Patna High Court
Ayodhya Prasad Tewari vs Hopal Manjhi And Ors. on 31 January, 1967
Equivalent citations: 1970CRILJ115
ORDER B.N. Jha, J.
1. This application by the second set of second party in a proceeding under Section 145 of the Code of Criminal Procedure is directed against the order of the Magistrate dated the 14th Jane, 1967, declaring the possession of the first party. The disputed lands appertain to khata NOS. 124 and 171 of village Bajgaon tola Barmasia, police station Pirpainty, district Bhagalpore. The lands of khata NOS. 124 and 171 belonged to Sheikh Ishaque and Sheikh Ismail who were the occupancy raiyats in respect of the aforesaid lands. Under khata No. 121 there were several sikmi tenants at the time of the record of right. It is not necessary to give them in detail. Lands of khata No. 171 originally belonged to one Sarwang Manjhi as laiyat who sold them to Sheikh Ishaque and Sheikh Ismail by virtue of a registered sale deed. It may be mentioned that before the purchase by Sheikh Ishaque and Sheikh Ismail they were the usufructuary mortgagees of the said lands.
2. The case of the members of the first party is that they are heirs of the different sikmidars who were in possession of the lands, and they have been cultivating and dividing the crops with the maliks. As regards the lands of khata No. 171 their case is that after the sale, the purchasers gave the lands to Sarwang Manjhi on batai and after the death of Sarwang Manjhi, his heirs have been coming on in possession of the lands and dividing the crops with Sheikh ishaque and Sheikh Ismail.
3. The case of the petitioner is that the sikmidars recorded under khata No. 124 died and after their death the landa came in khas cultivating possession of Sheikh Ishaque and Sheikh Ismail and since then they' have been coming on in peaceful possession of the same. With regard to the landa of khata No. 171, his case is that after the purchase by Sheikh Ishaque and Sheikh Ismail, the lands remained in their khas cultivating possession and the lands were never given to Sarwang Manjhi on batai. The petitioner purchased the lands of khata Nos. 124 and 171 by virtue of a registered sale-deed dated the 8th April, 1961 from the heirs of Sheikh Ishaque and Sheikh ismail and since then he has been coming on in peaceful possession of the same. His case further is that there was no apprehension of a breach of the peace. A false report of the apprehension of a breach of the peace was sent in the name of the Uppanch and on that a proceeding under Section 144 of the cade of Criminal Procedure was drawn up which was subsequently converted into a proceeding under Section 145 of the Code.
It may be mentioned that in the Court below the said Uppanch filed an affidavit denying to have filed any such application before the Sub-divisional Magistrate informing him that there was an apprehension of a breach of the peace in respect of the disputed lands. His case further is that Mohammad Hussain, the first set of the second party, was a dismissed servant of the maliks Sheikh Ishaque and Sheikh Ismail and being dissatisfied he set up the Manjhi first party to claim the lands as heirs of the recorded sikmidars and he has himself falsely, claimed the lands on the basis of settlement from Sheikh ishaque and Sheikh Ismail. The petitioner further asserts that after his purchase he sold some of the lands to the third pirty who are in possession of the said lands. Mohammad Huasain, first set of the second pirty, as stated above, claimed the entire disputed lands on the basis of oral settlement from the raiyats i. e. from Sheikh Ishaque and Sheikh Ismail. The members of the third party claimed possession in respect of certain lands on the basis of their purchase from the petitioner.
4. The parties filed written statements and adduced evidence in support of their respective claims. The learned Magistrate referred the matter to the Subordinate Judge Bhagalpore, who held possession of the first party by his judgment dated the 9th May, 1967, and, accordingly, the Magisrate, Bhagal. pore, declared possession of the first party by his order dated the 14th Jane 1967. Hence this application by the second set of the second party. Mohammad Husain, the first set of the second party has not moved this Court against the aforesaid order.
5. Learned Counsel for the petitioner raised several contentions before me. He contended that the Magistrate erred in law in referring the matter to the civil Court without applying his mind to the written statements and evidence filed by the parties and, therefore, the whole order of reference was invalid and subsequent proceedings thereafter were also invalid in law. He also challenged the judgment of the Subordinate Judge who decided the question of possession on reference on the ground that the learned Subordinate Judge failed to consider the documents filed by the petitioner. It was further contended that the learned Subordinate Judge wrongly construed that the lands of khata No. 171 were sikmi lands as the lands of khata No. 124. It was further contended that the learned Sub-ordinate Judge failed to consider the fact that the heirs of the sikmidars had no concern after the death of the recorded sikmidars as sikmi rights were not inheritable.
Besides that, it was contended, that none of the members of different sets of first party came to file affidavit in support of their respective claims of possession which supported the case of the petitioner that it was Mohammad Hussain, first set of second party who had set up the 1st party and was fighting out the case on behalf of the first party. Learned Counsel also drew my attention to the fact that Murli Manjhi was sikmidar in respect of plot Nos. 524, 526, 549 and 755 of khata No. 124. Bishwanath Manjhi son of Murli filed an affidavit supporting the possession of the petitioner and disowning his own interest and possession in respect of those lands. One Suphal Manjhi filed an affidavit on behalf of the first party that the aforesaid Bishwanath Manjhi was not the son of Murli Manjhi but a son of his brother Murli. The Subordinate Judge decided the case on the affidavit of Suphal Manjhi that Bishwanath is not the son of Murli Manjhi who filed an affidavit on the 9th July, 1965 in support of the petitioner's case.
