ABDUL GAFOOR Vs. STATE

JUDGEMENT

(1.) THIS is a revision by Abdul Gafoor and seven others and is directed against the order of Shri N. N. Bhatnagar, Magistrate First Class, No. 2, Jaipur City dated 22. 1. 1959 passed in a proceeding under sec. 145 Cr. P. C. and maintained by Shri P. L. Agarwal, Additional Sessions Judge, Jaipur City dated 11. 6. 1959 in the exercise of revisional jurisdiction. 2. The facts briefly stated are as follows: That there exists a Durgah known as Hazrat Amani Shah Sahib out-side Chandpole Bazar near Nallah Amani Shah in the City of Jaipur. It is not in dispute that Abdul Waheed son of Hazi Karim Bux, Rasta Jailalji Jaipur who was opposite party No. 1 in the original proceedings under sec. 145 Cr. P. C. along with others had been managing the affairs and property attached to the said Dargah since long and had been exercising their powers of management peacefully until the present dispute. In October, 1957 the petitioners who were opposite parties No. 2 & 3 in the original proceedings under sec. 145 Cr. P. C. , raised a controversy over the proper management of the Dargah and its property. Their claim is that the Dargah has been in the exclusive management of Hejum Farosh of the Chandpole Bazar and Abdul Waheed along with others, was merely managing the Dargah on behalf of the "hejum Farosh. " They claim a right to constitute and reconstitute managing committees for the Dargah. In the year 1957 they found that the management of Abdul Waheed and others was not satisfactory and therefore, thought of substituting a proper management for the Dargah property. Abdul Waheed opposite party No. 1 disputed the claim of the opposite parties No. 2 & 3 asserted on behalf of the "hejum Farosh" and claimed that he along with others was managing the Dargah on behalf of the entire Muslim community of the Jaipur City and that the opposite parties No. 2 & 3 have no business to interfere with their management. On 20. 11. 1957 opposite parties No. 2 & 3 and their supporters held a meeting and set up a committee for drawing up a constitution for the management of the said Dargah and appointed Mohammed Shafi as its Chairman. It may be mentioned here that Abdul Gafoor was the Joint Secretary of the Managing Committee. " He, however, had his differences with the managing committee and joined the parties No. 2 & 3 and placed his resignation from the office of the Joint Secretary, at their disposal. His resignation was accepted by the opposite parties vide resolution dated 20. 11. 1957. Abdul Waheed did not accept as binding the resolution passed at a meeting organised by the opposite parties No. 2 & 3. He thought of having a mandate from the Muslims of Jaipur in general. It appears that at his instance a general meeting of the Muslims of Jaipur including Hejum Farosh was convened on 24. 11. 1957 which resolved that the existing management should continue. Thereafter steps for amicable settlement by negotiations or through arbitration were taken but they did not succeed. On 27. 5. 1957, the opposite parties No. 2& 3 at a meeting adopted a constitution for constituting a managing committee and also constituted a managing committee. On 28. 5. 1958, the opposite parties no. 2 & 3 accompanied by a large number of persons went to the said Dargah and in the absence of Abdulwaheed took forcible and wrong ful possession of its properties. Abdulwaheed was at Sikar on that day. On his return from Sikar, on 29. 5. 58, Abdulwaheed wanted to report the matter to the police but some respectable persons offered intervention and this delayed the submission of report by Abdul Waheed, in the police. Further efforts of compromise having failed a report was eventually lodged on 2. 6. 1958. The Police after inquiry applied to the City Magistrate for taking proceedings under Sec. 145 Cr. P. C. against opposite parties No. 1 & 2 only. A preliminary order was passed on 22. 7. 1958 and the opposite parties No. 1 & 2 were called to file their replies on 29. 7. 1958. During the course of the proceedings some persons applied for being added as parties and they were ordered to be joined and have been grouped as party no. 3. The Magistrate after receiving written replies from all the parties and making necessary inquiry came to the conclusion that the opposite party No. 1 was in peaceful possession of the Durgah property for a long time until 21. 5. 58 when opposite parties no. 2&3 forcibly and wrongfully dispossessed him. He, therefore, declared that opposite party no. I was entitled to the possession of Dargah Amani Shah and its properties until evicted therefrom in due course of law and forbade the opposite parties No. 2 & 3 from disturbing such possession until such eviction. The Magistrate further passed an order u/s. 145 (6) Cr. P. C. that the possession of the above referred property be restored to opposite party no. 1 who was forcibly and wrongfully dispossessed. The opposite parties no. 2 & 3 filed a revision in the Court of the Additional Sessions Judge, Jaipur City who agreed with the conclusion of the First Class Magistrate and dismissed the revision. Hence the opposite parties no. 2 & 3 have approached this Court in revision. 