ABDUL GHAFFAR AND ANOTHER Vs. STATE
LAWS(ALL)-1965-11-38
HIGH COURT OF ALLAHABAD
Decided on November 18,1965

Abdul Ghaffar And Another Appellant
VERSUS
STATE Respondents


Referred Judgements :-

THAKUR JAIKRIT SINGH AND ORS. V/S. SOHAN RAJ [REFERRED TO]


JUDGEMENT

Gyanendra Kumar, J. - (1.)This is a revision arising out of proceedings under Sec. 145 Code of Criminal Procedure on the following admitted or proved facts and circumstances:
One Niaz Ali was the owner and sir holder of the five plots in question situate in village Bhawanpur. On 17. 4. 1953 he executed a registered waqf deed in respect of those plots measuring 7 bighas odd and certain other property and appointed himself a3 the first Mutwalli. The waqf deed further provided that after the waqif's death, his wife Smt. Hameedan would be the next Mutwalli and that after -her death the mutwalliship of the Waqf would devolve upon the person who Would at that time be the Mutwalli of the mosque known as Masjid Pachpeda. On 23.2.1954 Munshi and Ausaf Ali, nephews of the said Niaz Ali, filed suit No. 147 of 1954 against Smt. Hamtedan (widow of Niaz Ali), Abdul Ghaffar, first party No. 1 and another for cancellation of the waqf deed but it was dismissed by the Munsif by his judgment and decree dated 28.8. 1959. This decree was upheld right -tip to the High Court in second appeal. On Niaz Ali's death some time towards the end of 1953, the property devolved upon his widow Smt. Hame -Man as the next Mutwalli. Daring the pendency of the aforesaid suit Smt. Hameedan executed a Mukhtar -nama -aam (general power of attorney) in favour of Abdul Ghaffar (first party) on 22.5.1954, inter alia, for cultivating the plots in question and harvesting their crops as also for irrigating them. Smt. Hameedan died on 1.9.1964 and in terms of the waqf nama, on her death, Aas Mohammad (second party) became the next Mutwalli, inasmuch as at that time he was holding the office of the Mutwalli of Masjid Pachp -edit It may also be mentioned that Abdul Sattar (first party No. 2) is the own brother of Abdul Ghaffar (first party No. 1). Soon after the death of smt. Hameedan, there arose serious differences between Abdul Ghaffar and his brother Abdul Sattar on the one hand and - Aas Mohammad Mutwalli on the other. The result was that on 16.10.1964, the first party moved an application before the Superintendent of Police, Meerut, alleging that they had been in cultivatory possession of the disputed plots since about 15 years and that Aas Mohammad was near trying to dispossess them. On 23.10. 1964 the police reported that these was imminent danger of the breach of peace and recommended immediate attachment of the disputed plots, Accordingly the S.D.M., Meerut, passed a preliminary order on 24.10.1964 inconsequence whereof the plots were attached on 29.10.1964. Both the parties filed their respective written statements. In support of their case the first party filed affidavits of five persons (including Abdul Ghaffar) (sic) say that the disputed plots had been in their tenancy for the last 15 or 16 years. Inter alia, the first party also filed copies of the order of the Tahsildar dated 1.7.1957 directing the name of the first party to be recorded I in column No. 9 of the Khasra; extra(sic) of khasras for the years 1365 F, 136 (sic) 1368F, 1369F, 1371F and 1372F, wherein the names of the first party are noted in the remarks column; extracts of Khatauni for the years 1368F, 1369 and 1372F, in which their names are recorded under Zimin 9; rent received for the years 1358F and 1359F alleged to have been issued by Niaz Ali and 13 other receipts of Abpashi in which the names of the first party are noted as depositors of the canal dues.

