Patna High Court
Jagdish Thakur And Ors. vs Jadoo Pandey And Ors. on 6 March, 1959
Equivalent citations: AIR1959PAT549, 1959CRILJ1460, AIR 1959 PATNA 549
ORDER H.K. Chaudhuri, J.
1. This application in revision is directed against an adverse order under Section 145 of the Code of Criminal Procedure passed by the learned Sub-divisional Magistrate of Arrah against the petitioners. On the basis of a police report dated 19-10-1956, "the learned Subdivisional Magistrate started a proceeding under Section 144 of the Code of Criminal Procedure. Notices were issued against the petitioners as well as the opposite party restraining them from going upon the lands the area of which was described as about 200 bighas. Later on, by an order dated 13-12-1956, the proceeding was converted into one under Section 145 of the Code of Criminal Procedure.
An order was also made attaching the disputed lands. The learned Sub-divisional Magistrate then deputed a pleader commissioner, one Mr, Mukhram Singh, to survey the disputed lands and ascertain the exact location thereof with reference to the nearest village which had been cadastrally surveyed. He was further asked to report whether the disputed lands were situate in village: Nauranga and Chak Nauranga, as claimed by the petitioners, or, in village Sonbarsa, as claimed by the opposite party.
He was also directed to show the exact location of the lands "after mentioning the name of the village in his case map which should include the boundary of the cadastrally surveyed village" with reference to which the exact location of the disputed lands had been ascertained. He was finally asked to prepare a map showing the area of the disputed lands claimed by different members of the parties. After the Commissioner's report was received, it appeared that the dispute was in respect of a much bigger area. The proceedings were thereupon amended on 4-4-1957, by addition of more parties. The subject of the dispute in the amended proceedings was described as follows :
"About 265 bighas of unsurveyed land of Sonbarsa Deara north of the Nala which is close north of the Sonbarsa Ke Dera ....."
2. The claim of the petitioners first party was that the lands in dispute formed part of and lay within their maujas --Nauranga and Chak Nauranga -- and that they being their ancestral kasht lands, they had all along been in possession of the same. The case of the opposite party, who were second party in the proceeding, was that the lands! appertained to and lay within mauza Sonbarsa and were in their possession. They claimed that they came in possession of these lands under settlements granted by the Maharaja of Dumraon.
3. Before the pleader commissioner appointed by the Court visited the spot an objection was made on behalf of the petitioners regarding his appointment on the ground that he was connected with the opposite party. This objection was, however, disallowed by the learned Sub-divisional Magistrate on 22-2-1957. On 23-3-1957, the pleader commissioner submitted his report. The main finding of the pleader commissioner was that the disputed lands lay within mauza Sonbarsa.
The Sub-divisional Magistrate considered the objections to the commissioner's report but held that they were without any merit. Thereafter the petitioners privately engaged a survey-knowing pleader, one Mr. Devi Dayal Choudhary, to hold local inspection. This gentleman submitted his report in due course along with an affidavit. His conclusion was that the disputed lands were situated partially in village Nauranga and partially in village Chak Nauranga.
In other words, his finding was completely at variance with that arrived at by the pleader commissioner appointed by the Court. Thereafter, the members of the second party, in their turn got the disputed lands surveyed privately by another pleader, one Mr. Amir Chand Lal. This pleader, came to the conclusion that the disputed lands lay within village Sonbarsa, as had been found by Mr. Mukhram Singh. The second party produced this report along with an affidavit in support of their claim in the case.
4. Apart from the three reports referred to above, the parties filed a large number of old and recent survey maps and various other documents, A large number of affidavits were also filed by the parties in support of their respective cases. On a consideration of all these materials the learned Sub-divisional Magistrate held that he was fully convinced that the disputed lands were situate in Sonbarsa Diara and that the members of the second party were in actual physical possession thereof. He accordingly declared the members of the second party to be in possession of the disputed lands and forbade any disturbance thereto until evicted therefrom in due course.