But the learned Subordinate Judge overlooked the fact that an affidavit was filed by Suphal Manjhi on the 16th April, 1966 to the effect that be never filed any affidavit in favour of the first party, stating therein that Bishwanath is not the son of Murli Manjhi. He asserted that Bishwanath who filed the affidavit in support of the petitioner is the son of Murli Manjhi. He further contended that the learned Subordinate Judge had simply made a catalogue of the affidavits filed on behalf of the parties. He submitted that a number of affidavits of boundary witnesses have been filed in support of the case of the petitioner but the learned Subordinate Judge has not considered the contents of those affidavits nor has he given any reason for rejecting them. Hence learned Counsel for the petitioner submitted that the entire judgment of the learned Subordinate Judge is vitiated on account of the several infirmities stated above. In view of the order which I propose to pass in this case it is not necessary for me to consider whether the judgment of the learned Subordinate Judge is vitiated on those grounds or not because, in my opinion, the whole order of reference is bad in law and must be set aside.
6. The learned Subdivisional Magistrate while referring the matter to the civil Court, passed the following order on the 15th July. 1966:
The record has been perused by me. After perusal of the same I am of the view that it is a complicated matter which I am unable to decide as to which of the parties were in possession when the proceeding had been started over the subject matter of dispute in this proceeding. The subject matter of dispute continues to be attached under Section 145(4), Criminal P. C. Statement of facts concerning cases of all parties have been put up in their written statements. Documents and affidavits have also been filed which are on the record.
With this observation the record is referred to the civil Court of competent jurisdiction under Section 146(1), Criminal P. C. for necessary recording of findings under Section 146 (1-A), Criminal P. C. Parties to appear in the said Court on 28-7-66.
The order of reference shows that the magistrate has not applied his mind to the case of the parties nor to the evidence, both documents and affidavits, filed by them in support of their respective cases. Therefore, it is quite clear that the Magistrate has shirked his responsibility in referring the matter to the civil Court. It was observed by this Court in the case of State of Bihar v. Hari Mishra as follows:
It would appear that the Magistrate has no unrestricted powers to make a reference at his option as and when he likes to do so. It is obligatory on him that upon making any reference, he must try to form his own independent opinion as to possession and it is only when, on a consideration of the evidence adduced before him in the form of affidavits or documents, he is unable to decide which of the party was in possession or is of opinion that none of the parties was in possession, that he may attch the property and refer the case to the civil Court of competent jurisdiction for its decision and while so doing he must have to draw up a statement of the facts of the case and forward the record to the civil Court. It is then that the civil Court is clothed with the jurisdiction to decide the question of possession after perusing the evidence already given before the Magistrate and taking such further evidence as may be produced before it by the parties. The civil Court, however, is not to pass any final order but it will only transmit its decision to the Magistrate, who, as provided in Sub-section (I.B) of Section 146 has to pass an order in conformity with the decision of the civil Court. A Magistrate cannot shirk his responsibility and refer any proceeding to the civil Court without first applying his mind to the facts of the case. It was pointed out by a Division Bench of this Court in Shreedhar Thakur v. Kesho Sao .
A Magistrate cannot take recourse to Section 146(1) merely for the purpose of shifting his own responsibility. It is only when either of the two contingencies mentioned in the sub-section arises, that he can refer the case to the civil Court.
In that case the matter came before this Court on a reference made by the Munsif Magistrate as to whether the order of reference was bad in law or not. It was held in that case that the order of reference was incompetent and in such a circumstance any decision that may be given by the civil Court or even taking fresh evidence before it would be surely without jurisdiction.
7. Learned Counsel for the opposite party drew my attention to the cases of Candradip Singh v. R.B.B. Verma . It was contended that in those cases the order of reference was not held incompetent on that ground. In the former case the judgment of the civil court was set aside on different grounds and in the latter the whole proceedings were quashed on the ground of in. competency of the referenoe as well as on the ground of vagueness in the proceedings. In my opinion, the present case is fully covered by the Division Bench decision in the case of referred to above, and the order of reference in such circumstances, is bad in law and must be set aside.
8. For the reasons stated above, the application is allowed, the order of reference passed by the Magistrate on the 15th July, 1966, referring the matter to the civil Court and consequently the judgment of the learned Subordinate Judge dated the 9th May, 1967 and the order of the Magistrate dated the 14th June, 1967 passed on the basis of the said judgment are hereby set aside. The case is remitted back to the Sub-divisional Magistrate, Bhagalpore who will place this case before some Munsif-Magistrate for disposal according to law. It will be, however, open to the parties to raise all possible contentions there as they may think proper.