Shamasuddin Vs. Amjad Ali

Appellate Division Cases

(Criminal)

PARTIES

Shamasuddin alias Mohammad Shamsuddoha and another…………………………………………………………Appellants

= vs =

Mvi. Amjad Ali and others…………………………….Respondents

JUSTICE:

K. M. Hasan C. J.

Mohammad Fazlul Karim J

Abu Sayeed Ahmme J

JUDGEMENT DATE : 27th August 2003.

Code of Civil Procedure,1908: the 561 A of the Code of Criminal Procedure Code of Civil Procedure, 1908: section 144 of the Code of Criminal Procedure

……………. inherent jurisdiction of the High Court Division will be available even to a party who has lost in revision before the Sessions Judge under section 493 A. But it must be clearly borne in mind that the jurisdiction under section 561A is not to be used as an additional or an alternative jurisdiction.

The powers there under being extraordinary in nature should be exercised sparingly and with caution and only where such exercise is essential and justified by the tests specially laid down in the provision itself. It is now well settled that a second revision dose not lie to the High Court Division after taking recourse to section 439A Cr PC , vide shafiqur Rahman Vs. NI Chowdhury, 35 DLR (AD) 127.The jurisdiction under section 561A cannot be invoked for the purpose of examining the correctness, legality or propriety of any finding sentence or order recorded or passed by any inferior criminal court which is done in exercise of revisional jurisdiction under sections 435/439/439A CrPc.

Aminul Islam Vs, Mujibur Rahman and others 44 DLR (AD) 56.Nader Ali Vs. 4 BLD (AD) 7, Abdul Jabbar Vs. Azizul Huq and others 46 DLR 460 Haji Golam Hossain Vs. Abdur Rahman Munshi 40 DLR (AD) 196

Criminal Appeal No. 17 of 1999 (From the judgment and order dated 24 June 1998 passed by the High Court Divison in Criminal Miscellaneous Case No. 3125 of 1997).

Mr. khan Saifur Rahman, Advocate instructed by Mr. Md. Nawab Ali, Advocate-on Record…………………………………….. For the Appellants

Mr. Abdul Malek, Senior Advocate instructed by Mr. A. S. M. Khalequzzaman,Advocate-on-Recored……………………… For Respondent Nos. 1 & 5 Respondent Nos. 2-4: Not represented. Respondent Nos. 6-10 .-Dispensed with.

JUDGMENT

1. Mohammad Fazlul Karim J. The first party appellants seek leave to appeal against the impugned judgment and order of the High Court Division dated 24.6.1998 passed in Criminal Miscellaneous Case No. 3125 of 1997 (arising out of Criminal Revision No. 72 of 1987 and NGR Case No. 132 of 1978) making the rule disposed of directing the first party appellants to go to Civil Court for decision about title and possession over the suit property within one year from date and until a decision is given by the civil Court in respect of the disputed property the receiver shall continue in possession over the suit property the receiver shall continue submit accounts of income of the property to the magistrate concerned regularly and after the decision of the case by a civil court the receiver as well as the Magistrate shall deliver possession as well as the income of the property to the wining party in the civil Court, If the first party appellant Nos. 1 and 2 fails to file a suit as per above direction within the stipulated period of one year the proceeding under section 146 of the Code of Criminal Procedure shall stand dropped and the second party respondents shall be entitled to get back possession of the suit property with income from the receiver and the Court concerned.

2. An application under section 144 of the Code of Criminal Procedure was filed by the first party-appellant before the Sub-Divisional officer, Cox’s Bazar for drawing up of a proceeding stating inter alia, that the suit land measuring 11.80 acres was purchased by them in auction on 12.02.1963 in Certificate Case No. 1767 of 1960 -61 and duly received the deliver of possession and since purchase have been possessing the same with right, title and interest thereto without any disturbance from any quarter and converted some of the land into salt bed not some portion as agricultural land and lave been rowing salt and agricultural products. The second party men are most dangerous and desperate in nature and having no respect for law and order and no right, title and interest over the

case land have been trying to disturb first party in their possession of the land and with that end in view the second party have been collecting arms and undesirable elements and are determined to oust the appellants from their legal possession over the case land and have been threatening the labourers of the first party appellant. Thereby there is every chance of the breach of peace with loss of life and property if the second party respondent try to oust the first party appellants from the lawful possession of the schedule land and accordingly prayed for restraining the second party respondent from entering into the case land under section 144 of the Code of Criminal Procedure.