3. In view of the objection of the opposite party here that the petitioners have raised contentions in variance with those contained in the original revision petition, it will be proper and relevant to refer to the revision petition in a little detailed manner. 4. In para no. 2 of the revision petition, there is a clear admission of the petitioners that Abdul Waheed and his party were admittedly incharge of the properties of the aforesaid Dargah and were maintaining it as Mutwalli till 20. 11. 1957. In para No. 7 it was recited that the learned lower Court below has erred in law in not correctly deciding whether the dispossession took place forcibly and overlooked the following points. Grounds No. 8 and 9 of the revision petition related to the finding whether actual use of force was necessary or not to constitute forcible dispossession. Grounds No. 10 and 11 were directed against the action of the Magistrate in refusing to summon certain witnesses for the purpose of examination. In ground No. 12 the petitioner urged that the learned lower Court erred in law in taking into consideration the documents produced by the the opposite party with respect to the question pertaining to the right to manage the Dargah or to possess it as the enquiry with respect to the title was wholly foreign to the scope and intent of the proceeding under sec. 145 Cr. P. C. 5. During the course of arguments, however, the grounds that were taken in the revision were not: pressed as such. On the other hand Mr. Chatterjee raised the following contentions. 6. It was urged in the first instance that the possession that can be pleaded in a proceeding under sec. 145 Cr. P. C. must be possession based on a claim of right to possession. The possession of an agent or a servant which is permissive, can not give a party to the proceeding a locus standi as against his principal or master. Reliance was placed in this connection upon Nritta Gopal Singh Vs. Chandi Charan Singh (1) and Balak Das and another Vs. Bhagwan Das alias Bhagwan Bhagat and another (2 ). Referring to the factual position Mr. Chatterjee referred to a judgment of the State Council Jaipur dated 18. 5. 1916 marked Ex. C on the record and invited my attention to the following statements in that Judgment:- ******** There is no one in the line of Amani Shah who can claim inheritance. The Chatiars of Chandpole Bazar use to appoint Jaribkas, that is, persons discharging ministerial duties and used to dismiss them if they were not satisfied with their work. *** The reference was to the consent of Khatiars in the appointment of Khursheedali Shah as the Mutwalli. From these statements Mr. Chatterjee wants me to hold that Khatiyars of Hejum Farosh should be treated as the real managers of the Dargah and Abdulwaheed and his colleagues should be treated as their mere agents and as such, they can not be said in possession on a claim of right of possession. 7. After considering the materials on record, I am unable to accept Mr. Chatterjee's argument. The very judgment relied upon by Mr. Chatterjee shows that the Mutwalli was appointed by the State and not by the Khatiars. The statements referred to are not conclusive to prove that the management of the Dargah really vests in the Hejum Farosh or the Khatiars. On the other hand Abdul Waheed claims that the entire Muslim community is interested in the Dargah property. He relied upon a number of affidavits, a resolution passed at a meeting of the Muslims of the Jaipur City in general and recognition of his status by the Wakf Commissioner. Indeed it is difficult to definitely decide in these summary proceedings this controversial question. Nor am I persuaded to think that it is necessary or even proper to scrutinise complicated questions of title to arrive at a finding on such a question with a view to determine the propriety and maintainability of proceedings under sec. 145 Cr. P. C. Nritta Gopal Singh Vs. Chandi Charan Sing (1) relied upon by the petitioner is a case where on the facts the agency was clearly established. In Balak Das and another Vs. Bhagwan Das alies Bhagwan Bhagat and another (2) also there was sufficient documentary evidence to show that the person whose possession was declared by the Magistrate was in possession of the disputed land as a mere agent and it was, in these circumstances, that the High Court reversed the order. The decisions in these cases turn upon their peculiar facts and indeed they cannot be relied upon for a proposition that the application of sec. 145 Cr. P. C. is ousted merely by a party claiming a superior status and pleading that the other party is his mere agent. Nor can he insist that a Magistrate