5. The first point raised by Dr. Sultan Ahmad appearing for the petitioners is that the judgment of the learned Sub-divisional Magistrate shows that he was all along under the impression that the total area of the subject of the dispute was, as stated by him in the opening lines of his judgment, 200 bighas only. It was, therefore, urged that the order of the learned Sub-divisional Magistrate must be held to be limited to this area only. It appears that after the order under Section 145 of the Code of Criminal Procedure was passed, there was a dispute between the parties with regard to the remaining 65 bighas of land, This gave rise to a proceeding under Section 107 of the Code of Criminal Procedure. On 4-8-1958, an order was passed in this case directing interim stay of further proceedings in the Section 107 case.
6. It is true that the learned Subdivisional Magistrate has stated in the opening paragraph of his judgment that the proceeding was in respect of 200 bighas of unsurveyed land. He, however, while referring to this area, was obviously thinking of the report of the local police. In fact, he stated that that was the area mentioned in the report of the local police. Thereafter he referred to the description and boundary of the lands as mentioned in the police report.
In the amended proceedings which were drawn up on 4-4-1957, it was however, clearly mentioned that the subject of the dispute consisted of 269 bighas of unsurveyed land of Sonbarsa Diara north of the Nala which was close north of the Sonbarsa Ke Dera. The boundaries of this area were also clearly set out in the amended proceedings. The mere fact that the learned Sub-divisional Magistrate did not in his judgment refer again to the area as 265 bighas is no ground for holding that he had passed orders in respect of a lesser area. In view of the amended proceedings it must be held that the learned Sub-divisional Magistrate's order was in respect of the entire area mentioned in the amended proceedings.
7. It was next urged by Dr. Sultan Ahmad that the learned Sub-divisional Magistrate was not justified in issuing a commission in this case to Mr. Mukhram Singh, pleader, inasmuch as under the amended Section 145(4) of the Code of Criminal Procedure he had no jurisdiction to do so. It was further urged that the learned Sub-divisional Magistrate had, by directing issue of the commission, delegated his judicial functions to the pleader commissioner. A Grievance was also made that in spite of the petitioner's prayer in that behalf, the learned Subordinate Magistrate did not allow them to cross-examine the pleader commissioner.
This, it was contended, held led to denial of justice to the petitioners. Under Section 145 (1), of the Code of Criminal Procedure a District Magistrate, Sub-divisional Magistrate or a Magistrate of the first class, on being satisfied as to the likelihood of a breach of the peace regarding a land dispute, may ask the parties to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and also to require them to put in such documents, or to adduce, by putting in affidavits, evidence of such persons, as they rely upon in support of such claims. Sub-section (4) of Section 145 then provides as follows:
"The Magistrate shall then, without reference to the merits or, the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the injury ...."
The use of the words "so put in" indicates that the Magistrate is to consider only such documents and affidavits which the parties choose to file. The learned Sub-divisional Magistrate was, therefore, wrong in using the report of the pleader commissioner as a piece of evidence in this case.
8. It is, however, not correct to contend that the learned Sub-divisional Magistrate had no jurisdiction to depute a survey knowing pleader or Amin to survey the subject of dispute and prepare a case map in a proceeding under Section 145 of the Code of Criminal Procedure under any circumstance. As has been held in Chulai Mahto v. Surendra Nath ILR 1 Patna 75 : (AIR 1922 Pat. 224 (2)), directions to draw up a map of the disputed land in proceedings under Section 145 of the Code of Criminal Procedure have been frequent in the past. There is no decision to be found showing that the power to issue such directions has been disputed.
There was no question in this case of the learn-ed Sub-divisional Magistrate having delegated his judicial functions to the Commissioner. The direction that he gave was to merely survey the disputed lands and prepare a map showing the different plots claimed by each claimant and to ascertain their identity with reference to the village to which they appertained. It cannot be urged that this was a local enquiry within the meaning of Section 148 of the Code of Criminal Procedure. As was observed by their Lordships in the aforesaid Patna case, it was a mere ministerial act.