3. The Sub-Divisional Officer sent the application to the Officer-in-charge of the local Police Station Moheskhali who submitted a report on 10.11.1978 and on perusal of the said report a proceeding under section 145 of the Code of Criminal Procedure was initiated and an order of attachment of the land was passed appointing circle officer,

revenue as the receiver of the land in NGR No. 132 of 1978.

4. The second party respondent contested the proceeding filing written statement contending inter alia, that the land of the proceeding kahtians originally belonged to Rashik Chandra and others, who were the R. S recorded owners and the predecessors of both the first parties and the second parties are Taimum Golal and Nazar Ali respectively, who purchased the total lands under R. S. Khatian NO. 56 measuring 22.61 acres equaly. Thereafter MRR khatian was recorded in the name of the said Taimum Golal and Nazar Ali jointly and equally. Taimum Gola was the sardar of the block containing the proceeding land Taimum Golal used to take the rent from Nazar Ali for depositing the same to the concerned office. A Kathi or bandh was made divising the total lands of the proceeding Khatian by the said Nazar Ali and the said bandh or Kathi was named as” Mazerar Baper Khathi”. The northern side of the Kathi was under the possession of Taimum Golal and the Southern portion had been possessed by Nazar Ali, who died some times in the year 1959 and since then his portion is being possessed by the respondents and proforma respondents . The second party of the proceedings did not know anything regarding the settlement case or auction sale and if there be any auction, that false, concocted, null and void document and has been created by Taimum golat to grab the property in the name of the appellant Nos.l and 2. There was no salish and demarcation between the parties concerning the proceeding lands as claimed by the 1st party. There was no hungama for the proceeding lands. The schedule as has been shown in the proceeding is not correct schedule and the total areas of schedule plots is 15.70 acres of land, thus the schedule is not specific nor described properly and correctly. There was no apprehension of breach of peace existing over the proceeding lands.

5. The first party examined three witnesses and second party examined 5 witnesses in the case and the S. D. O. found the possession of the first party by judgment and order dated 14.6.1987, against which second party respondent filed criminal revision No. 72 of 1987 before the Sessions Judge, Cox’s Bazar and upon hearing allowed Ihe revision application dropping the proceeding and directing the sale proceed to be distributed to all the co-sharers by judgment and order dated 10.3.1993. Against the said order dated 10.3.1993 the first party appellant moved the High Court Division in Criminal Revision No. 555 of 1995 and the second party as well filed Criminal Revision No. 813 of 1993 against the judgment and order of the learned Sessions Judge passed in Criminal Revision No. 72 of 1983 . Upon hearing the revisions both the rules were made absolute setting aside the order dated 10.3.1993 passed by the Additional Sessions Judge, Cox’s Bazar and send the case back on remand to the learned Sessions Judge, Cox’s Bazar for fresh hearing of the revisional case No. 72 of 1987 and decision in accordance with law. After the said remand upon hearing the said revisional application, the same was rejected by judgment and order dated 13.7.1997 affirming the judgment and order of the Magistrate, against which the second party-respondents filed under section 561A of the Code of Criminal Procedure for quashing the impugned order dated 13.7.1997 passed by the Additional Sessions Judge, Cox’s Bazar in Criminal Revision No. 72 of 1987. The High Court Division however, made the rule disposed of in the aforesaid terms. The first party appellant being aggrieved moved this Court and obtained the leave in this appeal which is as under: “Mr. Khan Saifur Rahman, learned Advocate appearing for the First Party- petitioners submits that both the Courts below on consideration of the materials on record both oral and documentary found exclusive possession of the first party in the case land and as such the learned Judges of the High Court Division acted illegally and wrongly in setting aside the finding of fact in a quashing proceeding when there was no lack of jurisdiction on the part of the Magistrate in arriving at such a finding of fact and consequently the learned Judges of the High Court Division exceeded their jurisdiction and fell into an error of law in interfering with the judgment of the Courts below. The learned Advocate referred the case of Aminul Islam vs. Mujibur Rahman and others reported in 44 DLR (AD) 56 in support of his argument.”

