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Criminal Revisions Nos. 6 and 124 of 1968, decided on 21st June 1968.

S. 522‑Restoration of possession of immovable property‑Person, not one of accused in criminal case‑Cannot challenge legality of order passed under section 522‑Magistrate whilst convicting accused of criminal trespass need not incorporate finding of forcible dispossession in order of conviction before passing order under S. 522‑Accused entering building in absence of owner and on return of owner keeping him out of land by show of force‑Forcible dispossession‑‑ Restoration under S. 522, must be made to person dispossessed from date of dispossession‑Person claiming to have purchased property from accused after accused had taken forcible possession of property‑Cannot challenge order passed under S. 522‑Penal Code (XLV of 1860), S. 447.

Dewan Warasat Hossain with Humayun Habibur Rasul for Petitioners.

Serajal Haque with Mazaharul Haque for the Opposite‑Parties.

Date of hearing : 5th and 6th June 1968.

These two petitioners arise out of an order passed under section 522, Cr. P. Code and will be covered by this judgment. The original case, namely, Criminal Case No. 447 of 1961 was started by one Yasin Ali Khan against three accused persons named in the petition of complainant and others unnamed. The three accused persons named were (1) Abdul Kader, (2) Solaiman and (3) Dr. Sonaullah. It was stated in the petition that the petitioner along with the wife of P. W. 4. Safdar Ali purchased the land shown in the Schedule to the petition from the local and rightful owners by registered sale deed dated 17‑4‑1954 and 24‑2‑1956 respectively and were duly inducted into possession of their respective purchased portions by the vendors and were in possession since purchase. It was further alleged that the accused persons illegally and forcibly entered into the scheduled land on 13‑4‑1961 and had taken recourse to unauthorised and illegal construction of thatched shed despite protest by the complainant and others. It was further alleged that the accused persons were on the plot of land being variously armed with deadly weapons and had been claiming that they would not hesitate to take away the lives of the petitioner and his men if he had opposed them in their illegal activities. The Schedule attached to the petition of complainant reads as follows :‑

Distt. Dacca, P. S. Tejgaon, 278 Tajkunipara Mouza Khatian No. 2556 Plot No. 215/589‑'31 decimals of land from its entire area of '45 decimals and 10 decimals of land from Plots Nos. 215/589 and 215.