should hold an enquiry into the complicated question of title to adjudicate upon his plea An enquiry into title and right to possession is ordinarily outside the scope of the proceeding under sec. 145 Cr. P. C. and is prohibited by the language of sub sec. 4. An incidental enquiry into title may be permissible for the purpose of deciding the question of actual possession when the evidence of the parties is evenly balanced or when the property does not admit of actual physical possession but it can not be instituted for disregarding actual possession. Assuming that in rare and exceptional cases when on facts admitted or proved clearly even in a summary enquiry a person's possession is found to be subordinate as an agent or servant, a Magistrate may not declare his possession under sec. 145 Cr. P. C. in a dispute between him and the person claiming actual possession through him as a mere agent or servant it does not follow that the scope of enquiry under sec. 145 Cr. P. C. should be extended beyond the determination of the actual possession and the parties be allowed to agitate complicated questions of title for securing a proper determination of the agency set up by one party. Further it cannot also be laid down as hard and inflexible rule of law that in no case an agent can set up possession under sec. 145 Cr. P. C. The question must turn upon the facts and circumstances of each case. A similar question was considered by Dave J. in Th. Jaikrit Singh, Administrator His Highness, Jodhpur Vs. Sohan Raj (3) and the learned Judge made following pertinent observations : " The term "possession'' connotes an intricate and subtle legal conception, which changes with circumstances. Sec. 145 Cr. P. C. deals with disputes about actual physical possession and, therefore, it cannot be said that in no case its provisions can be invoked, if the dispute is between a master and a servant. " It was a case of a servant and a master but the principle can be easily extended to the case of an agent. Proceeding to judge the case in the light of above principles it will be proper to bear in mind the following facts: (1) Abdul Waheed has been very seriously denying that he was a mere agent of the opposite party nos. 2&3. There is no direct evidence as to when and under what circumstances he was appointed as an agent. As pointed earlier the statements in the judgment of the State Council, Jaiper (Ex. C) do not provide a conclusive and irrebuttable evidence to infer a right of management by Hejumfarosh and the fact of Abdul Waheed being as an agent. There are further materials on record, viz. a resolution at a meeting dated 24. 11. 57 of the Muslims in general, correspondence with the Wakf Commissioner and certain facts emerging from the correspondence between the parties which prima facie lend support to his case atleast for the purpose of these summary proceedings. In these circumstances, I am clearly of the opinion that the petitioners cannot question the order of the trial Court on an argument that Abdul Waheed being mere agent and having no right to possession can not get declaration of his possession under sec. 145 Cr. P. C. 8. The next contention of Mr. Chatterji is that Abdul Waheed was carrying on management in association with other persons and, therefore, it was a case of joint possession. Joint possession can not be declared under sec. 145 Cr. P. C. It is only exclusive possession that can be declared under Sec. 145 Cr. P. C. The argument in this connection was advanced in two aspects: (1) With reference to those persons who are not parties to these proceedings and who are raising no controversy with Abdul Waheed. (2) With reference to Abdul Gafoor who was once associated with Abdul Waheed as Joint Secretary of the Managing-Committee but who later on joined the petitioners' group. The first aspect of the argument cannot be accepted on a proper appreciation of the correct legal position. It is true that when the rival contending parties are found to be in joint possession, none of them can claim declaration of possession under Sec. 145 Cr. P. C. Mahmood Beg and another vs. Ehsan Beg was relied upon by Chaterjee in support of the above proposition. These cases are, however, no authority for the proposition that a group of persons claiming exclusive possession against persons other than those belonging to the group cannot assert its possession under Sec. 143 Cr. P. C. The individual members do no doubt exercise possession jointly but the group as a unit does exercise exclusive possession against the world at large. I do not see why the group as such or any individual member of the group acting on behalf of the group can assert exclusive possession of the group and seek declaration under Sec. 145 Cr. P. C. THIS view is supportable on the language of the section and must be accepted as aiding in achieving the object sought to be achieved by the section viz. of avoiding breach of peace and maintaining status quo. In this view of law, so far as the first set of persons is concerned, the petitioners cannot make any grievance. Abdul Waheed's possession must be deemed to have been declared as representing the group and the members of the group having raised no controversy it is not open to the petitioners to attack the order under Sec. 145 Cr. P. C. As indicated above, a third party cannot be allowed to dispute the claim of exclusive possession on the ground that actual possession is joint: with some others who raise no controversy. 