Patna High Court
Gouri Dutt vs Gobind Singh And Ors. on 5 August, 1919
Equivalent citations: 53IND. CAS.829, AIR 1920 PATNA 496
JUDGMENT Jwala Prasad, J.
1. The petitioner in this case purchased certain properties in execution of a rent decree, dared the 7th Jane 1918, under Section 208 of the Chota Nagpur Tenancy Act (VI of 19 8) read with Section 11 of the Rent Recovery Act (VIII of 1865). The petitioner obtained delivery of possession of the tenure on various dates between the 30th March to 11th April 1919. We are concerned with the delivery of possession of a village called Kuru, which was effected on the 30th of March
2. In that village there are certain lands called the Manjhias lands which correspond m3re or less to the proprietor's private lands in this part of this country. The judgment debtor, Thakur Madan Mohan Nath Sahi, had created an under tenure in respect of the entire village including the Manjhias lands in favour of his wife, the opposite party in this case. The name of Musammat Nirmal Kuar stood recorded in the Record of Rights in 1908 in respect of the said under tenure, though prior to that in 1904 in a certain civil suit the said lady was declared to be only farzidar for the judgment-debtor.
3. After the delivery of possession the Polio's reported that there was a danger of a breach of the peace on behalf of both the parties; each trying to cultivate and sow the Manjhias lands in village Kuru in question. On the 18th June 191' the Magistrate issued an order against the opposite party "forbidding them to go near the Manjhias lands at Kara or to disturb the possession of the first party over these lands in any way." That order was paused under Section 144 of the Code of Criminal Procedure.
4. Thereafter the opposite party filed a petition, objecting to the notice being issued against them and praying that a notice under Section 144 should rather be issued on the petitioner. In that petition it was stated that the master of the first party Rai Bahadur Baldeo Das Birla was never delivered khas possession of the village Kara, nor did the nazir, as a matter of fact, deliver possession according to law. Upon that petition the Magistrate dirActed notice to issue upon the petitioners "to be present with their documentary evidence on the 19th June 1919."
2. After an adjournment the case was ultimately taken up on the 25th June, on which date the arguments were heard and the Magistrate directed the khatian of the village to be filed.
3. On the 27th June the Magistrate after looking into the documentary evidence that was on the record passed an order cancelling the notice under Section 141 that was already issued and served against the opposite party, and in its stead directed that an order under Section 144 "be issued against the auction-purchaser's agent and manager forbidding them to interfere with Musammat Nirmal Kuar's possession over the Manjhias lands of Kuru in any way."
4. The Deputy Commissioner was then moved to set aside the order under C Clause (4) of Section 144, bat without any success. The petitioner has, therefore, come to this Court and contends that the order of the Magistrate under Section 144 against the petitioner was without jurisdiction. It appears to me that the contention of the petitioner must prevail.
5. The tenure in question was sold under the aforesaid Chota Nagpur Tenancy Act and the Rent Recovery Act. Section 16 of the latter Act clearly declares that the-sale of tenure under that Act will be free from all incumbrances which may have accrued thereon by any Act of any holder of the said under-tenure, his representatives, or assignees, unless the right of making snob. incumbrances shall have been expressly vested in the holder by the written engagement under which the under-tenure was created, or by the subsequent written authority of the person who created it, his representatives or assignees.
6. The under-tenure in question was not created by the judgment debtor in favour of his wife under any express authority in writing by the Maharaja of Chota Nagpur, who created this tenure in favour of the judgment debtor. The effect, therefore, of this Section is that the petitioner had purchased the tenure free from the under tenure that was oracted by the judgment-debtor. This view is accapted by the learned Deputy Commissioner, who held that the incumbrance was rendered void ipso facto by reason of the sale to the auction-purchaser, the petitioner in this case, and the learned Deputy Commissioner answered the issue raised by him for determination,--- "Was the auction purchaser, i. e , the first parry at the time of delivery of possession put in direct possession of the Manjhias lands of Kuru or not?"---in-favour of the petitioner and against the opposite party. The result of this finding is that that petitioner was put in possession of the lands free from the under-tenure in question by the Civil Court in execution of a writ issued by that Court. The question, therefore, for the Deputy Commissioner was whether the petitioner had the right to enforce the possession delivered to him by the Court as against the opposite party, who claimed to be in possession by virtue of the under-tenure created by the judgment; debtor. The effect of the order of the Deputy Commissioner is to restrain the petitioner from reaping the fruits of the auction purchase followed by the delivery of possession by the Court, He has been asked to abstain from interfering with the possession of the opposite party over the lands in dispute. It cannot possibly be contended that the petitioner, in going over the lands and trying to exercise possession there-, on by virtue of the writ of delivery of possession, did commit any wrongful Act, or that the opposite party, in spite of their right in the under-tenure having ceased to exist by virtue of the sale, could be lawfully engaged in exercising their possession over the lands as against the petitioner. If the right or possession of the parties be not free from any doubt and there be a danger of disturbance of public tranquillity on account of both the parties asserting their right and possession over the lands in question, it would certainly be inequitable to take Action under-Section 144 and to restrain one party as against the other, the virtual effect of which would be to usurp the functions of the Civil Court to decide the right and title over the disputed land including the right of possession.
7. Again, in the circumstances of the dispute in respect of the right of possession of the disputed land a temporary order under Section 144 is not an effective and sufficient remedy. The learned Daputy Commissioner has already perceived that, and he justified his action on the ground that the temporary order under Section 144 defense the position of the parties and will for this reason, when the order runs out by lapse of time, serve to prevent a breach of peace even then." If the Daputy Commissioner on-templates successive orders under Section 144 after the lapse of every two mouth, the procedure has been condemned by the Courts. The power of a Criminal Court under Chapter XI of the Code of Criminal Procedure is intended to be exercisable and when the right of a party is clear and there is a threatened invasion of that right by another party, a temporary order under Section 144 might be then useful and effective. But it is obvious from the very nature of the dispute between the parties in this case that such an order cannot possibly be effective, for after the sowing of the crops the dispute and the danger to the peace will again re appear after two months. Similarly under Section 107 when parties are in the wrong they can be bound down in order to prevent a breach of the peace for trying to commit a wrongful act. But when there is a doubt as to the right of the parties to be in possession of the immovable property, as in this particular case, the only effective remedy is that provided by Section 145, under which if the Magistrate after due enquiry comes to the conclusion that one of the parties is in clear possession, he will uphold his possession until he is evicted in due course of law and if on the other hand the Magistrate finds it difficult to decide which of the parties is in actual possession, he has got a remedy to prevent a breach of the peace under Section 146 by attaching the subject matter of dispute. The right of the petitioner to the possession of the lands in this case was areated by the delivery of possession. Whether the under tenure (treated by the judgment-debtor became void or voidable in favour of the opposite party under Section 16 of the Rent Recovery Act cannot possibly be decide under Section 141 of the Code of Criminal Procedure.
8. The order is again open to objection, as there was no notice served upon the petitioner to show oau3e against the order to be made at the instance of the opposite party. Toe notice under Section 144 was served upon the opposite party in pursuance of the order of the 13th June, After that the Magistrate could only set aside or rescind that order under Clause (4) of Section 144. The Magistrate could not at that stage pass an order under Section 144 against petitioner without giving him an opportunity of showing cause against the order.
9. Taking all the circumstances of the case into consideration I set aside the order of the Magistrate as being without jurisdiction, leaving the Magistrate to take Action under the law if there be still an apprehension of a breach of the peace.