Patna High Court
Rudra Singh And Anr. vs Bimla Debi And Ors. on 2 February, 1960
Equivalent citations: AIR1960PAT505, 1960CRILJ1477, AIR 1960 PATNA 505, 1960 BLJR 328
ORDER Kamla Sahai, J.
1. This application by the second party is directed against the final order passed in a proceeding under Section 145 of the Criminal Procedure Code.
2. In view of the course which I propose to adopt in this case, I do not consider it necessary to give in detail the cases of the parties. All that I need mention is that the members of the first party claim to be in possession of the disputed land under a registered patta executed on 22-2-1952, by one Narendra Prasad Singh, admittedly a cosharer of Shri Rudra Narain Singh of the second party, who Is petitioner No. 1 in this Court. They also claim that they have made some constructions upon the land.
On the other hand, the second party's case is that an area of 5.85 acres of land, including the disputed land, was left ijmal between petitioner No. 1 and his co-sharers named Narendra Prasad Singh and Krishna Singh alias Srikrishna Singh under a compromise partition decree dated 19-2-1941. It is also the case of the second party that, by mutual arrangement, the second party has been in possession of 2.52 acres out of plot No. 1327, including the land in dispute. It is alleged that some trees stood upon this area of land; but they have dried up.
3. The learned Magistrate does not appear to have clearly stated anywhere in his judgment as to who was in possession before the members of the first party made constructions upon the disputed land. He has, however, come to the conclusion that the patta executed by Narendra Prasad Singh on 22-2-1952, conferred a right of possession over the members of the first party, and that they came into possession of the disputed land when they made constructions upon it, even though they did so in the absence of petitioner No. 1. He has further ob-served that, since they came into rightful possession and did not come into possession as trespassers, their possession had to be upheld by the Court.
4. The first point which Mr. Lalnarain Sinha has argued on behalf of the petitioners is that the first party cannot be held to have come into possession merely by reason of exercising an isolated act of possession in making constructions upon the disputed land in the absence of petitioner No. 1. In support of this argument, he has drawn my attention to a decision of Ross, J. in Ramnarain Singh v. Dhonrai Gope, AIR 1922 Pat 371. In that case, the petitioners had stealthily ploughed the disputed land and had sown crops on it at a time when the opposite party was absent His Lordship said that the Magistrate was right in ignoring such stealthy act of possession because possession within the meaning of Section 145 of the Criminal Procedure Code meant effective occupation or control. The facts of that case are distinguishable as the petitioners in that case had not made any construction upon the disputed land, Mr. Sinha has also relied upon a decision of a Division Bench of this Court in Mahabir Singh v. Emperor, AIR 1934 Pat 565. In that case, the Bench observed that an isolated act of trespass did not constitute possession of the wrong-doer as against the rightful owner in possession.
The facts of that case are also distinguishable. I, however, respectfully agree with the learned Judges who decided the two cases that mere exercise of an isolated or stealthy act of possession cannot constitute actual possession in the eye of law. What has to be considered is whether the party concerned did Or did not occupy & take effective control over the land in question. If he did, he must be held to have come into actual possession over the land, irrespective of whether the party opposed to him was present or absent at the time. This is a question which has to be decided as a question of fact.
5. The learned Magistrate has not, in his judgment, given any details about the alleged constructions made by the first party on the disputed land. It is not clear what constructions they have made and in what area of the land, nor is it clear how long they went on making the constructions. The question whether the first party took effective control over the whole or any part of the disputed land can only be decided on a consideration of these and similar points.
6. The learned Magistrate need not have gone into the question whether members of the first party had a right to take possession of the disputed land. Sub-section (4) of Section 145 clearly lays down that what a Magistrate has to do is to decide which of the parties was in possession at the date on which the proceeding under the section was drawn up, and he has to do this without reference to the merits or the claims of any of the parties to a right to possession over the subject-matter of dispute. He can, if necessary, incidentally consider the question of title to, or the right to, possess the disputed land when it has a bearing on the question of actual possession as he is mainly concerned with that question.
If he comes to the conclusion that one of the parties was in actual possession, it is unnecessary for him to decide whether that party was a mere trespasser or a rightful owner. The learned Magistrate appears in this case to have been misled by the words "forcibly and wrongfully dispossessed" in the second proviso to Sub-section (4) of Section 145. Under that proviso, the Magistrate is empowered to treat the party "forcibly and wrongfully dispossessed" within two months next before the date on which the proceeding is drawn up to be in possession for the purposes of the section. The word "wrongfully" does not refer to the title or right to possess.
The use of this word does not necessitate any investigation into the claim or right of the person who dispossesses. In other words, it is not necessary to decide whether he is the rightful owner or a trespasser. If it had not been so, the provisions of Sub-section (4) relating to non-consideration of the merits or the claims of the parties to a right to possess the subject of dispute would have become redundant and ineffective in the circumstances referred to in the second proviso. In my judgment, the second proviso refers to forcible dispossession by a man who does not act in accordance with law or, in other words, acts otherwise than in due course of law. For instance, if there is dispossession by a person in pursuance of the orders of a competent Court, such an act, though forcible, cannot come within the mischief of the proviso.
7. There are also other grounds which vitiate the learned Magistrate's order. He has not considered the affidavits filed on behalf of the parties at all. The learned Advocate appearing for the first party has stated that some of the documents filed on behalf of the first party have also not been considered. Mr. Lalnarain Sinha has made a similar grievance. On a perusal of the order, I find that the grievance of both the parties are fully justified.
Though the amendment of Section 145 under Act XXVI of 1955 has done away with the necessity of examining witnesses in Court and has provided that the Magistrate can come to his decision on the question of possession on the basis of affidavits filed on behalf of the parties, the Magistrates should remember that those affidavits must be considered because they take the place of the oral evidence. They should not be brushed aside by saying that there is oath against oath or that the affidavits cannot displace the weight of the documentary evidence. The Magistrates should consider the affidavits in the same way in which oral evidence is considered. They should give reasons for rejecting statements made in each affidavit. As the learned Magistrate has not, in this case, considered the entire documentary evidence and as he has not considered the affidavits, his order cannot be upheld.
8. In the circumstances mentioned above, I allow the application, and set aside the learned Magistrate's final order. The case is remanded, and it will go back to a Magistrate other than the one whose order is being set aside. The Magistrate will not allow the parties to adduce fresh evidence, but he will consider the entire evidence on record with reference to the cases of the parties afresh in accordance with law and in the light of the observations which I have made above.