Patna High Court
Suraj Narain Rai And Ors. vs The State on 11 May, 1950
Equivalent citations: AIR1950PAT502, AIR 1950 PATNA 502
ORDER Sarjoo Prasad, J.
1. This application 13 directed against an order of Mr. Muhammal Anwar, Magistrate 1st Class of Khagaria dated 14th December 1949, directing the petitioners to execute bonds of Rs. 2000 each with two sureties of the like amount to keep the peace for a period of one year under Section 107, Criminal P. C. and on their failure to execute the bonds in question to suffer simple imprisonment foe one year each. This order binding over the petitioners under Section 107 of the Code has been affirmed on appeal by Mr, Basu Prasad, and Additional Sessions Judge of Monghyr. Petitioners 1 and 2 are brothers, whereas the other two petitioners are the sons of petitioner 1.
2. The proceedings to which this application relates were started against the petitioners on the basis of a complaint filed on 30th November 1943. by the opposite party in which they alleged that five days before the date of the application the petitioners had gone to a certain field and ploughed the land in spite of the remonstrance of the complainant. The field in question relutes to khata no. 76 khasra No. 100 having an area of about 9 bighas 5 khatas 7 dhurs. In the record-of-rights the khata in question has been recorded as ghair mazrua am and parti-ka-dim. The Case of the opposite party is that the lands in question are used by the people of the village as pasture lands as also as passage for the villagers, and that the opposite party are wrongfully claiming possession of the said lands.
3. The case of the petitioners is that 8 bighas 14 kathas out of the lands in question had been settled with them in December 1942 by the Shekhpura Court of "Wards of which they have been in cultivating possession ever since on payment of rent to the landlord. They have also produced receipts in support of their alleged possession which are on the record of this case. Their case also is that the other portion of the lands had been settled with other tenants of the Shekhpura Wards Estate, and those tenants have been in cultivating possession of the remaining landa since 1927 or 1928 and have been paying rent to the landlord for which also receipts have been filed in this case. The petitioners, therefore, laid claim to the lands on the basis of the settlement alleged by them. They further stated that in 1941 there was a dispute regarding the landa leading to a panchayat, and in the panchayati the panches made the petitioners agree to this that they should keep possession of 5 bighas 6 dhurs of the land settled with them and give up possession of the rest of the area in favour of the Bhagwati Asthan.
4. In support of the respective case of the parties both oral and documentary evidence was adduced, the complaint having examined five witnesses and the petitioners eight witnesses in support of their case of possession and cultivation of the lands, Besides, as I have said they also filed documentary evidence. The learned Magistrate came to the conclusion that the petitioners had failed to establish their case of possession and cultivation of the land, and that, therefore, they should be bound over as directed by his order in revision. The lower appellate Court has affirmed that judgment on the assumption that the land was ghairmazrua-am land, and the petitioners had failed to establish their passission of the lands in question by virtue of the alleged settlement. It is extraordinary to find that the learned Judge in appeal does not even condescend be discuss the evidence given by the defence witnesses in support of the case of the petitioners possession over the disputed land. He also ignores consideration of the fact that the petitioners were not laying claim to the entire area of the khata of 9 bighas 5 kathas and 7 dhurs, but only in respect of the area settled with them where as the case of the petitioners was that the rest of the area was in possession of other tenants who bad been in cultivating possession thereof and had been paying rent to the landlord. The only way in which the learned Sessions Judge appears to dispose of the evidence adduced on behalf of the petitioners is with the observation ;
"They, no doubt, pat in evidence both oral and documentary to support the alleged settlement; but that cannot answer the question, particularly when the appellants possession as members of the village public was not disputed."
The appellants' possession as members of the village public was not the question at issue. The petitioners gave evidence not to prove such pos-session but to prove their case of settlement and possession under the Sekhpura Wards Estate, and it was for that purpose that the evidence should have been examined. I would have been inclined to set aside the decision of the learned Sessions Judge and to remand the case for disposal in accordance with law on this ground alone; but I think that in the circumstances of this case a proceeding under Section 107, Criminal P. C. was not justified.