During trial Abdul Kader had compromised the case and hr. Sanaulla had died. The learned Magistrate found that the disputed land comprised C. S. Plots Nos. 215/589, 215 appertaining to Khatian 2556 of Tajkunipara, P. S. Tejgaon. It was recorded in the name of one Chamu Feringi who sold the land in 1927 to Bhupendra Ghose and others along with other land of the Khatian. The then landlord brought a pre‑emption suit and obtained a decree and took possession of the land in Khas and settled it with Narendra Nath Das and Birendra Das by an amalnama who in their turn erected but and lived there. Biren and Narendra in their turn sold the disputed land and other lands to Hazera Khatun wife of complainant Yasin Ali and Mr. Bequeruddin and six others. The complainant's wife's sale deed is dated 17‑4‑1954 and that of Rabia wife of Safdar is dated 24‑2‑1956. After the purchase both the complainant and Mrs. Safdar obtained delivery of possession, erected pucca pillars and constructed fencings. While Rabia Khatun and Hajera Khatun were in actual possession of the land, accused Solaiman, Abdul hadar and Sonaulla got sale deed in respect of the disputed land and other lands from the sons of Chamu Feringi and forcibly entered into the disputed land on 13‑4‑1961 against the protest of the complainant on behalf of his wife and of Mr. Safdar Ali and actually dispossessed the occupants. The learned Magistrate found that the evidence both oral and documentary went to prove the clear title of Hazera Khatun and Rabeya Khatun and physical possession of the same title they were dispossessed forcibly by the accused Soleman, Kader and Sanaullah and others. He found that the accused persons took advantage of P. Ws. 1 and 4 living far away from the disputed land, got sale deed from bogus heirs of Chamu Feringi who had sold his interest in the land and had divested himself of his right, title and interest as original tenant. He found that the possession of P. W. 1 and P. W. 4's wives and that of their predecessors had been abunduntly proved. He found that the accused persons had committed criminal trespass with respect to the said land and that the accused persons had unlawfully entered into the disputed land and remained there with intent to insult, annoy and intimidate the complainant. He thus found the accused Solaiman guilty under section 447, P. P. C. and sentenced him to pay a fine of Rs. 55 in default to rigorous imprisonment for one month. He further ordered that the aggrieved party be restored to possession of the disputed land under section 522, Cr. P. C. within one month from the date of passing the order. The order was passed on 15‑1‑1966. Thereafter the accused preferred an appeal. The appellate Court concurrently found that judged by the oral and the documentary evidence there was no room for doubt that till the date of the occurrence the complainant party was in possession of the disputed land successively from the time of their predecessors. The appellate Court also found that the accused party had committed criminal trespass by entering into the disputed land in possession of the complainant party with intent to insult, annoy and intimidate and ultimately the learned Sessions Judge held "I find that the accused has committed criminal trespass within the meaning of section 447, P. P. C. by show of force and that by criminal intimidation lie has dispossessed the complainant out of the disputed land and therefore the learned Magistrate was perfectly justified in directing restoration of possession in favour of the complainant". Therefore, the learned Additional Sessions Judge who heard the appeal upheld both the order of conviction arid sentence as well as the order of restoration of possession. It does not appear that this Court was moved by the convicted accused against the said appellate order which has passed on 13‑9‑1966. It appears from the order sheet that on 20‑11‑1964 on a petition filed by the complainant Yasin Ali the learned Magistrate directed the Officer‑in‑Charge, Tejgaon Police to restore the possession to the complainant's wife Hazera Khatun and P. W. 4's wife Rabia Khatun of the land in dispute. Later the order was stayed on seeing the order of the learned Sessions Judge. The accused was first convicted and sentenced by an order dated 17‑10‑1964. Then on 5‑4‑1965 on seeing the order of the learned Sessions Judge, Dacca notices were issued to the complainant and the accused to appear on 30‑4‑1965 for retrial as per order of the Sessions Judge. On retrial the accused were convicted on 15‑1‑1966 as stated above. Thereafter on 21‑2‑1967 a petition was filed by the complainant Yasin Ali praying for restoration of possession under section 522, Cr. P. C. of the disputed land described in the Schedule to the petition of the legal owners Hazera Khatun and Rabia Khatun through their husbands P. W. 1 and P. W. 4 respectively. It appears that the said petition was filed on 17‑5‑1967 annexing a copy of the previous petition and renewing the prayer for restoration of possession. Miscellaneous Case No. 680 of 1967 was started on this petition on 17‑5‑1967. Thereafter it appears that on 28‑10‑1967 one Mr. M. Masuq, Magistrate First Class, restored the possession of the disputed land to the complainant party.

Thereafter Manwara Begum filed the Revisional Petition No. 6 of 1968 in this Court and obtained a Rule from this Court. The main contention of the petitioner in this petition is that the learned Magistrate restoring possession had acted beyond his right by demolishing the boundary wall and the staircase of the petitioner described in the Schedule A annexed to the petition and illegally made over possession of the scheduled land to Rabia Khatun wife of P. W. 4 Safdar Ali who was not a complainant nor a party to the said criminal case and caused serious damage and injury in money, property and reputation in spite of the serious objection of the petitioner. It is alleged that the petitioner did not know anything of the said criminal case prior to the date 28‑10‑1967 when the said executing Magistrate accompanied by police force and armed force with the help of opposite‑parties and their men started demolishing of the structures in the scheduled land and petitioner raised objection. It was further alleged that no notice has been served upon the petitioner when the impugned order under section 522, Cr. P. Code was passed by the learned trial Magistrate in Criminal Case No. 447 of 1961 and the complainant and P. W. 4 managed to get the order under section 522, Cr. P. Code behind the back of the petitioner with mala fide intention.

