MAQSOOD ALAM Vs. MOSSAMAT BIBI HUSNA

JUDGEMENT

(1.) These two revisions are directed against the final orders passed by the learned Magistrate in two separate proceedings under Section 145 of the Code of Criminal Procedure. The petitioner is the same is both these revisions who figured as second party in the two proceedings. In Criminal Revision No. 1063 Mossamat Bibi Husna was the first party and she is the opposite party in this present revision and in criminal revision No. 1069 Mahammed Ainul Haque, husband of Mossamat Bibi Husna figured as first party and he is the opposite party in this present revision. Both these proceedings are although in respect of different plots of lands, but they are between the same parties and common questions of law and facts arise, so both these revisions have been heard together. This judgment will, therefore, govern both these revisions.

(2.) In Criminal Revision No. 1063 the dispute is in respect of three plots, viz., plots Nos. 693, 530 and 367 measuring 0.71 decimals situate in village Bhandari, police station Kabul, district Patna. In Criminal Revision No. 1069 the proceeding was drawn up in respect of eleven plots as described in the order of the learned Magistrate, but it also appears from his order that during the proceeding the dispute between the parties was confined to only seven of the plots of that proceeding. There are thus in all ten plots which are the subject-matter of these two proceedings. In Criminal Revision No. 1063 a proceeding was instituted under Section 144 of the Code of Criminal Procedure on a petition filed by Mossamat Bibi Husna dated 1-6-1963. This proceeding was subsequently converted into one under Section 145 of the Code of Criminal Procedure on 16-8-1963. In Criminal Revision No. 1069 a proceeding under Section 144 of the Code of Criminal Procedure was started on the petition of Mahammad Ainul Haque, the husband of Mossamat Bibi Husna and this proceeding was also converted into one under Section 145 of the Code of Criminal Procedure on 8-1-1964. For the sake of convenience and easy reference hereinafter I would refer Mossamat Bibi and her husband Mahammad Ainul Haque as first party because they were the first party in the proceedings mentioned above and the present petitioner Maqsood Alam as the second party. The case of the first party in both the proceedings was shortly to the effect that the lands which are the subject-matter of dispute originally belonged to one Mossamat Alihan who died leaving Mossamat Tanizan as her sole heir. The first party that is, Mossamat Bibi Husna and one Gulam Rasool purchased the lands which are the subject-matter of the two proceedings from Mossamat Tanizan by virtue of a registered deed of sale dated 3-3-1937. It was a joint purchase by the two persons, mentioned above and admittedly the recital of the deed shows that they were purchasers to the extent of half each. It was the further case of the first party that plot No. 367 of Criminal Bevision No. 1063 and four plots of Criminal Revision No. 1069 had been mortgaged by Mossamat Alihan herself, that is, the original proprietress in favour of one Azimuddin by a registered mortgage deed dated 7-8-1934, who had assigned the mortgage in favour of one M. A. Bashid. The first party after having purchased the property along with Gulam Rasool came in possession of the same and as early as in the year 1944 the first party redeemed the mortgage by paying off the assignee of the mortgagee, mentioned above, and, therefore, the first party claimed that she was in exclusive possession of the entire property conveyed by the sale deed by Mossamat Tanizan as she was looking after the interest of Gulam Rasool also and further that she came in exclusive possession of those plots which were in mortgage and had been redeemed by her. The first party came to know that the lands which are the subject-matter of the proceedings had been sold at an auction sale held under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954) and after having come to know this, the first party tried to find out if Gulam Rasool had been declared as an evacuee and for this a petition was filed by the first party before the Assistant Custodian, Patna making a prayer that she may be allowed to inspect the record declaring Gulam Rasool as an evacuee, but the report of the office was that there was no such record traceable. It was contended on behalf of the first party that Gulam Rasool was not an evacuee. The property had not been declared to be an evacuee property and that the first party had been coming in exclusive possession of the same and as such the first party should be declared to be in possession.

(3.) Now the case of the second party briefly stated was to the effect as follows: That there was a partition between Mossamat Bibi Husna and Gulam Rasool and in pursuance of such a partition the three plots which are the subject-matter of Criminal Revision No. 1063 and the seven plots which are the subject-matter of Criminal Revision No. 1069 had been allotted to the share of Gulam Rasool who was in exclusive possession of the same. Gulam Rasool is said to have migrated to Pakistan about 15 or 16 years ago and his property, therefore, became an evacuee property. The Evacuee Department, therefore, put up these lands for auction sale held under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and this auction sale was held on 30-10-1962. The second party Maqsood Alam purchased the property at the auction sale. He also deposited the required purchased money in Court and came in possession of the lands and also claimed to have grown rabbi crop. It was urged that Mossamat Bibi Husna, the first party thereafter filed objections, but these were all rejected ultimately by the Deputy Chief Settlement Commissioner on 20-6-1963. The second party, therefore, claimed to have been in exclusive possession of the lands and denied the possession of the first party.