6. Mr. Khan Saifur Reahman, the learned Counsel appearing for the appellant has submitted that the learned Magistrate and the Sessions Judge having found the exclusive possession of the appellant in the case land upon consideration of evidence on record, the High Court exceeded its jurisdiction in interfering with the concurrent finding of fact as to exclusive possession of the first party appellant invoking the provision of Section 561A of the code of Criminal Procedure which is no warrant under the provision of law.

7. Mr. Abdul Malek, the learned Counsel appearing for the second party-respondents submitted that inherent power of the High Court Division under section 561 of the Code of Criminal Procedure can be invoked by a party to a proceeding to secure ends of justice in view of the finding if the High Court Division that the property is in joint possession of the parties to the proceeding as the learned Additional Sessions Judge, Cox’s Bazar on misconception of law fact has affirmed the finding as to possession of the first party appellant ignoring the faci that the case land was in possession of the second party respondent since prior to the alleged auctionsale.

8. It appears from the record that the learned Magistrate, Cox’s Bazar discussed, scrutinized and discussed the effect of the evidence of 3 P. W.s and D Ws. as under “On careful scrutiny of both oral and documentary evidence on record it appears that 1st Party was in possession of the P. L. at the time of proceeding and before the proceeding . The contesting 2nd party claiming that P. L. was in their peaceful possession along with other co-sharers since long. But the contesting 2nd party failed to produce any of their co-sharers in the instant case as witness to prove their possession. The contesting 2nd party witness Amjad Ali admitted in cross that he heard about the certificate sale of the P. L. and he did not file any suit against certificate sale. But in chief he stated that the P. L was not sold in certificate sale. Even he could not say the plot No. and kahtian Nos. of the P. L . It goes to show that they were not in possession of the P. L. 2nd party witness No. 3 admitted in cross that he hails from Bara Mascal, 3 miles away from the P. L . He also admitted that he could not able to say Dag No. and Khatian Nos. and total area of the P. L. He also admitted in cross that he does not know the names of the co-sharers of the 2nd party and who posses which portion of the P. L. It has also been proved from his admission that Moulavi Amjad Ali brought him on hire who gave evidence as tutored witness. Hence his evidence is questionable. 2nd party witness No.4 karimdad admitted in cross that the P. L. is 100 bamboos in length and 20/30 bambos inbreadth, i. e 10.00 acres of land whereas the P. L. is 11.84 acres. He also admitted in cross that the 2nd party was in possession of the P. L. about 20/30 years ago. He also admitted that 2nd party possess the P. L. 2 years ago as his own. This also goes to show that the 2nd party was not in possession of the P. L. at the lime of proceeding . Here it appears that proceeding was drawn in the year 1978 i. e. long before 8 years then how could it be possible on the part of 2nd pam to be claimed their own then the land is under tl c management of receiver. 2nd / P. W. 6 Syedui Rahman has not been produced by the contesting 2PJ party for his cross examination , the reason is best known to them though several chance were given to them.”

9. And arrived at a finding of fact that he was satisfied that the first party was in exclusive possession i e the land at the time of the p’oceechng and before and are entitled to possession if the proceeding until they are evicted in due process of law and thereby forbidding all disturbance 10 the first party until their eviction in due process of law.

10. The learned Magistrate also found that there was an apprehension of breach of peace between the parties over the proceeding land and on the face of the denial by the second party-respondent, he on consideration of evidence on record was satisfied that there was apprehension of breach of peace at the time of drawing up on the proceeding and the same is still exist over the possession of the proceeding land.

