Patna High Court
Dewan Singh And Ors. vs Deo Narain Singh And Ors. on 28 August, 1950
Equivalent citations: AIR1951PAT253, AIR 1951 PATNA 253
ORDER Ramaswami, J.
1. The dispute in this case relates to 2 bighas being a portion of plot No. 537 in village Chak Pitambarpur. The petitioners claimed that the entire plot was recorded in the name of their ancestors, that they had been paying rent to the landlords for which they had obtained receipts and that they were in possession of the plot for a long time. The opposite party, on the contrary, asserted that in 1326 their ancestor Garib Das Singh had purchased the land by a sada sale-deed from Imrit Mahto. After the purchase of Garib Das Singh and after him the opposite party had come into possession of the land. On 17-3-1950, the Sub-Divisional Magistrate issued notice under Section 144, Criminal P. C., against one of the parties restraining them from going near the disputed land. On 9-4 1950, both the parties showed cause, and on 26-4-1950 the learned Magistrate made the order absolute in favour of party 1 and vacated the order against party 2,
2. Party 1 moved the Additional District Magistrate of Patna who set aside the order of the Sub Divisional Magistrate. Purporting to act under Section 144 (4), he rescinded the order made against party 1 and "made the order under Section 144 absolute against the petitioners "
3. The first question in this ease is whether this order made by the Additional District Magistrate is within his jurisdiction. In support of this rule, learned counsel argued that under Section 144 (4), the Additional District Magistrate cannot substitute an order of his own forbidding the petitioners from going to the land and such an order was without jurisdiction. In my opinion, this argument is well-founded. In Ganpat Singh v. Emperor, 3 pat. L. J. 287 : (A. I. R. (5) 1918 Pat. 672 : 19 Cr. L. J. 880) a similar order passed by the District Magistrate of Gaya was held to be without jurisdiction. Learned counsel for the opposite party sought to distinguish this case on the ground that the Sub-Divisional Magistrate had made a conditional order in the first instance against the petitioners, but it is material to notice that on 26-1-1950 the Sub-Divisional Magistrate had expressly vacated the conditional notice against the petitioners. It is manifest that on 19-5-1960 the Additional District Magistrate had no jurisdiction to make an order under Section 144 absolute against the petitioners, for Section 144 (4), Criminal P. C., contemplates only a change in the nature of the order made and not a change in the party against whom it is made, In my opinion, that portion of the order of the Additional District Magistrate by which he has made the order under Section 144, Criminal P. C., absolute against the petitioners, is without jurisdiction.
4. For the opposite party, it is pointed out that in any event the order of the Additional District Magistrate has spent its force by reason of expiry of two months to which its effect is confined, and the High Court ought not, there, lore, to interfere in this case. This argument is correct for there are authorities to the effect that, it is not the usual practice of the Patna High Court to interfere with an order of the Magistrate which has spent its force by lapse of time. Learned counsel for the petitioners has pointed out that there are exceptional reasons in the present case. He has pointed out that the order was in the first place without jurisdiction, and, secondly, that there are crops standing, and if the order was not interfered with, parties may be under misapprehension as to their rights to the crops on the land. There are several authorities of this Court to the effect that where the order under Section 144 affects the future rights of the parties, the High Court will interfere if it is illegal, even if the order has spent its force. (See Panchkesar Kuar v. Madho Singh, 19 P.L.T. 796 and the Joint Agents I. G. N. & R. S. N. Go. Ltd., Digha v. Chandra Ketu Narain Singh, 14 P. L. T. 879 : (A. I. R. (20) 1933 pat. 185 : 34 Cr. L. J. 717). In my opinion, there are circumstances in the present case which make it necessary for the High Court to interfere with the order of the Additional District Magistrate.
5. On these grounds, I would make the rule-absolute and set aside the order of the Additional District Magistrate dated 19-5-1950 by which he makes the order under Section 144, Criminal P. C., absolute against the petitioners with respect to the land in dispute.