Patna High Court
Ram Bahal Singh And Ors. vs Rang Bahadur Singh on 15 August, 1923
Equivalent citations: 82IND. CAS.367, AIR 1924 PATNA 804
JUDGMENT Foster, J.
1. These are petitions preferred both by the first and the second parties in a proceeding under Section 145 of the Criminal Procedure Code which has been decided by the learned Sub-Divisional Officer of Dinapore. The property in dispute is 643 acres. It is the first party's case that they purchased quite recently from one Saudagar whose name was entered in the Record of Rights as the raiyat in respect of this area. The second party claim to have purchased from Mr. Jugeshwar Prasad, a Pleader of the Patna District Court. Both parties are co-sharers in the village. But it is the case of the second party that the land is zerait belonging to his vendor's takhta, and it is the case of the first party that the land was the raiyati land of Saudagar, his vendor. There has been some litigation, and some years ago Mr. Jugeswar Prasad brought a suit against Saudagar Singh claiming a declaration that the entry in the Record of Rights was incorrect. In that suit Saudagar Singh filed a petition admitting that he had nothing to do with the land. Of recent years the predecessor of the first party has as co-sharer been obtaining decrees against Saudagar for rent and, as I said before, had purchased the holding from Saudagar last year. Now the Magistrate calls this a most complicated case and after reviewing some of the arguments of the parties as to possibility of their claim he states that in view of the conflicting documentary evidence and the extreme paucity of oral evidence as to possession (all the witnesses on both sides admitting that they know no details of possession worthy of note) it is quite impossible to come to any decision as to who is in possession of the disputed land.
2. Thereupon the Magistrate passed an order in accordance with Section 146 of the Criminal Procedure Code.
3. Now, I am not satisfied that this order is one that has faithfully followed the spirit of the law. In my opinion it should be held as a very important principle in cases under Section 145, Criminal Procedure Code, that a Magistrate should be extremely reluctant to attach the property in dispute. It is quite intelligible that he might be in a position to say with confidence that he was unable to satisfy himself as to the possession of the parties in cases where the land is jungle or waste. But where, as here, there is land admittedly subject year by year and season by season to cultivation, is appears to me that the Magistrate is only admitting his own weakness when he states that he cannot come to a decision. He has before him two parties quite ready with information. The information may be true or false, but it is his duty to collect information and sift it. After all, the order under Section 146 is almost the same as an act of confiscation and, therefore, the Magistrate should naturally be reluctant to make use of that section. Much of what I have said as regards the duty of a Magistrate to collect and sift the evidence before proceeding to attachment under Section 146 is inspired by what I have seen on the record of this particular case. I am not satisfied that the Magistrate is accurate when he states that the witnesses on both sides have admitted that they know no details of possession worthy of note. Had such an occurrence taken place this case would be indeed an unusual one, but I consider this sweeping statement to be a misdescription of the oral evidence. It has been pointed out to me that the oral evidence does contain specific statements as to possession, and in the arguments of the parties it has been emphasized that the treatment accorded to their oral evidence is not in conformity with the provisions of Section 145(4) of the Code. The Magistrate has not considered the effect of the evidence and he has not taken such further evidence, if any, as is necessary. It is clear here that before proceeding to seize the property he could have and should have offered to take further evidence, if further evidence was necessary for a decision. I, therefore, set aside the order passed under Section 146 of the Criminal Procedure Code in this case. The case will proceed to further hearing.