- (1.)This reference has been made by the learned Civil and Sessions Judge, Allahabad recommending that the order of the Magistrate dated 31-5-1965 releasing the house in dispute in favour of two brothers Abdul Aziz Khan and Abdul Hamid Khan and prohibiting the Applicant Haji Abdul Aziz Khan from interfering with their possession may be set aside and it be held that the property being in joint posession of Abdul Aziz Khan and Haji Abdul Aziz Khan the proceedings under Section 145 Code of Criminal Procedure are misconceived and deserve to be quashed.
(2.)Shortly stated, the facts are as follows. On 17-10-62 Abdul Hamid Khan opposite party No. 2, (since deceased) sold house No. 197/127, situate in Mohalla Tulsipur Allahabad to Haji Abdul Aziz Khan Applicant for a consideration of Rs. 2,000/- and the vendor delivered possession of the house to the Applicant. It was alleged that Abdul Aziz Khan opposite party No. 1, brother of the vendor, forcibly dispossessed the vendee from the house in question on 23-10-62 and himself occupied the premises. This created tension between Abdul Aziz Khan and the vendee on the one hand and the vendor Haji Abdul Aziz Khan on the other. The police reported for action under Section 145, Code of Criminal Procedure and the Magistrate being satisfied that there was an apprehension of breach of the peace passed a preliminary order on 6-11-62 attaching the subject matter of dispute.
(3.)The parties were called upon to file their written statements, documents and affidavits in support of their respective claims, which they did. On a consideration of the documents and the affidavits filed in the case the Magistrate came to the conclusion that the vendor Abdul Hamid Khan had not delivered possession of the house to the vendee Haji Abdul Aziz Khan. For this he strongly relied on an affidavit filed by the vendor Abdul Hamid Khan wherein he had stated that after the sale deed he had not relinquished possession over the house. The Magistrate, it appears failed to notice that in his earlier affidavit Abdul Hamid Khan (the vendor) had clearly stated that soon after the sale deed he delivered possession of the house to the vendee. So far as the affidavit evidence of Abdul Hamid Khan is concerned it was contradictory and inconsistent and the Magistrate was, therefore, in error in accepting the same in support of the case set up by opposite party No. 1.