EMPEROR Vs. ZAHIRUS SAYED ALVI

JUDGEMENT

(1.) 1. Khan Bahadur Zahirus Sayed Alvi, a prominent land-holder in the Hoshangabad District, has been engaged in litigation with his nieces concerning their respective shares in the family property for a considerable number of years. In miscellaneous Case No. 7 of 1930 proceedings were taken Under Section 145, Criminal P.C., on the complaint of Khan Bahadur Zahirus Sayed Alvi that one of his nieces Mt. Hijazunnisa Begum had taken possession of his malguzari house in the village of Pemtala and he was unable to obtain possession and feared a breach of the peace. The lady claimed to be in possession of a share of the village and alleged that in pursuance of her right she was entitled to a share in the malguzari house and had taken up her abode in the verandah. On 4th September 1930 the Subdivisional Magistrate passed orders in the case. The operative part of the order, as far as the house is concerned, ran as follows: The house which is the subject of dispute belongs to Khan Bahadur. It was the occupation of the niece that started the trouble. The non-applicant has not shown that she at any time within two months had possession over the house. There is nothing to show that she had joint possession over the house. It is true that she has got 0-2-6 share recorded in her name but it is not a proof that the house also was in her possession. I therefore order that Khan Bahadur Z.S. Alvi who has been in possession of the house through his servant be again placed in possession of the same. The non-applicant is forbidden to interfere till Khan Bahadur is evicted from it in due course of law.

(2.) THERE was also a claim that the lady had taken wrongful possession of the village or of land therein. No corresponding order was made in respect of the village as the Magistrate held that there was no allegation that there Was any land in the village which had been occupied by her and that in view of the fact that she was recorded as a 0-2-6 share-holder and has got a right to be in the basti no contingency had arisen to declare that the Khan Bahadur should be placed in possession of the village. The order was duly passed in Form No. 22, Schedule 5, declaring Khan Bahadur to be in possession of a malguzari house in Pemtala and declaring him entitled to retain possession. Against this order the non-applicant applied in revision to the Sessions Judge but without success and her application was dismissed on 17th November 1930. In the following. January, Khan Bahadur put in an application to the effect that there had been no obedience of the Court's order forbidding the opposite party from interfering with his possession and he asked that the order in Form No. 22, Schedule 5, Criminal P.C., should be served on Mt. Hijazunnisa Begum and her servants who, he alleged, were still in possession of the house and its premises. He filed a sketch map showing the house and its compound. This shows the main house, a shed attached to it which apparently had been in existence as long as the house itself and a recently erected hut a few yards from the house but within the compound.

(3.) TH September 1930. The order was proclaimed in the village on 17th February 1931 or thereabout. At that time the non-applicant Mt. Hijazunnisa Begum had built a house on the land of the applicant's house, vide applicant's witnesses now examined. The applicant now asks that the whole area of the house be restored to his possession. I fail to see why the applicant should have sat quiet so long. The Magistrate in his order in para. 7 stated "that the applicant be placed in possession of the house and the non-applicant was forbidden from making any interference with his possession. It is deemed that the applicant was put in possession of the house by the proclamation of the Court. If interference with such possession were to be objected to by the applicant, he should have taken action in time by moving this Court. I believe it would be improper to prosecute the non-applicant after such lapse of time, for disobedience of the order of the Court. Hence the application is rejected. 4. Against this order refusing to take action an application has now been filed. The learned District Magistrate in showing cause admits that the reason given by the Subdivisional Magistrate for refusing to grant the application on the ground of lapse of time cannot be justified; but he maintains that the order is substantially correct as the applicant's statement, that there has not been compliance: with the order Under Section 145 was false, and that his own subsequent enquiries show it to be false. He continues that the applicant is trying to deceive the Honourable Additional Judicial Commissioner (as he tried to deceive the Subdivisional Magistrate) and that the applicant deserves no consideration from any Court of justice and that he proposed on return of the file to proceed against the applicant Under Section 182, I.P.C., that is to say, to direct his prosecution for giving false information to a public servant in order to cause him to use his lawful power to the injury of another person. In making these remarks the learned District Magistrate has gone considerably beyond the reference in respect of which he was asked to show cause.