Patna High Court
Lachmi Ojha vs Birja Misser And Ors. on 21 February, 1921
Equivalent citations: 63IND. CAS.152, AIR 1921 PATNA 173
JUDGMENT Jwala Prasad, J.
1. This is an application against an order of the Magistrate, dated the 11th December 1920, attaching the land in dispute under Section 146 of the Code of Original Procedure.
2. The first party claims the land by virtue of three rahan deeds: two of 1907, and one of 12th February 1920, executed by Gauri Shanker and his father Raj Bansi. The land covered by the rahan deeds, amounts to 5 bighas. The rest of the land is claimed by the first party on the strength of a patta said to have been executed by the aforesaid persons on the 20th of January 1920. The total area of land in dispute is about 14.61 acres.
3. The second party consists of Birja Misser, Sheosaran Ahir and 12 others. Sheosaran Ahir claims the land by virtue of a settlement said to have been made by him with Birja Miiser as guardian of Gauri Shanker, who is said to be a lunatic and with respect to whom a proceeding is pending before the District Judge for the appointment of a guardian. The other members of the second party, about 12 in number, are the old tenants of the land against whom Gauri Shanker and his father had litigation in the Civil Court, which resulted in favour of Gauri Shanker, and delivery of possession was effected on the 14th February 1920. These persons do not lay any claim now to the land in dispute and, therefore, they need not be considered.
4. As regards the other two members of the second party, Birja Misser and Sheosaran Ahir, the Magistrate has held that they have not been able to prove their alleged settlement or possession over the disputed land. Therefore, the only person before the Magistrate was the first party whose possession he had to consider. The rahan deeds are undisputed and so also the settlement. The Magistrate has held that the title and the right of possession with respect to the lands exists in favour of the first party, bat he refuses to decree the possession under Section 145 of the Code of Criminal Procedure for the reason stated by him as follows:
It is not established that after delivery of possession by the Civil Court Lachmi was put in possession. There is no documentary evidence to show subsequent acquisition of possession by Lachmi. The oral evidence is not reliable.
5. The Magistrate has not given any reason for discrediting the oral evidence of possession of the first party. He has not, therefore, disposed of the case before him, according to law. The general remark that the oral evidence is not reliable, without referring to it and without giving any reason, is not a disposal of the evidence upon the record. It amounts to a refusal to exercise the jurisdiction vested in him by law and is remediable by this Court in revision. Again, the first party derives its title from Gouri Shanker, who obtained the delivery of possession from the Civil Court on the 14th of February 1920. In fast, the 1st party's case is, therefore, based derivatively upon the delivery of possession. This having been accepted by the Court to have been properly executed by the Civil Court, the benefit of the recent delivery of possession by the Civil Court must have been given to the first party, inasmuch as Gauri Shanker or his father, who died only id Baisakh last, did not object to the claim of the first party. The Magistrate appears to have been influenced by the fact that Gauri Shanker is a lunatic and perhaps his interest will be jeopardised by an order in this case behind his back, for he expressly states that the order of attachment passed by him is not binding of Gauri Shanker or the guardian who will be, appointed by the Civil Court. The proceeding under Section 145 was presumably instituted on account of danger to a breach of the peace and if the Magistrate believed that Gauri Shaaker or his guardian was interested in the subject-matter of the dispute, he was bound to bring him on the record to decide once for all the right of possession of the can lending parties in order to prevent a breach of the peace, for which purpose alone Section 145 has been enacted.
6. Again, the order of attachment in the present case, stating that a particular person is not bound by the order and further saying it "will cease in favour of Gauri Shanker when he regains sanity or in favour of his guardian when one is appointed by the District Judge," amounts to declaring Gauri Shanker to be in possession of the property on the happening of a certain contingency, an order which can only be passed under Section 145 and not under Section 140, Gouri Shanker was not a party and so no order could be passed by the Magistrate declaring him to be in possession of the property. The order of the Magistrate is, therefore, bad and must be set aside. The Magistrate will no doubt start a proceeding under Section 145 in case of danger to a breach of the peace and decide it after bringing all the persons interested on the record.