Patna High Court
Baburam Rajeshwari Prasad Ojha And Ors. vs Deo Narain Sao And Ors. on 6 June, 1957
Equivalent citations: AIR1957PAT70
ORDER K. Dayal, J.
1. Criminal Reference No 111 of 1956 is a reference under Section 438 of the Code of Criminal Procedure by the Additional Sessions Judge, First Court, Gaya. The learned Judge has recommended that the order of the learned Sub-divisional Officer, Jehanabad, dated the 9th March 1956 be set aside and the proceedings under Section 145 of the Code of Criminal Procedure initiated under that order be quashed.
2. The relevant facts are these : The lands covered under the proceeding measure 68.37 acres in village Lodipore appertaining to Tauzi No. 63S8. These lands were settled with the wife of one Ram Rajeshwari before 1951. In 1951, there was a proceeding under Section 145 of the Code of Criminal Procedure between the petitioners who were the first party and the opposite party who there the second party in the proceeding. On the 3Dth October, 1952, the learned Magistrate declared the possession of the first party petitioners.
It was urged in the court below that, in the said proceeding, the parties were the same as in the present proceeding and the lands were also the same. This statement of fact was not challenged In the court below as incorrect. This order of the Magistrate in favour of the first party petitioners, passed on the 30th October 1952, was upheld by the learned District Magistrate by his order: dated the 20th July 1953. On the 30th October 1955, the second party again started creating trouble in the peaceful possession of the first party] On the 12th November 1955, a proceeding under Section 107 of the Code of Criminal Procedure was drawn by actainst the members of the second partyi (opposite party") by the Sub-divisional Officer, Jehanabad. This matter is the subject-matter of Criminal Revision No, 1306 of 1956 and. in view of the Criminal Reference (No, 111 of 1956), further proceedings in the Section 107 matter have been stayed on the ground that simultaneously two proceedings between the same parties in respect of the same land, one under Section 107 and the other under Section 145 of the Code of Criminal Procedure, were illegal and improper.
3. On the 30th December 1955, a proceeding; under Section 144 of the Code of Criminal Procedure was also drawn up and the same was converted into a proceeding under Section 145 of the Code by the Sub-divisional Officer, Jehanabad, by his order dated the 9th March 1956. It has been laid down in several decisions of this Court e.g., Ambika Thakur v. Emperor A.I.R. 1939 Pat 611 (A), Raghunandan Pandey v. Kishin Mohan Singh, 10 Pat LT 685 : A.I.R. 1922 Pat 210 (B), Jainath Pati v. Ramlakhan Prasad, 10 Pat LT 689 : A.I.R. 1925 Pat 505 (C), and Syed Mohammad Anzar Hussain v. Parmeshwar Mahto, Cri. Ref. No, 24 of 1956, decided by Das, C.J., On 23-4-1956 (Pat) (D), that the possession of the successful party in a proceeding under Section 145 of the Code of Criminal Procedure cannot be put an end to by the unsuccessful party by mere violence of surreptitious' Invasion.
It has also been laid down in those cases that the object of the Legislature will be frustrated if the party who has, on the 'finding that he is not in possession, been forbidden to disturb the possession of the successful party until evicted in due-course of law, is allowed to interfere with the possession of the successful party and to plead once more that whatever the order might have been, he Is still in possession or has been able to regain possession by force. The principles laid down in those cases clearly show that the preliminary order of the learned Sub-divisional Officer, Jehanabad, initiating a proceeding under Section 145, Code of Criminal Procedure, for the second, time between the same parties and over the same subject-matter was not sustainable in law.
4. Mrs. Dharma Shila Lall, appearing against the reference, has contended that the court below has proceeded on a wrong assumption of facts She has contended that the parties were not the same and, therefore, this case cannot be governed by the principles laid down in the decisions cited above, but that this case will be governed by the decision in Inderdeo Singh v. Kesho Singh, 18 Pat LT 886 : A.I.R. 1938 Pat 1 (HO, Which has been approved in Ambika Thakur's case (A) (supra). If appears to me that there Is no substance in the contention of Mrs. Dharma Shila Lall.
The fact that the parties and the subject-matter of the two proceedings were the same has-nowhere been challenged. This reference Is of the year 1956 and up till today, it has not been challenged. No affidavit challenging this fact has been filed. Besides, from the order under Section 107 of the Code of Criminal Procedure dated the 12th November 1955 passed by the learned Sub. divisional Officer, it appears that the Parties in the present cases are either the same or representatives of those who were narties in the previous proceeding nnrler Section 145 of the Code of Criminal Procedure Therefore, it aonears to me that the contention of Mrs Lall must be reject eel and this reference must be accented.
5. Hence I would direct that the proceedings drawn up by the learned Sub-divisional Officer, Jehanabad, under Section 145, Code of Criminal Procedure, by his order dated the 8th March 19BjB be quashed
6. Mrs. Lall, appearing for the petitioners to Criminal Revision No. 1306 of 1956, has conceded that, If the reference be accepted, Criminal Revision No. 1308 of 1956 must fail.
7. In the result, Criminal Reference No. 111 or 1956 is accepted and Criminal Revision No. 1306 of 1956 is dismissed.