Patna High Court
Chulai Mahio And Ors. vs Surendra Nath Chatterji And Ors. on 3 November, 1921
Equivalent citations: 65IND. CAS.616, AIR 1922 PATNA 224(2)
JUDGMENT Adami, J.
1. The petitioners were the third party to proceedings drawn up by the Deputy Magistrate, Bhagalpore, under Section 145, Criminal Procedure Code; they apply to have the order passed in favour of the first party to those proceedings set aside.
2. It appears that after the proceedings under Section 145 showing the boundaries of the lands is dispute had been served on all the parties, the first party on their written statement declared that the disputed 378 bighas of land with the boundaries as shown in the proceedings could not be identified, nor was there any trace of such lands to be found in village Didarpur. On the 18th February 192 the Deputy Magistrate passed the following order:
First party states that the lands are not at all identifiable, the other parties assert that they are identifiable. The first party offers to pay the costs of a Survey passed Pleader Commissioner for identifying the lands as per proceedings drawn up and report to this Court. I think this is reasonable and I direct the first party to deposit Rs. 100 and then I shall appoint a Commissioner.
3. A Commissioner was appointed, who went to the lands in dispute and submitted a map and report on the 10th of April. Copies of the report were furnished to the parties and the Pleader Commissioner was examined and cross-examined as a witness, and after his cross-examination on the 14th of May the Vakil for the first party contended that as the report showed that the land, bounded as shown in the proceedings, was not identifiable, the proceedings should be cancelled. The other parties apparently resisted the contention. The Deputy Magistrate passed the following order:
Heard the parties on the contention of the learned Vakil of the first party that the Pleader Commissioner having reported that the lands are not fully identifiable according to the boundaries given in the proceedings, the same, i.e., the proceedings, should be cancel led. I hold that the Pleader Commissioner's report and evidence are only evidence and not a final judgment and that it is liable to be challenged by the parties who are entitled to produce further evidence in Court. I, therefore, decide to go into the evidence in the case.
4. On subsequent dates the witnesses produced by the three parties respectively were examined, and the Deputy Magistrate then delivered judgment declaring the first party to be in possession of the disputed lands.
5. The chief contention raised by Mr. S.N. Sahay on behalf of the petitioners is that the Deputy Magistrate, dealing with a case under Section 145, Criminal Procedure Code, has no jurisdiction to direct a Pleader Commissioner to bold a local enquiry and cannot receive in evidence a report drawn up by the Commissioner after completing the inquiry. He argues that Chapter XII of the Code of Criminal Procedure furnishes a complete code of procedure for the prevention of breach of the peace arising but of disputes as to immovable property, and that the only provision in that Chapter allowing any delegation is that contained in Section 148, which runs:
Whenever a local inquiry is necessary for the purposes of this chapter, any District Magistrate or Sub-Divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry, and may furnish him with such written instructions" consistent with the law for the time being in force "as may seem necessary for his guidance, and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid. The report of the person so deputed may be read as evidence in the case.
6. So that the Magistrate who has drawn up proceedings is precluded from deputing any one other than a Magistrate to hold any local inquiry whatever. He argues that if there is, in the opinion of a party, the necessity to have the lands demarcated or surveyed and inquiry made locally, that party should privately engage its own man to make the survey and inquiry and then put him into the witness box and examine him like any other witness, and let him be cross-examined, for the Court is likely to give more weight to the evidence of an officer appointed by itself to do work locally than to that of a witness produced by one of the parties.
7. Now, if the question were whether a Magistrate who has drawn up proceedings under Section 145, Criminal Procedure Code, is empowered to delegate any of his judicial functions to any person other than a Magistrate, or if such person were directed to report who was in possession of certain lands, there could, I think, be no doubt that the answer would be in the negative. Here, however, the direction was merely, "to survey the disputed lands and report within 15 days."
8. All the person had to do was to ascertain from the parties what lands were in dispute and then to survey the lands pointed out and to draw up a map and report what he had done. This was a ministerial act; whether the duty of survey was entrusted to a Pleader Commissioner or to an amin makes no difference; steers cannot be laid on the fact that the person selected to do the work bore the title of Pleader Commissioner.
9. I cannot hold that the mere survey of the lands after enquiry from all the parties as to what land was in dispute amounted to a local inquiry" within the meaning of Section 148, Criminal Procedure Code. It was a mere ministerial act.
10. It is to be noted that Section 148, Criminal Procedure Code, given the special privilege to a report made by a Magistrate under its provisions, that such report may be taken into evidence without calling the Magistrate to prove it. In the present case no such privilege was claimed and the Pleader Commissioner was called as a witness and examined and cross-examined.
11. If Mr. Sahay's contentions were correct a Magistrate who had drawn up proceedings under Section 145, Criminal Procedure Code would, in almost every case, be unable to get a map prepared of the disputed lands for there are few, if any, Magistrates who are competent to carry out a survey and prepare a map. Directions to draw up a map of the disputed land in proceedings under Section 145 have been frequent in the past and there is no decision to be found showing that the power to issue such directions has been disputed, except the case of Achambit Das v. Sarada Prosad 12 Ind. Cas. 88 : 12 Cr. L.J. 480 where it was held that the Court has power to depute a kanungo to demarcate disputed lands in proceedings under Section 145.
12. In the present case the Pleader Commissioner was examined and cross-examined by the present petitioners without objection by them as to his delegation, and I hold that the Court was fully empowered to refer to his evidence and to the map he prepared. His report should not have been admitted in evidence except for the purpose of proving that he surveyed lands, pointed out to him by the parties, as being in dispute and showing which, those lands were, but a perusal of the judgment shows that the Court did not rely on this report, the case was decided on the evidence as to possession given by the parties and the only reference made to the Commissioner or his report is the remark, after the finding that boundaries mentioned in kabuliyats relied on by the present petitioners were entered therein without a visit to the lands, "no wonder, therefore, that the Pleader Surveyor found that boundaries given in the kabuliyats of the tenants (third party) could not be identified on the spot."
13. Even if the report had been wrongly relied on, that would not amount to an error or want of jurisdiction which would warrant an interference of this Court.
14. I hold that there was no defect as to jurisdiction in the direction to the Pleader Commissioner to survey the disputed lands and report.
15. It is next contended that, as the first party asserted from the first that the lands could not be identified, the Deputy Magistrate could not award them possession of lands which did not exist. This is not a question of jurisdiction, and apart from this, the petitioners throughout asserted that the lands mentioned in the proceedings could be identified, and they cannot now be allowed to assert the contrary; they "chose to wait and take the chance of judgment in their favour, and cannot now be heard to complain of excess of jurisdiction."
16. Marsden v. Wardle (854) 3 El. & B1. 695 at p. 70l; 2 Com. L.R. 1707 : 23 L.J.Q.B. 263 : 18 Jur. 578 : 2 W.R. 455 : 118 E.R. 1302 : 97 R.R. 711, Kulada Kinkar Roy v. Danesh Mir 33 C. 33 at p. 45 : 10 C.W.N. 257 : 2C.L.J. 271 : 2 Cr. L.J. 670 (F.B.).
17. The third point argued by the learned Counsel for the petitioners, namely, that the petitioners were induced to execute kabuliyats in favour of the first party by their properly constituted agent, and that, therefore, the first party were estopped from giving evidence to show that they, and not the petitioners, were in possession, raises no question of jurisdiction, and, apart from this, the finding being that effect was not given to the kabuliyats, they do not stand in the way of evidence being given to show what the actual possession was at the time proceedings were taken.
18. I would dismiss the application.
Ross, J.
19. I agree.