Decided on February 12,1965



- (1.)THIS is an application under Article 227 of the Constitution by Rabba Babba Bibi, widow of Masih Uddin and Firoz Ahmad the son-in-law of Masih Uddin. The relief sought is for the quashing of the orders of the Munsif, West Allahabad dated the 19th May 1959, the order of the Sub-Divisional Officer, Chail dated the 13th August 1963 and the order dated the 13th of January 1964 passed by the Second Temporary Civil and Sessions Judge, Allahabad.
(2.)THE facts leading up to this writ petition are involved and litigation between the parties has been protracted. A further complication has been that Mohd. Mustafa, the son of Masih Uddin, the original subtenant now opposite party No. 4 is in service in Pakistan. Raj Narain and Swamp Narain two brothers were tenants in chief. Masih Uddin was recorded as sub-tenant. He died in 1955 leaving behind the aforesaid son Mohd. Mustafa and widow, Smt. Rabba Bibi and the daughter who is married to Firoz Ahmad petitioner No. 2, After the demise of Masih Uddin, Rabba Bibi's name was recorded as subtenant. Raj Narain moved an application for correction of the records on the ground that on the demise of Masih Uddin the sub-tenancy was surrendered. This was denied by Rabba Bibi but her name was directed to be removed. Thereupon Rabba Bibi filed an appeal which was allowed on the 22nd of June 1959. In between Raj Narain having applied under Section 145 of the Cri. P. C. an attachment was ordered on the 21st November, 1956. The Sub-Divisional Magistrate (hereinafter referred to as the S. D. M.) did not find it possible to decide the dispute himself and therefore the matter under Section 146, Cri. P. C. was transferred to the Munsif, West Allahabad by his referring order dated the 24th July, 1957. He had by that time recorded the statements and other evidence and the record of the proceedings was forwarded to the said Munsif who was required to decide the question under Section 146 of the Cri. P. C. The Munsif fixed the 18th of May 1958 for recording the evidence but that being a Sunday it was taken up on the 19th May 1958. Raj Narain was absent but Rabba Bibi was present. The Munsif fixed the 2nd July, 1958 for delivering its finding under Section 146, In the meanwhile, however, an application was moved by Raj Narain saying that the was misinformed of the date, Upon this application on the 28th May 1958, the Munsif passed the following order: Issue Notice. Stay delivery of finding in the meantime. Steps by the 7. 7. 1958. The Munsif, however, forgot the existence of this stay order and proceeded on the 2nd of July, 1958, to give his finding under Section 146, Cri. P. C. which was in favour of Smt. Rabba Bibi in the absence of any contest by Raj Narain and she was held to be in actual possession during the relevant period. It was further ordered that the record of the case be returned to the court concerned with the above finding. The parties appeared there on the 23rd July 1958 and that order was signed1 and dated and it became final so far as the-Munsif was concerned.
(3.)THEREAFTER when the attention of the Munsif was drawn to the fact of his own stay order he reviewed his order and set it aside on the 13th January 1959 and went on to pass another order dated the 15th of May, 1959 holding that Raj Narain was in possession of the land in dispute on the date of attachment. The parties were directed to appear before the S. D. M. on the 30th May, 1959. The S. D. M. refused to accept the second finding as, according to him, the Munsif had no jurisdiction to review or revise the finding given earlier and he by his order dated 20. 1. 1961 under Section 145, Cri. P. C. in confirmity with the first finding of the Munsif declared Smt. Rabba Bibi to be in possession.

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