11. While disposing of the said non-G.R Case No. 132 of 1978 the learned Magistrate by the order dated 14.6.1987 released the proceeding land from attachment in favour of the first party and directed the receiver to deliver the sale proceeds to the first party.

12. Upon a revision under section 435/439 A i of Code of Criminal Procedure at the instance of the second parts respondent in Criminal Revision No. 72 of 1987 the proceeding was dropped setting aside the order of the learned Magistrate dated 14.6.1987 allowing the revisional application holding that the parties are in ejmali possession of the case land and that the Non-G. R. Case No. 132 of 1987 of is not maintainable.

13. Upon revisional applications by both first and second parties being Criminal Revision No. 555 of 1993 and 813 of 1983 at the instance of the first and second party espectively, the same were allowed making the rule absolute setting aside the order dated 10.3.1993 passed by the Additional Session Judge. Cox’s Bazar and send the case on remand to the learned Additional Sessions Judge for fresh hearing of the revisoional application No. 72 of 1987 and decision in accordance with law.

14. The learned Additional Session Judge by order dated 13.7.1997 dismissed the revision on consideration of the evidence of the parties holding that the first party is in exculsive possession of the case land and affirmed the judgment and order or the learned Magistrate on assessment of the evidence as to pos session.

15. The second party respondent thereafter filed an application under section 561A of the Code of Criminal Procedure in the High Court Division for quashing the judgment and order dated 30.7.1997 passed by the Additional Sessions Judge, Cox’s Bazar in Criminal Revision No. 27 of 1987 affirming those dated 14.6.1987 passed by the learned Magistrate, first Class. Cox’s Bazar in G. R Case No. 132 of 1987 and the entire roceeding in case in N. G. R. Case No. 132 of 1987 under section 145 of the Code of Criminal Procedure making the rule absolute.

16. The High Court Division . however , by impugned judgment and order dated 24th January 1998 while disposing of the revisional application for quashing held that:

“Since prima facics it appears to us that the properties in a question are the common properties and the auction sale was not for benefit of all concerned and since both the parties are claiming possession over the suit property being co sharers of the common property, we are of the view that ends of justice will be met if the receiver continues his possession of the property and the aggrieved party must go before the civil Court for decision about title and possession over the same, In this case the property is being claimed by the party by virtue of auction sale. So we direct that the first party opposite party Nos. 1 and 2 should go to the civil Court for a decision for its title and possession over the suit property within one year from the date and until a decision is given by the civil Court in respect of the disputed property the receiver shall continue possession over the suit property as before and the receiver shall submit accounts of income of the property to the learned Magistrate concerned regularly. After the decision of the case by a civil Court the receiver as well as the Magistrate shall deliver possession as well as the income of the property to the wining party in the civil Court. It the 1st party opposite party Nos. 1 and 2 fails to file a suit as per above direction within the stipulated period of one year the proceeding under section 145 Cr. P. C shall stand dropped and the 2nd party petitioners shall be entitled to get back possession of the suit property with income from the receiver and the Court concerned.”

17. Section 145 (4) of the Code of Criminal Procedure enables the Magistrate to hold an inquiry as to possession which is material in this case in quoted below. (4) The magistrate shall then, without reference to the merits or the claims of any of such par ties to a right to possess the subject of dispute. Pursue the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:

18. Provided that , if appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:

19. Provided also that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section. Section 145 (1) of the Code of Criminal Procedure is intended only to provide speedy remedy in preventing breach of peace arising out of a dispute relating to immovable property by maintaining one or other party in actual possession and section 145 of the Code of Criminal Procedure enables the Magistrate to intervene promptly and pass an order regulating the possession of the property preventing the imminent apprehension of breach of peace and under sub-section (4) there of in case of emergency situation to appoint a receiver and upon taking evidence as may be produced by the parties and upon considering the effect of the evidence to determine the exclusive possession of an\ party in the proceeding land and to see as to whether there is a livelihood of any breach of peace and upon being satisfied as such as to apprehension of breach of peace exists or existed pass necessary order for regulating the possession in favour of the person who has been found to be in exclusive possession and pass an order as such in regard to the possession of the property in dispute until the determination as to the actual right of one of the parties, has been determined by the civil Court. In that sense the criminal Court exercising the limited summary jurisdiction could regulate the possession of the disputed property in case of any alleged apprehension of breach of peace and being satisfied there to could regulate the possession of the proceeding land by appointment of receiver in case of any emergency situation and finally by declaring the party to be in exclusive possession of the proceeding land. On the failure of the learned Magistrate to ascertain factum of possession in favour of either party direct the parties under section 146 of the Code of Criminal Procedure to go to the Court of competent civil jurisdiction.

20. Section 146 of the Code of Criminal Procedure provides that:

I46-(1) If the magistrate decides that none of the parties was then in such possession or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach it until a competent Court has determined the rights of the parties there to, or the person entitled to possession there of :Provided that the Metropolitan Magistrate or the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw

the attachment at any time out he is satisfied that there is no longer any likelihood of a

breach of the peace in regard to the subject of dispute.

(2) When the Magistrate attaches the subject of dispute, he may. if he thinks fit and if no receiver of the property, the subject of dispute, has been appointed by any Civil Court appoint a receiver there of, who subject to the control of the Magistrate, shall have all the powers of a receiver appointed under the Code of Civil Procedure. 1908: Provided that, in the event of a receiver of the property, the subject of dispute, being subsequently appointed by any Civil Court, possession shall be made over to him by the receiver appointed by the Magistrate, who shall thereupon be discharged. “Section 146 is collorary to section 145 and as stated earlier is only attracted when Magistrate could not decide which of the parties to be in actual possession while allowing the receiver to continue in possession till the question of title and possession are resolved by a competent Court of civil jurisdiction . Thus section 146 (1) clearly lays down that in case of any decision as to which of the party is in possession and /or failure on the part of the parties to satisfy the Magistrate as to their respective possession the learned Magistrate could continue with the attachment of the land until the rights of the parties there of or person entitled to possession there of is decided by the civil Court or upon assumption of the jurisdiction by the civil Shamasiiddin vs Amijad Ali (Mohammad Fazlul Karini J 1 ADC(2004) Court, the latter appoint a receiver to take over possession until final determination of the suit and in that event the appointment of receiver by the Magistrate is accordingly discharged. This view finds support in the case of Haji Golam Hossain Vs. Abdur Rahman Munshi reported in 40 DLR (AD) 196 where in it has been held that: ” …….the purport of the proceeding under section 145. Cr. P. C. is to find the possession of the property and section 146(1) clearly lays down that in case he decides that none of the party was then in such possession or is unable to satisfy as to which of them was in possession, he may attach the land “until a competent court has determined the rights of the parties there of or the person entitled to possession thereof”.

22. In the instant case the learned Magistrate on consideration of the evidence on record arrived at a finding of possession on consideration of the evidence on record as detailed above and the same was affirmed by the learned Additional Sessions while disposing of the Criminal Revision No. 72 of 1987.

23. It appears from the impugned order that the High Court division on the mere submission of the second party respondents without any reference to any evidence have prima fades found that the property in question are the common properties and the auction was not for benefit of all concerned and since both are claiming possession over the suit property being co-sharers of the common property and of the view that ends of justice will be met if the receiver continues in possession of the property and as such dropped the proceeding directing contrary the provision of law that the first party to file

a Civil Suit within one year and in case of failure to file the suit directing the second party to receive the usufructs from the receiver which is not contemplated either under section 145 on under section 146 of the Code of Criminal Procedure.

