STATE OF MAHARASTRA Vs. MAIMUNA BEGAM

JUDGEMENT

(1.) THIS appeal has been filed by the State of Maharashtra through the Collector, Bhandara under S. 96 of the Code of Civil Procedure, 1908 against the judgment and decree dated 5th of May, 1990 passed by the Civil Judge, Senior Division, Bhandara in Special Civil Suit No. 82 of 1985 (Maimunabegum v. State of Maharashtra) whereby he passed the decree in favour of plaintiff and directed the defendants to return to the plaintiff the golden ornaments weighing 28 1/2 tolas or the gold of equal weight or in the alternative to pay the present value of the gold weighing 28 1/2 tolas and also directed the defendants to return cash of Rs. 80,000. 00 to the plaintiff along with costs of the suit. The plaintiff-Maimunabegum filed suit as indigent person on 19-3-1980 in the Court of the Civil Judge, Senior Division, Bhandara against the defendants stating therein that on 19-1-1977 the defendants 4, 5 and 6 came to the house of plaintiff and searched the same; the said persons forcibly took the keys of the boxes and almirah from her saying that they are having warrant against her husband and he will be detained in MISA or in any criminal case under S. 406 of the Indian Penal Code; on search of the house, the Police and the said defendants found cash of Rs. 80,000. 00 in one box along with the ornaments viz. to Patlis of 10 tolas, one Gahu Poth of 4 tolas of gold, five golden chains of 4 tolas each and four rings of 1/2 tola each, totally amounting to Rupees 78,600/- the ornaments and cash which were seized were in actual physical possession of the plaintiff and the same seizure and search was illegal and without any rights. According to the plaintiff, the property was not liable to be seized and despite several demands, the authorities-defendants have failed to return the same. The plaintiff alleged that the property was taken away by the defendants 4 to 6 without giving any acknowledgment. The plaintiff submitted in the plaint that she has issued a notice under S. 80 of the Code of Civil Procedure on 18-1-1980 to the defendants and despite receipt of the notice, no redress has been given t0 the plaintiff, necessitating the filing of suit. The suit was valued at Rupees 1,58,600/- for the purposes of Court-fees and jurisdiction. The plaintiff thus prayed that she be allowed to sue as indigent person and the defendants be directed to return cash of Rs. 80,000. 00 and the ornaments of 46 tolas of gold to the plaintiff or the price of the said ornaments which is Rs. 78,600. 00 and the decree for interest from the date of seizure till realisation at 18% per annum and the costs be awarded.

(2.) THE defendants filed written statement and traversed the averments made in the plaint. The defendants submitted in the written statement that the defendant No. 6, Shri Vyawahare, Police Sub-Inspector, P. C. I. Centre, Rohankarwari, Chindwara Road, Nagpur had carried a search warrant issued by the defendant No. 3 Shri V. R. Bangirwar, Sub-Divisional Magistrate, Bhandara for Government record and the record of All India Jamayata Ul Mansoori; the said warrant was issued under the provisions of the Criminal Procedure Code, 1973 for search of the house of Shri A. S. Qureshi at Tumsar (plaintiff's husband) and pursuant to that warrant the house was searched by the defendant No. 6, Police Inspector in presence of defendants 4 and 5 who were directed to be present as witnesses at the time of search; the defendant No. 3 Shri V. R. Bangirwar who was working as Sub-Divisional Magistrate-at Bhandara District was competent to issue the search warrant for recovery of relevant record of the Government Office and the responsible officers i. e. the defendant No. 4 Shri N. V. Pant, Nazul Officer and the defendant No. 5 Shri D. M. Landage, Naib Tahsildar were asked to carry the search of the house of the plaintiff's husband; the warrant was shown to the plaintiff and thereafter the search was conducted legally and in peaceful manner and, therefore, the question of forcibly taking the keys of big box and almirah of the plaintiff saying that there was warrant against her husband for detention in MISA and in criminal case, did not arise. The defendants submitted that there was no warrant of arrest of plaintiff's husband and the search warrant was issued by the Sub-Divisional Magistrate, Bhandara for search of the Government record and the record of All India Jamayate Ul-Mansoore. The defendants denied having taken cash or gold by way of seizure and submitted that the said allegations are totally false. It was also submitted by the defendants in the written statement that except the records no cash or gold ornaments referred to in paragraph 3 of the plaint, were recovered or seized, as alleged by the plaintiff and, therefore, no cause of action has accrued in favour of the plaintiff and the suit was liable to be dismissed.

(3.) THE trial Court framed the following issues for determination in the suit :-