B.P.Singh - (1.) THIS is an application for revision against the judgment and order dated 17th August, 1991 passed by the Additional Sessions Judge (Special Judge) Bareilly, in Criminal Revision No. 142 of 1991 Liaqat Ali and others v. Sajjad Ali and others setting aside the order dated 6th March, 1991 passed by the Additional City Magistrare, Bareilly, in Criminal Case No. 9/90 under section 145 CrPC P. S. 3aradari, Bareilly City. The following facts are not disputed.
(2.) ACTING on a Police report dated 17-6-1979 that there was an immediate apprehension of breach of peace regarding the disputed land situate in Mohalla Sufi Tola P. S. Baradari district Bareilly, the City Magistrate passed a preliminary order on 17-6-1979. Thereafter, the land in dispute was allotted by the City Magistrate, Bareilly on 25-10-1979. Sajjad Ali, the applicant was the first party in the case while Shaukat Ali was the second party in the case before the learned Magistrate. Subsequently, Nawab Ali Samdhi of Shaukat Ali and Ashfaq Ali were also made as second party in the case. Both the first party as well as the second party staked their claim to the land in dispute claiming that they were the owners in possession of the same. Written statements were filed by Sajjad Ali, Shaukat Ali, Nawab Ali and Ashfaq Ali. The case remained pending in the court of the City Magistrate and none of the parties has stated before me the reasons as to why the case remained pending for such a long time. Shaukat Ali died on 7-1-1991 and Nawab Ali had predeceased him some time in September, 1990. The learned Magistrate found on 24-1-1991 that the second party was absent. Consequently, 6-3-1991 was fixed in the case for ex parte hearing. After hearing the learned counsel for the first party, the Additional City Magistrate, Bareilly, decided the case on 6-3-1991 and held that the first party Sajjad Ali was in possession over the disputed land. In the order dated 6-3-1991 there is no mention of the fact that Shaukat Ali and Nawab Ali were not alive on 24-1-1991. Aggrieved by the judgment and order dated 6-3-1991, Liaqat Ali, Sharafat Ali, Zulfiqat Ali and Sharif Ali sons of Shaukat Ali and Smt. Quresha Begum widow of Nawab Ali filed Criminal Revision No. 142 of 1991 in the court of Addl. Sessions Judge (Special Judge) Bareilly Criminal Revision No. 142 of 1991 was allowed by the Additional Sessions Judge (Special Judge) Bareilly on 17-8-1991 and the case was remanded back to the trial court with the direction that the revisionists before him were to be given an opportunity to file written statements and thereafter both the parties were to be given an opportunity to lead their evidences.
(3.) IT is against this order dated 17-8-1991 that Sajjad Ali has come in revision. I have heard the learned counsel for the parties at some length. The main contention of the applicant's counsel is that the judgment and order of the learned Sessions Judge did not suffer from any illegality. On the other hand, the main thrust of the argument of the learned counsel for the opposite parties is that the order dated 6th March, 1991 was a nullity because it was passed against dead persons and as such, the judgment and order dated 17-8-1991 did not call for any interference. It is not disputed that Shaukat Ali died on 7-1-1991 and Nawab Ali had predeceased him some time in September, 1990. It is also not disputed that Sajjad Ali, the applicant, who is a close neighbour of Shaukat Ali and Nawab Ali, did not bring the fact of their death to the notice of the court. Opposite parties Liaqat Ali, Sharafat Ali, Zulfiqar Ali, Sharif Ali and Smt. Quresha Begum have contended that they had no information that Shaukat Ali and Nawab Ali were contesting the case in the court of the City Magistrate and consequently they could not apply for substitution in the proceeding before the learned Magistrate. It was only when Sajjad Ali went to take possession over the land in dispute on the basis of the order of the City Magistrate dated 6th March, 1991 that they came to know about the case in question.;