Affidavit‑in‑opposition has been filed by opposite‑parties 2 and 3. In paragraph 7 of the said affidavit‑in‑opposition it is stated that since there was no revisional application to the Hon'ble High Court the Sub‑Divisional Officer, South ordered the Officer -in‑Charge Tejgaon Police Station to restore possession of the land of '10 (decimals) in C. S. Plot No. 215/589 and 215 to Rabiya Khatoon, and '7 decimals to Hazera Khatoon. In paragraph 9 it is stated that the Magistrate 1st Class who went along with police force demolished the unauthorised constructions of the occupant trespassers on 29‑10‑1967 and delivered possession to Rabeya Khatoon and Hazera Khatoon, through their husbands. The Magistrate had got the land surveyed by a surveyor in presence of Mr. Shamsul Huq, the petitioner's husband and had pointed out to him that he had encroached on the disputed land and then demolished the huts and other constructions on the land of Rabeya Khatoon and Hazera Khatoon and then made over vacant possession to their husbands. In paragraph 10 of the affidavit‑in‑opposition it is stated that it was not true that the petitioner did not know anything about the criminal case. That Monoara Begum, the petitioner, and Rabeya Khatoon purchased different portions, 3 kathas and 6 kathas respectively of the same plot from Noor Jahan Begum in 1958 and 1956 respectively and the petitioner has been living on her three kathas of land with her husband by constructing house thereon and by demarcating their lands by pucca pillars. The individual portions were surveyed by a surveyor and the measurements of respective lands were reduced into writing. The husband of the petitioner and husband of Rabeya Khatoon put their signatures in recogni tion of the accepted boundaries to avoid future misunderstanding. The copy of that document was annexed as Annexure 1 and is Exh. 12 in the case. It was further alleged that it was Mr. Shamsul Haque the petitioner's husband who has instructed the accused persons to purchase bogus deeds regarding the disputed land and in fact one katha of land was purchased in the name of the mother‑in‑law of Shamsul Haque also and as such the petitioner and her husband were in the know of the criminal case and the further allegation is that the petitioner and her husband not only encouraged the accused persons but also encroached during the pendency of the Criminal Case. A copy of the order of the learned Sub‑divisional Magistrate has been annexed as Annexure 2 of the petition and an explanation has been given about the difference in measurement as a portion of the plot has been acquired by the Government. There is a general denial of all the allegations made by the petitioners. In paragraph 22 it is stated that the present petitioner and the mother of Shamsul Haque filed a civil suit making Safdar Ali, husband of Rabeya Khatoon, Yasin Ali husband of Hazera Khatun, the Magistrate Mr. Masuque and the Officer‑in‑Charge Tejgaon, P. S. as party defendant being Title Suit No. 350 of 1967 in the Court of 1st Munsiff, Dacca for permanent injunction and mandatory injunc tion upon the defendant and also prayed for temporary injunction. That order of temporary injunction was rejected on 16‑11‑1967 and tire judgment was annexed and marked as Annexure III' and the mail suit was also dismissed on 5‑12‑67. The order was annexed and marked as Annexure 4.

Mr. Abdus Salam appearing on behalf of the petitioner has first strenuously argued and challenged the order made under section 522, Cr. P. C. He has said first that in the ordering portion of judgment of the learned Magistrate there is no finding that dispossession was by show of force and as such the learned Magistrate could not have passed the order under section 522, Cr. P. C. This argument of Mr. Salam is not tenable. In this application by a person who was not an accused in the case the order of the learned Magistrate cannot be challenged. As stated above the accused concerned challenged the order up to the appellate stage but did not move this Court against the said order. So strictly speaking the petitioner is not competent to q question the legality of the order under section 522 of the Cr. P. Code secondly, it will be seen that the Magistrate has clearly found in the body of the judgment that the dispossession was forcibly made by the accused Solaiman and Sanaullah and other. The relevant portion of section 522 (1) of the Criminal Procedure Code shows that whenever a person is convicted of an B offence attended by criminal force or show of force or by criminal intimidation and it appears to the Court that by such force or show of force or criminal intimidation any person has been dispossessed of any immovable property the Court may, if it thinks fit, when convicting such persons or at any time within one month from the date of the conviction order the person dispossessed to be restored to the possession of the same.

