KESHAR SINGH Vs. STATE OF U.P. AND ORS.
LAWS(ALL)-1971-12-33
HIGH COURT OF ALLAHABAD
Decided on December 22,1971

KESHAR SINGH Appellant
VERSUS
State of U.P. and Ors. Respondents

JUDGEMENT

C.D. Parekh, J. - (1.)This reference has been made by order dated 24th of March, 1971, passed by the 1st Temporary Sessions Judge, Azamgarh. He has recommended that the order dated 23 -1 -1971 passed by the magistrate relegating the parties to the position which they occupied prior to the order dated 30th March, 1970, (passed by this Court in second appeal), be modified.
(2.)For appreciation of the point involved in this case it would be necessary to give few facts. There is a shop No. 21 situate in mohalla Kurmi Tola, P.S. Kotwali, in the city of Azamgarh. In connection with this shop, as it appears, a civil suit was pending between the landlord and the tenant for ejectment. In that suit one Smt. Dhanraji Kuer, being a decree -holder, obtained orders for the ejectment of one Mata Prasad. This order was stayed by this Court by an ex parte order dated 7 -11 -1969 and this was confirmed on 30th of January, 1970. On 5th of March, 1970, one Lachhmina Kuer filed an application before the SDO, Sadar, stating that she had let out the shop to one Keshar Singh, son of Haveli Singh and the tenant occupied the shop on 17th of June, 1962. She also alleged that since July, 1968, Keshar Singh has abandoned opening the shop and his whereabouts are not known and a sum of Rs. 3,400/ - as rent is due from him. She also asserted that a public notice in a local weekly was also got published on 10th of February, 1970, but she having failed to secure the presence of Keshar Singh, is approaching the court and that Kotwali police be directed to open the shop and she be put into possession of the same. The SDO called for a police report and the police after making some enquiry in the locality made a report that the whereabouts of Keshar Singh were not available and the shop was locked from outside. As for the rent dues the police showed its inability to make a definite report. On this police report the SDO by his order dated 30th March, 1970, directed the police to break open the lock and to get an inventory of the property that may be found prepared and the property so found may be given in the custody of some person with the direction that the property may be available when required. This order was passed by the SDO in his capacity as magistrate. The police as it appears broke open the lock of the shop and prepared the inventory of the property found therein and submitted its report on 5th of April, 1970. In between nothing appears to have happened till 11th of August, 1970, when Keshar Singh applied for restoration of his possession over the property found in the shop. Keshar Singh in his application dated 11th of August, 1970 stated that he had been to Nepal in connection with his business and remained there for a petty long time and during his absence Smt. Lachhimina Kuer got the lock of the shop broken open through the agency of the magistrate and the police and got the possession through the police. Ha stated that the magistrate had no jurisdiction to pass an order in that manner and he, therefore, prayed that he should be restored the possession of the shop and the property found therein. On this application, as it appears, by order dated 16 -12 -1970 the SDM ordered redelivery of the possession of the shop from Lachhmina Kuer to Keshar Singh and the police in compliance with this order redelivered the shop and the property to Keshar Singh and got an endorsement to the effect on 21st of December, 1970. This endorsement is on the record. On 23rd of December, 1970, one Mata Prasad applied that he was a tenant of Dhanraji Kuer who obtained a decree against him and the High Court had already passed a stay order dated 30th of January, 1970, as stated above. On 23rd of January, 1971, the magistrate passed the order under reference. In his order the SDM has stated that the orders passed by him earlier are set aside and status quo prior to the order dated 30th January, 1970, is being maintained. From the discussion of the magistrate in his order it appears that he was himself satisfied that he had no jurisdiction to pass the orders which he passed in ignorance of the civil litigation pending between the parties.
(3.)A revision was filed against the said order of the SDM dated 30th January, 1971 and the Sessions Judge while making the recommendation has stated that this part of the order of the magistrate relegating the parties to the position which they occupied prior to the order dated 30th January, 1970 be set aside.


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