Yaqoob Ali Khan vs Devendra Singh Bedi and Another

R.K. Saksena, J.—The litigation has had a chequered career covering over a quarter of century and it is certain that even this order will not bring the fall of curtain upon it. A large tract of land measuring about 200 bighas of land in Kichha, district Nainital became subject matter of proceedings u/s 145 of the old Code of Criminal Procedure and on attachment in 1963 A.D. became custodia-legis. The parties are ad-idem that the Station Officer, Police Station Kichha, district Nainital, was directed to act as supurdar of the subject of dispute which remained fallow at least till 14-8-1987, the date on which delivery of possession over it was effected by the supurdar, who was Station Officer, Police Station Kichha, District Nainital in favour of the opposite party No. 2 through his mukhtar-am.

A brief history of litigation may be useful for appreciating the points canvassed before me. The Magistrate seized of the matter, exercising powers u/s 146 of the Old Code of Criminal Procedure referred to the matter to Munsif, having jurisdiction who, in his turn, recorded a finding on 27-11-1983 in favour of the Petitioner, Yaqoob Ali. Immediately thereafter, opposite party No. 2 filed a civil suit for setting aside that order and for declaration that the disputed property belongs to him. The suit No. 292 of 1963 in the Court of the Munsif, Nainital, was decreed on 16-6-1976. The unsuccessful party, namely, Yaqoob Ali vainly assailed that decree in the district court and has now approached this Court on civil side. It is not necessary to refer to those proceedings. Suffice it to say that from the District Civil Court Yaqoob Ali was unsuccessful in January, 1983.

This is not in controversy that during this long period of 20 years starting from 1963 to January 1983 the property remained custodia-legis and the Station Officer, Police Station Kichha, District Nainital remained its supurdar. An application was moved by opposite party No. 2 before the Magistrate concerned for release of the property in his favour in accordance with the decision of the District Civil Courts, primary being of the court of the first instance, namely, the Munsif, Nainital, dated 16-6-1976. After inviting objections and hearing the parties, the Magistrate passed an order on 25-1-1983 (annexure III) directing the Station Officer, Police Station Kichha, District Nainital to deliver possession of the land in dispute to the opposite party No. 2. This order was assailed by the Petitioner by means of a revision before the Sessions Judge, which was dismissed on 9-7-1986. During the pendency of that criminal revision, the operation of the order dated 25-1-1983 had been stayed which was vacated on 9-7-1986. Thereafter, the opposite party No. 2 gave an application before the Senior Superintendent of Police, Nainital on 31-7-1987 praying that the Station Officer, Police Station Kichha, be directed to release the disputed property in his favour in the light of the order dated 25-1-1983 passed by the Magistrate. The application reached the Station Officer, P.S. Kichha, who after making an enquiry from the Petitioner, Yaqoob Ali as to whether the operation of the order dated 25-1-1983 had been suspended by any court and on receiving answer in the negative, delivered possession over the subject of the dispute to the opposite party No. 2, through his Mukbtar-am on 14-8-1987.

The Petitioner has prayed through this petition moved u/s 482 Code of Criminal Procedure that the order dated 25-1-1983 and 9-7-1986, respectively passed by the Magistrate and the revisional court, be quashed.

I have Heard the learned Counsel for the parties. A preliminary objection was raised on behalf of the opposite party No. 2 to the effect that after the dismissal of the criminal revision filed by the Petitioner in the Court of Session against the order dated 25-1-1983, it is not open to the Petitioner to pray for invoking the powers of this Court u/s 482 of the Code of Criminal Procedure. Reliance was placed on the decision of the Supreme Court reported in JT 1987 637 Rajan Kumar Manchanda v. State of Karnataka. In this decision, the bar imposed by Section 397 Sub-clause (3) of the Code of Criminal Procedure was considered and it was remarked that:

Merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked, the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of Section 397(3) of the Code could be labelled as one u/s 482.

The principle of law enunciated in this Division Bench decision, can be safely applied in the instant case. Learned Counsel for the Petitioner drew my attention towards some decisions of this Court in which it has been held that the inherent powers of this Court are very wide and such powers can be invoked even if no revision lies in view of Section 397(3) of the Code. These decisions lose their importance and the principles laid down therein cannot be implemented now in view of the pronouncement of the Supreme Court. Thus, the preliminary objection prevails and this petition must fail as not maintainable.

Even on merits, there is no substance in the petition. It may be recalled that when the delivery of possession was effected in the light of the order dated 25-1-1983, there was no stay order, of any nature whatsoever, from any court. True, the Petitioner had given an application before the Magistrate to the effect that the possession be not delivered to opposite party but the same had been ordered to be put up for hearing on a date which fell after 14-8-1987. The Petitioner failed to press before the Magistrate that the operation of his order dated 25-1-1983 was to be suspended till the application moved by him was finally disposed of. The learned Counsel for the Petitioner urged that in the absence of a ''parwana'' which was to be issued from the office of the Magistrate concerned to the Station Officer, P.S. Kichha, the latter could not deliver possession. No such form is prescribed in the Code of Criminal Procedure and the Rules followed in the Civil Courts for sending ''parwana'' to Court Amin cannot be applied in criminal proceedings. Moreover, in the instant case, the supurdar was none else but the Station Officer of the Police Station and a direction had already been given to him in the order dated 25-1-1983 to hand over possession to the opposite party No. 2. Besides other documents, a copy of the order dated 25-1-1983 was also attached with the application that had been given by the opposite party No. 2 to the Superintendent of Police, Nainital. It is, thus, clear that the supurdar/Station Officer, P.S. Kichha, Nainital did not act illegally while complying with the directions of the Magistrate given through his order dated 25-1-1983. It is notheworthy that the land in dispute had remained without any cultivation for such a long time. It will now be brought under cultivation of the opposite party No. 2 from whom, damages can be claimed by the Petitioner if he finally succeeds in establishing his title to the disputed property.

For these reasons, I dismiss the petition.