; or if he decides that none of the parties was then in such possession, as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to possession thereof." It will not be out of place to give a brief history of this provision and the case law on this point. In the Criminal Procedure as it stood prior to the Criminal Procedure Code of 1956 Section 146 (1) stood as follows: "If the Magistrate decides that none of the parties were then in such possession or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach it until a competent court has determined the rights of the parties thereto or the person entitled to possession thereof." The expression 'competent court' came up for consideration in the case of Ram Sri v. Sri Kishun (1924 A.L.J. 803,) Boys, J. as he then was, observed: "The words 'competent court' in Section 146(1) of the Code of criminal Procedure are not limited to a competent civil court but would include the order of a competent revenue court declaring the person entitled to the property and putting him in possession and ordering mutation in the revenue records in his favour under Section 40 of the U.P. Land Revenue Act, 1901." According to the aforesaid view a reverue court ordering mutation is also a competent court within the meaning of Section 146(1) This question again cropped up in the case of Maqsood Ati Khan and others v. Ahmed Said Khan (1957 A.L.J. 242.) in which As-thana, J. as he then was, observed "If the opposite parties to the criminal case under Section 145, Cr. P.C. were not parties to the mutation case which had been filed by the applicant and which was decided in his favour, then the decision given in the mutation case in favour of the applicant will not affect the rights of the opposite parties in the case under Section 145, Cr.P.C nor any order could be passed by the Magistrate in the case under Section 145, Cr.P.C. against them on the basis of decision in the mutation case. If these persons were potties to the mutation case the decision in that case could form the basis of the release of the attached property in favour of the applicant irrespective of the fact whether an appeal Was pending before that decision and weather a stay order had been passed by an appellate court in the mutation case. Obviously in the aforesaid case also the revenue court deciding a mutation case was held to be competent court and its decision could i be given effect to provided the person contesting was a party to those proceedings. In Section 146 of the Criminal Procedure Code, 1898 as amended in 1955 some change was made. It was to the effect that if the Magistrate was of opinion that non of the parties was in such Possession or was unable to decide as to which of them was then in such possession, he could attach the property and. after drawing up a statement of facts of the case forward the record of the proceedings to a civil court of competent jurisdiction to decide the question whether any or which of the parties was in possession of the subject if dispute a the date of the order as explained in sub-section (A,I.R. 1969 Mys. 315,) of Section 145, Cr.P.C. The words 'civil court' were also added before the words 'competent jurisdiction' and the rhea was that only those civil courts having jurisdiction over the subject-matter in dispute would be competent to decide the reference made by the Magistrate. This question came up for consideration in Sri Sheonath Prasad v. City Magistrate, Varanaw and others (A.I.R. 1959 Alld. 467.) I need not dilate at length on this point because no controversy of competent civil court is involved in the matter before me. Under the new Code Section 145(1) reads as mentioned below: "It ig almost on the same pattern as in the case of Criminal Procedure Code of 1898." In In Malegowda v. Mugaiah and others (A.I.R.1969 Mys 315) this controversy again arose. In that case a Deputy Commissioner had decided the question of possession. It was urged that he was not a court of competent jurisdiction. After referring to several cases it was held that the Deputy Commissioner to whom an application has to be made under any one of Sections 5 to 9-A of the Inam's Abolition Act, 1954, is under an obligation to examine the nature and history of all lands in respect of which a Kadim tenant, a permanent tenant and a quasi-permanent tenant, the holder of a minor Inam or Inamdar claims to be registered as an occupant. Thus one of the duties which is cast on the Deputy Commissioner is to give his decision or a definitive judgment which is made subject to an appeal to the Revenue Appellate Tribunal and that decision of the Tribunal is or has a finality and authoritativeness. Therefore, the finality and authoritativeness of the decision rendered by a Tribunal are some of the essential tests to hold whether a judicial pronouncement is a decision of the court. Therefore, the decision of the Mysore Revenue Appellate Tribunal was held to be a decision by a competent court within the meaning of Section 146(1) of the Code of Criminal Procedure . The words of Section 146(1) of the new Code are also very significant. They say that the attachment order shall 'continue' until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. The word 'thereto' refers to the property or subject in dispute. The decision of the competent court has to be with regard to the person entitled to possession thereof. There can be no manner of doubt that a mutation court is fully competent to decide as to who is entitled to the possession of the property. Therefore, it is competent court for purposes of Section 146(1) of the Code. The view taken by the learned Sessions Judge was obviously wrong. Accordingly the application is allowed and the order dated October 21, 1978 passed by the learned Second Additional Sessions Judge in Criminal Re-vision No. 70 of 1978 (Om Prakash v. State and others) is quashed.