Calcutta High Court (Appellete Side)
In Re : Sk. Manirul Mia & Ors vs 44(2) Of Cr.P.C Was Set Aside on 13 September, 2021
13.09.2021
tkm/ct 29
sl no. 7
C.R.R. No. 396 of 2010
(Via video conference)
In Re : Sk. Manirul Mia & Ors. .....petitioners
Mr. Rana Mukherjee
Mr. Pravas Bhattacharya
............. for the State
The matter is fixed today for hearing as "Contested
Application".
Mr. Rana Mukherjee Ld A.P.P and Mr. Pravas Bhattacharya,
learned advocates appear for the State. Concerned authority is
requested to regularize their appointment in the matter.
On call, none appears for the petitioner and opposite party
no.2.
Affidavit of service upon the opposite party no. 2 is not found
in the case record.
This revisional application is directed against the
order/judgment dated 12.1.2010 passed by learned Additional
District and Sessions Judge, Contain in Criminal Revision no. 15 of
2009 contending that the same is contrary to the order dated
11.12.2009 passed by the Hon'ble court in CRR 3411 of 2009 and
the interim order passed in Title Suit no. 402 of 2009 passed by the
Civil Judge, (Jr. Divisoin) 1st court, Contain.
It is the contention of the petitioner in the application is that
one Bahaluddin Mia died on 3.4.1967 leaving behind his sons. Said
Bahaluddin Mia had another son by the name of Sk. Masleuddin
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Mia. The present opposite party no. 2, Sk. Nazrul Islam Mia is the
son of Masleuddin Mia. According to Islamic Law of Inherent (Sunni
School) heirs of predeceased sons cannot inherit any property or
office. It is contended that the opposite party no. 2 Sk. Nazrul Islam
Mia harassed and disturbed the possession of the petitioners in the
riayati land inherited by them. Due to which they filed Title Suit no.
402 of 2009 before the learned 1st court Civil Judge, (junior
division) Contai against the present opposite party no. 2 and others
and prayed for ad interim order of injunction against him and
interim order of temporary injunction was passed by the learned
civil judge on 4.8.2009 restraining the opposite party no. 2 herein
from interfering peaceful possession of the plaintiff in T.S no. 402
of 2009 i.e. the petitioners as sebaits (mutwali) from management
of the estate and seba and from changing the nature and character
of the suit property. The present petitioners also filed misc case no.
217 of 2009 under section 144 Cr.P.C. before the Executive
Magistrate at Contai.
After considering all facts, the Executive Magistrate passed
an order on 29.7.2009 directing both the parties to maintain peace
in respect of the Tazkhan Moshod-E-Alapir till the shares of the
legal heirs ere settled by the competent authority. The opposite
party no. 2 in this Criminal Revision also initiated a Misc. Case no
199 of 209 under section 144(2) Cr.P.C.in the court of the learned
Executive Magistrate at Contai against the present petitioners and
procured a favourable order. Finally on 29.7.2009 after considering
all materials Executive Magistrate directed the parties to follow the
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order passed by the learned Civil judge. By that order, opposite
party no. 2 was restrained until further orders. On 5.8.2009 the
Executive Magistrate passed an order in Misc Case no. 199 of 2009
where it was observed that as the petitioner Sk. Nazrul Islam Mia
(OP no. 2) was not able to produce documentary evidence regarding
his legal right at Pirthan and he was restrained until further orders.
Accordingly, the order dated 29.7.2009 was modified.
Opposite party no. 2 challenging the legality of the said order
dated 5.8.2009 passed in Misc Case no. 199 of 2009 preferred a
Criminal Revision no. 15 of 2009 before the learned Additional
District and Sessions Judge, Contai where order dated 5.8.2009
passed by the Executive Magistrate in Misc Case no. 199 of 2009
v/s 144(2) of Cr.P.C was set aside.
The present petitioners being severely disturbed in
possession of their property, filed CRR 3411 of 2009 before this
court wherein the revisional application was disposed of on
11.12.2009
directing the learned court below to hear the Revisional
application by preponing the date preferably within 20 days from
the date of the order and till disposal of the criminal revision,
parties were to abide by the order of the Ld. civil court.
It is the contention of the petitioners that learned Additional
Sessions Judge, Contai passed the order dated 12.01.2010
restraining opposite parties from interfering with peaceful
possession of the plaintiff as motwali from managing the estate or
from changing the nature and character of the schedule land and
finally by the Judgement dated 12.1.2010 the order passed by
SDEM, Contai on 5.8.2009, in Misc Case No. 199 of 2009 under
section 144 (2) Cr.P.C was set aside. According to the petitioner,
this order is contrary to the direction of the Hon'ble court.
I have considered the materials on record and the impugned
order as well as the submission made by the prosecution. It
appears that the learned Additional District and Sessions Judge
while disposing of the criminal revision no. 15 of 2009 did not
transgress the direction of this court passed in Criminal Revision
No 3411 of 2009. Learned Additional District and Sessions Judge
on his appreciation, set aside the impugned order dated 5.8.2009
passed by the Executive Magistrate in Misc Case no. 199 of 2009.
Since the matter in dispute is before the civil court which is
vested with the jurisdiction to determine disputes civil in nature, I
find no merit in the present criminal revision and no purpose would
be sub-served by interfering with the impugned order passed by the
Additional District and Sessions Judge, Contai.
Interim order of stay, if any, stands vacated.
Let copy of this order be sent to the Additional District and
Sessions Judge, Contai for information.
Urgent photostat certified copy of this order be given to the
parties upon compliance of requisite formalities.
(Ananda Kumar Mukherjee, J.)