In this case there is a clear finding that both Hazera Khatun and Rabia Khatun were dispossessed forcibly. I cannot go beyond this finding which was upheld by the appellate Court. The clear intention of the Legislature, is that if any person be he a complainant or not is dispossessed by criminal force or show of force or by criminal intimidation by the accused while committing the offence for which he was being tried, then the Court may order restoration of possession to the person so dispossessed. In this case the evidence clearly shows that the accused dispossessed both Rabia and Hazera Khatun and that finding has been arrived at both by the trial Court and the appellate Court. The Legislature does not state that the finding must be incorporated in the order of conviction. It is sufficient if such finding has been arrived at in the course of the judgment leading to the conviction.

Mr. Salam next argued that the finding that the dispossession was forcible was not in confirmity with the evidence. Again I must say that it is not competent for the petitioner to challenge the finding. However even the petition of complaint shows that the accused were armed with dangerous weapons and when the complainant protested they threatend to kill him or anybody who opposes them. Even accepting Mr. Salam's contention only for argument sake that the complainant being absent the entry could not have been with show of force but it is clear that the dispossession was by show of force. If the accused had entered in the building and had left quietly when the complainant came on receiving the news of the alleged trespass there would have been no dispossession. It might have amounted to civil or, criminal trespass depending on the intention but the moment the accused kept out the complainant and the owners from the land with show of force there was forcible dispossession.

Mr. Abdus Salam then argued that the learned Magistrate in giving possession to Mrs. Safdar Ali had encroached on a strip of land 10 feet in width by about 65 feet long north to south on the land of the petitioner. Exh. 12 is the sketch map in the record. It shows the respective plots of the petitioner before me Mrs. S. Huq and that of Mrs. Safdar Ali. This shows that the two plots are contiguous plot of Mrs. Ali being east to that of the petitioner. The measurement of the petitioner's plot is 35'6" north boundary, 64'8" east boundary 31'3" south boundary and 64'8" west boundary. The measurement of Mrs. S. Ali's plot is 67' northboundary 64' east boundary 66'9" boundary and 64'' west boundary. I asked Mr. Salam whether he was willing to face a local enquiry to investigate whether in giving delivery to Rabia Khatun, Mrs. S. Ali the learned Magistrate had given any portion beyond her plot as shown in the said sketch map. Mr. Salam tool time and on consultation with his client declined to face the local investigation. He fell back on the argument that as the petitioner was not a party to the proceedings she could not be dispossessed from the plot of land in her actual occupation. But as it has been clearly stated in the affidavit‑in‑opposition the petitioner and her husband encroached on the land during the pendency of the criminal proceedings and during the time that the land was in occupation of the accused persons. In view of the fact that the petitioner has declined to face the local investiga tion and in view of the clear assertion in the affidavit‑in -opposition and the fact that in paragraph 12 of the affidavit‑in- reply that she was in possession of the alleged encroachment having genuinely purchased the same I hold the allegation of encroachment by the petitioner was true and the possession in the encroached land if any is attributable to the dispossession by the accused persons. Therefore, the learned Magistrate was acting within his jurisdiction in restoring possession of the entire land of Rabia Khatun. In these circumstances there is no substance in this Rule and hence this is discharged.

The petitioner is a purchaser from Mrs. Sonaulla wife of one of the accused. Her purchase was on 8‑9‑1966 about a week after the order of the appellate Court in the criminal proceedings. Therefore, it is obvious that the petitioner had purchased litiga tion. Granting that the petitioner has locus standi to make this application I cannot but hold that the possession if any she had in the disputed land was derived from that of the accused person, who were found by the trial Court and the appellate Court to have forcibly dispossessed the complainant's party. She cannot leave any protected right either in law or in equity. The order of restoration of possession will date back to the date of dispossession. Restoration must be made to the dispossessed person of the property as it was on the date of dispossession otherwise the provisions of section 522 of the Criminal Procedure Code could be rendered nugatory.

Thus I see no substance in this Rule also and it is discharged.

Rules discharged.

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