MASTANSHAH DIDARSHAH FAKIR Vs. UMARSHAH HATTUSHAH FAKIR

JUDGEMENT

(1.) BEING aggrieved by the order passed by the Additional District Magistrate, Amravati, in a criminal revision before him arising out of an order dated October 25, 1966 passed by the Sub -Divisional Magistrate, Amravati, in a proceeding under Section 145 of the Criminal Procedure Code, the applicant Kasamshah son of Mastanshah Fakir has come here in revision.

(2.) THERE was a dispute in respect of Nazul Plots Nos. 182/1 and 182/2, sheet No. 82 -D, Amravati, between opponents Nos. 1 and 2 and the applicant and his deceased father. It appears that opponent No. 2 Hydershah Umarshah got the names of opponent No. 1 and of himself mutated on the ground that they were trustees of this property. It is said that there is a Durgah of Wali Kalandarshah on these two plots of land. On the other hand, the applicants claim to be in possession of this property. The applicants' complaint was that the opponents were trying to disturb their peaceful possession and there was likelihood of the breach of peace. Therefore, the police started proceedings under Section 145 of the Criminal Procedure Code in the year 1960 before the Sub -Divisional Magistrate, Amravati. The Sub -Divisional Magistrate after considering all the evidence before him declared that the applicants were in possession of these impugned lands. He made this declaration on May 5, 1961. A revision was preferred by the opponents and their revision was dismissed and the order of the Sub -Divisional Magistrate was confirmed. The opponents did not then seek recourse to establish their right in a civil Court.

(3.) IN September 1968, therefore, a second proceeding under Section 145 of the Criminal Procedure Code was initiated before the Sub -Divisional Magistrate. The Sub -Divisional Magistrate passed a preliminary order on September 9,1968. The learned Sub -Divisional Magistrate, Amravati, then passed an order on November 18, 1968 referring the matter to a civil Court with a direction that he should decide whether any and which of the parties was in possession of the subject of dispute at the date of the preliminary order, viz., September 9,1968. He also directed the parties to appear before the civil Court for this purpose. He did this because he had before him at this time a decision of the revenue Court of the year 1958 wherein it decided that the names of the opponents were to be mutated on the records of the impugned property. According to the learned Magistrate, this was, therefore, one of the circumstances to conclude that the opponents were in possession of the impugned property. He also considered the order of the Sub -Divisional Magistrate dated May 5, 1961 which declared the possession of the applicant and which order was later on confirmed by the Additional District Magistrate in revision. It was his view after considering these circumstances that he was not m a position to decide which of the two parties was in actual possession of the impugned property which was in dispute. Accordingly, therefore, he assumed jurisdiction under Section 146 (1) of the Criminal Procedure Code and forwarded the record and proceedings to the civil Court to decide the question of possession.