24. The respondent has referred to a decision in the case of Abdul Jabbar Vs. Azizul Huq and others reported in 46 DLR 460 in which one of us. Hasan C. J. as his Lordship than was a party. The said decision is distinguishable from the instant case. The learned Magistrate seemed to have relied more on certain documentary evidences like C. S., R. S., D. P Khatian, rent receipt etc. than the oral evidence adduced by both the parties and had given decision on title instead of the possession of the either of the parties. Even then it appears that he was not sure which party had the title. But the fact of the instant case is distinguished in thai the learned Magistrate considered the evidence as to possession of the parties over the proceeding land over which there exists or existed an apprehension of breach of peace so as to invoke the jurisdiction under section 145 of the Code of Criminal Procedure and arrived at a finding of exclusive possession in favour of the first party-appellant whereas in the referred decision the approach as to application of law was otherwise round. In view of the above, the said decision is not applicable in the facts and circumstance of the instantcase.

25. The instant proceeding under section 145 of the Code of Criminal Procedure have been set at rest on concurrent findings of fact as to the exclusive possession of the first party, the rev isional jurisdiction at the instance of the second party respondents under section 561 A of the Code of Criminal Procedure does not lie as it is a device of invoking second revision under the garb of an application under section 561A of the Code of Criminal Procedure which is not maintainable following the principle in the case of Nader Ali Vs. Bangladesh reported in 4 BLD (AD) 7 wherein it has been held. “Section 56) A may be invoked only for the specific purposes set out in this section and the High Court Division may in appropriate cases exercise its extra-ordinary power under this section to prevent the abuse of the proecess of the Court or to meet ends of justices. Provision of this section cannot be invoked by a person after becoming unsuccessful in an incompetent application for revision which is barred by law. “In a similar case of Aminul Islam Vs. Mujibur Rahman and others reported in 44 DLR (AD) 56 it has been held: “we do not agree with the first contention raised on behalf of the appellant that a party who has been unsuccessful in revision before the Sessions Judge under section 439 A Cr PC is totally debarred from invoking the jurisdiction of the High Court Division under section 561A there of. The opening words of the said section-“Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division ” is sufficient to repeal such a contention. In Emperor Vs. Nazir Ahmed AIR 1945 Privy Council 18 the true import of the section has been stated to be that it only provides that those powers which the court already inherently possesses shall be preserved, lest it should be considered that the only powers possessed by the court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. Therefore , the inherent jurisdiction of the High Court Division will be available even to a party who has lost in revision before the Sessions Judge under section 493 A. But it must be clearly borne in mind that the jurisdiction under section 561A is not to be used as an additional or an alternative jurisdiction. The powers there under being extraordinary in nature should be exercised sparingly and with caution and only where such exercise is essential and justified by the tests specially laid down in the provision itself. It is now well settled that a second revision dose not lie to the High Court Division after taking recourse to section 439A Cr PC . Vide shafiqur Rahman Vs. NI Chowdhury. 35 DLR (AD) 127.The jurisdiction under section 561A cannot be invoked for the purpose of examining the correctness, legality or propriety of any finding sentence or order recorded or passed by any inferior criminal court which is done in exercise of revisional jurisdiction under sections 435/439/439A CrPc. A revision petition cannot be brought before the High Court Division in the camouflage of a petition under section 561A CrPc. The final order of a Magistrate passed under section 145 CrPC which has been upheld in revision, as in the present case, can be interfered with under section 561A only to prevent an abuse of the process of the court or otherwise to secure the ends of justice which in our opinion, is ordinarily relatable to an exercise of authority without jurisdiction. It will be, therefore in a very rare case, that the High Court Division will fell called upon to exercise its jurisdiction under section 561A when the party has already exhausted the remedy of a revision. A proceeding under section 145 CrPC cannot be quashed under this section unless an abuse of the process of the Court or an injustice appears apparently on the face of the record”.

26. In view of the discussion above, this appeal is allowed and the impugned judgment and order of the High Court Division in Criminal Miscellaneous Case No. 3125 of 1997 are set aside and those of the learned Additional Sessions. Judge, Cox’s Bazar dated 13.7.1997 are in Criminal Revision No. 72 of 1987 affirming those dated 14.6.1987 in N. G. R Case No. 132 of 1978 passed by the Magistrate . First Class, Cox’s Bazar are hereby restored.

Ed.

Source : I ADC (2004), 3.