The report of the commissioner could be considered in evidence only for the purpose of proving, that he surveyed the lands pointed out to him by the parties as being in dispute and showing which those lands were :
9. On behalf of the petitioners it was contended that the learned Subdivisional Magistrate was not entitled to take into consideration Mr. Mukhram Singh's conclusion that the disputed lands appertained to village Sonbarsa. Even if it be held that the learned Magistrate was not entitled to rely upon this part of the report, I am not prepared to hold that by doing so he committed an error of jurisdiction which would warrant an interference by this Court. A perusal of the judgment of the trial Court shows that it considered various maps, documents and affidavits filed by the parties and came to the conclusion independently of the report of Mr. Mukhram Singh that the disputed lands were situate in village Sonbarsa.
The judgment of the trial Court which is a well-written document, indicates that it took great care in sifting the materials placed before it before it came to the aforesaid conclusion. It also considered the report of the pleader commissioner engaged by the first party with great care and pointed out that his report was unacceptable. It is worthy of mention that the report submitted bv Mr. Amir Chand La], who was engaged on behalf of the op posite party, was similar to that of the pleader commissioner appointed by the trial Court.
His report, which was supported by an affidavit, wad undoubtedly a piece of legal evidence which) supported the conclusion arrived at by the learned Subdivisional Magistrate. For all these reasons I find myself unable to hold that the petitioners were prejudiced by the fact that the learned Subdivisional Magistrate considered the report of Mr. Mukhram Singh also regarding the disputed lands being situate in village Sonbarsa along with the various documents placed before him.
10. It was next urged that the ridges of the disputed lands on the spot lay north to south and not east to west, as alleged by the second party, and that there being this divergence in the cases of the parties, it was incumbent upon the learned Subdivisional Magistrate to hold a local inspection for which a" prayer had been made by the petitioners. I am not impressed with this contention. It was entirely discretionary with the learned Subdivisional Magistrate as to whether, having regard to the materials on record, it was necessary to hold such a local inspection or not. If in his discretion he thought that the evidence adduced by the parties did not require any elucidation or clarification by holding a local inspection his failure to do so cannot be criticised as an error of jurisdiction.
Quite apart from that, it appears that on 19-6-1957, when the application for local inspection was made, the attached lands had already come into possession of the lessee appointed by the Court. The lands were attached on 31-12-1956. This order was reiterated again when the proceedings were amended. Soon after the attachment the lessee came into possession. It is, therefore, clear that it could not be said in June, 1957, when the prayer for local inspection was made, that the position of the ridges and other characteristics had not been changed. At any rate, this was certainly not a matter which would justify interference with the order of the trial Court.
11. Finally, it was contended that the learned Subdivisional Magistrate had failed to consider certain important documents filed on behalf of the petitioners. The learned counsel drew my attention specifically to an order under Section 145 of the Code of Criminal Procedure passed by Mr. K. P. Narain and the judgment in Title Suit No. 3/25 of 1949/1953 following that order. In the application filed by the petitioners in this Court it was not stated clearly as to which particular documents had not been considered by the learned Magistrate. Further, it is undisputed that the Section 145 order and the civil suit related to some other lands.
Some observations may have been made in the judgment of the civil suit with regard to the lands in dispute in the present proceedings but those observations were obviously obiter and cannot bind the parties. Similarly, reference was made to certain rent receipts produced at the time of hearing by the opposite party. It was contended by the learned counsel that these rent receipts having been found to be unreliable in the civil suit should not have been relied upon by the learned Subdivisional Magistrate in the present proceedings. I do not think that any observation with regard to these rent receipts made in the civil suit was a bar to their being considered by the learned Subdivisional Magistrate in the present proceedings. It is significant that so far as the petitioners are concerned, they did not produce any rent receipts in support of their case.
12. In my opinion, therefore, there is no error or illegality in the order of the learned Sub-divisional Magistrate. The finding of the trial Court as to possession is based on evidence and there were materials before it on which it could come to such a finding. On a consideration of all these materials it was satisfied that the opposite party were in possession. I do not, therefore, think its order was without jurisdiction and that it can be interfered with by the High Court in revision.
13. In the result, the application fails and is dismissed. The stay order issued on 4-8-1958 is vacated.