9. With regard to the second aspect, the parties have joined controversy only on the question of fact. They are agreed that a finding that Abdul Gafoor was in joint possession must vitiate an order under Sec. 145 Cr. P. C. Mr. Datta contended that the petitioners did not come forward with such a case and they should not be allowed to make a new case. He also maintained that Abdul Gafoor had severed his connections with Abdul Waheed's group long before the institution of these proceedings. At a meeting organised by the opposite parties No. 2 and 3 on 20. 11. 57 he completely associated with that group and further to indicate and assert his dissociation with the managing committee led by Abdul Waheed, he placed his resignation for the consideration of the meeting. At the meeting his resignation was accepted and no confidence motion was adopted against the other members of the managing committee. In this state of affairs, Abdul Gafoor could not have remained and did not actually remain in joint possession with Abdulwaheed & others in managing the Dargah on the date of the preliminary order or at any time within two months prior to the institution of the proceedings. A reference to record at once reveals that the contention of Mr. Datta is correct and should prevail. Abdul Gafoor has been actively associating with the petitioners i. e. opposite parties No. 2 and 3 and finding fault with the managing committee at any rate from October, 1957. There is not iota of evidence of his having taken part in the management of the Dargah with the managing committee. In the state of affairs prevailing obviously he could not have remained joint with Abdul Waheed and others in managing the Dargah. The extremely belated stand taken by Mr. Chatterjee can not be accepted and I feel no hesitation in rejecting this contention. 10. Lastly, it was contended that Abdul Waheed and others being mere Mutwallies or managers of the Dargah and the Dargah being open to the public at large, it will not be legal and proper to declare his possession under sec. 145 Cr. P. C. as it will prevent others to make proper use of the Dargah. I am not impressed by this argument. In Palaniyandi Pandaram and others Vs. Palaniappa-Thevan (4) a similar question arose with regard to a temple. It was held that "a temple is a building within the meaning of sec. 145 (2), Criminal Procedure Code. A dispute as to the possession of a temple and for such indicia of its possession as the holding of its key is cognizable by a Magistrate under sec. 145. " In Kaji Abdul Majid Shah Vs. Azizuddin and others (6) Vivian Bose J. pointed out the necessity of taking a broad common sense view and held that: Where a dispute regarding the right to receive the offerings at a shrine centres around and depends upon the right to sit in a particular spot the dispute relates either to the possession of the land or to its use. Hence an order can be made under sec. 145 or sec. 147. " Kaji Abdul Majid Shah vs. Mohammad Saheb Azizuddin and others (6) was followed in Hardeo Vs. Ramlal and others (5) where a possession of thekedar on behalf of the managing committee was declared under sec. 145 Cr. P. C. 11. On principle as well as on authority, it will be proper to hold that Mutwallies or Managers of a Dargh exercising peacefully their rights of managements and enjoying actual possession of the Dargah and properties in that right are entitled to assert their possession under sec. 145 Cr. P. C. and to obtain a declaration of their possession and protection against any interference. It must be pointed out that rights of the Mutwallies and managers are defined and definable and a declaration of their possession under sec. 143 Cr. P. C. interpreted in the light of these rights need not in my opinion interfere with the rights of persons entitled to a proper use of the Dargah. The contention of Mr. Chatterjee is based upon a grievance which is not substantial but imaginary. 12. I must mention that the contentions raised by Mr. Chaterjee during the course of arguments were to an extent in variance with the stand taken at earlier stages upto the stage of presentation of the revision petition but I showed a good deal of indulgence in the matter of hearing but after hearing him at length on the contentions I find no force in them. There are no merits in this revision petition which is hereby rejected. .