5. In my opinion, where it is a case of dispute as to possession of land, and a case of bona fide dispute at that, proceedings under Section 107 of the Code should not be lightly resorted to. I do not mean to suggest that in a case of land dispute a proceeding under Section 107 is altogether without jurisdiction but in acting under these preventive provisions the Magistrate has to keep in view the respective scope of the provisions under Sections 144, 145 and 107, Criminal P. C. The decision in Shebalak Singh v. Kamaruddin Mandal, 2 Pat. 94 : (A, I. R. (9) 1922 pat. 435 : 23 Cr. L. J. 549 FB) is a case in point where Sir Jwala Prasad observed :
"Section 144 is a larger and more general section than Section 145. An order under that section can be made under various circumstances including a danger of a breach of the peace. Section 145 is of limited scope and applies only when there is a danger of a breach of the peace. The former is discretionary; the latter is mandatory. The latter provides for a thorough enquiry into the dispute as to possession of the parties which tends to a breach of the peace. Therefore when the special condition of Section 145 is fulfilled. Section 144 then yields to Section 145 In the sense that when he finds that there ia a real dispute tending to a breach of the peace the Magistrate is bound to institute a proceeding under Section 145 and enquire into the possession of the parties, Irrespective of any order that he might have originally passed under Section 144. This is a legal obligation cast upon the Magistrate under Section 145.'' The learned standing counsel contends that in effect the Magistrate in this case has purported to decide the question of possession and decided against the petitioners. Therefore, although there was no formal proceeding under Section 145, the requirements of Section 107 are attracted in view of the fact that the finding of possession is against the petitioners. Now, the answer to this is that Section 107 proceedings are not intended for the purpose of binding over persons who do certain acts in the exercise of their right to pro-party, or in pursuance of a bona fide claim of right to property. Action under Section 107 of the Code is in the main intended for persons who are desperate characters and habitually disturb the public peace or who in spite of orders of civil or criminal Courts finding possession against them persist in their unlawful conduct of disturbing the possession of others and take the law in their own hands. In Madho Singh v. Emperor, A. I. R. (29) 1942 Pat. 331 : (43 Cr. L. J. 637), Dhavle J., observed that "preventive action under Part IV, Criminal P. C., can be taken under various sections, each with its own scope and conditions of applicability. A dispute likely to cause & breach of the peace concerning land can be dealt with under Section 145, Criminal P. C. It used to be said at one time that the section had no application to disputes which were not bona fide. But Rankin C. J., pointed out in the Full Bench case Agni Kumar Das v. Mantazaddin, 56 Cal. 290 at p. 304 etc. seq, : (A. I. R. (15) 1928 Cal. 610 : 30 Cr. L. J. 69 FB) how such disputes, be they ever so mala fids, are neither outside the scope of Section 145, not particularly amenable to Section 107, Criminal P. C., and action under Section 145 in such disputes cannot properly be said to be inadmissible and not warranted by law......It is, however, essential, for the section to apply (Section 107), that the acts committed or likely to be committed should be wrongful. Acts committed in the lawful exercise of the right of private defence cannot support proceedings under this section and it if, therefore, to the party who is not in possession of the disputed property that the operation of this section is usually restricted,"
The above observations quite clearly show that Section 107 should not be ordinarily applied to case a of disputes in regard to immovable property much less where the dispute is a bona fide dispute as to possession as it is in the present case where the petitioners claimed under a settlement from the landlord. The appropriate proceedings, therefore, in cases of such disputes are proceedings under Section 145. In the present case, however, in my opinion, even a proceeding under Section 145 would not be entirely relevant. Here it is a case, according to the opposite party of dispute regarding land used by the public. In such a case if the obstruction alleged affects the rights of the public, then the specific provision under which the Magistrate should have taken action is Section 133 of the Code. In my opinion, therefore, if the Magistrate thinks that there is still a dispute likely to cause a breach of the peace, then he may, if so advised, take action under section 133 of the Code. The present proceedings are, in my opinion, therefore, misconceived and must be set aside irrespective of the consideration that the learned Sessions Judge in dealing with the matter of possession did not adequately deal with the evidence adduced on behalf of the petitioners.
6. I would, therefore, make the rule absolute and set aside the order of the learned Magistrate binding down the petitioners and quash the proceedings under Section 107, Criminal P. C.