The case of Aas Mohammad second party, was that during lifetime Niaz Ali was cultivating the plots as his Sir and after his desta his widow Smt. Hameedan, as Mutwalli of the waqf, was getting the same cultivated on Batai by her mukhtar aam, Abdul Ghaffar (first party) and that a few weeks before her death on 1.9.1964, she had called the second party as well as Abdul Ghaffar (first party) on 10. 8.1964 and through him got the possession of the property delivered to the second party. The second party, also filed affidavits of 9 persons as well as a copy of the extract of khatauni for the year 1372 P. in which in the column of tenant in chief the name of the waqf is recorded. He also filed a copy of the statement of Abdul Ghaffar first party recorded on 11. 8. 1959 in suit on. 147 of 1954 (Munshi and Anr. v/s. Smt. Hameedan and others) in which Abdul Ghaffar had admitted in his examination in chief that he Was related as nephew to Niaz Ali and Smt. Hame edan, that since the death of Niaz Ali, his widow Smt. Ha meed an had been in possession of the land, that in his life time Niaz Ali had let out to him about 23 or 24 kham bighas of land by means of lease deed; that as long as Niaz Ali remained alive, he alone was in possession of the property and no body else came into its possession; that Munshi and others had surreptitiously got their names entered over the disputed land by paying a bribe of Rs. 500/ - to the Patwari and that he was the Mukhtaream of Smt. Hame -edan. In his cross -examination, however, Abdul Ghaffar stated that he was cultivating the plots in dispute from about 2 or 3 years before the execution of the waqf deed but no written lease was executed in respect thereof and that Niaz Ali was getting the plots cultivated till the time of his death. He further admitted that Smt. Hameedan had her own bullocks and that five plots of village Bhawanpur were being cultivated by him on Batai, as a consequence whereof he was taking half of the produce and was giving the other half to Smt. Hameedan. On a consideration of the affidavits and documentary evidence produced by the parties, the S.D.M. by his order dated 30.11.1964 held the second party (Aas Mohammad) to be in possession over the disputed plots and released the same in his favour.

The first party went up in revision, but the Additional District Magistrate, Meerut, by his order dated 3.7. 1965 upheld the judgment and order of the S.D.M.; hence this revision by the first party.

(2.)The learned Counsel for the parties have argued this case at great length. Mr. C.S. Saran appearing for the first party has urged that even according to the evidence of the second party it was the first party (Abdul Ghaffar and. Abiul. Sattar) who was, in actual cultivatory possession of the plots, even though that cultivation may be as Mukhtaream of Smt. Hameedan, on half Batai system. His contention is that for the purposes of Sec. 145 Code of Criminal Procedure the only possession with. Which the courts are concerned is the actual physical possession of a party on the date of the preliminary order or within two months next thereof. In other words, even if the possession of a party is with the permission of the other party, such permissive possession would entitle the possessor to retain the same for the purposes of Sec. 145 Code of Criminal Procedure i.e. the man who has his feet on the land or plots in question would be entitled to protection Under Sec. 145 Code of Criminal Procedure. In support of his contention Mr. Saran has relied upon the case of Thakur Jaikrit Singh and Ors. v/s. Sohan Raj (1) (AIR 1952 Raj. 63).
(3.)In the above case it was laid down that although as against third parties the possession of the servant or agent would be deemed to be that of the master or the principal, but where there is a dispute between the master or the principal on the one hand and the servant or agent on the other about the possession of the property, then the word 'possession' will have to be interpreted in the sense of actual physical possession, inasmuch as Sec. 145 of the Code of Criminal Procedure deals with disputes only about actual physical possession; and as such, the provisions thereof can be invoked in a dispute between a master and a servant or principal and agent themselves in respect of possession of any immovable property. Therefore, if the master or the principal is in constructive possession through his servant or agent & the latter claims possession in himself, it would be the possession of the servant or the agent, which would be maintained in proceedings under Sec. 145 Code of Criminal Procedure. I am in respectful agreement with this proposition of law. In the instant case, let us therefore see whether Abdul Ghaffar who was the Mukhtare am of Smt. Hameedan, and his brother Abdul Sattar were in actual physical possession of the disputed plots on 24.4.64, when preliminary order was passed or within two months next there -of. In this connection, it may be noted that apart from filing a joint application and joint written statement along with his brother Abdul Ghaffar, Abdul Sattar did not even file his affidavit to show that he was in actual physical possession of the disputed plots. According to the affidavits of Abdul Ghaffar and four other persons, who supported because, the possession of the first party was by means of ploughing and sowing the land as well as by paying its rental.
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