Patna High Court
Raghunandan Pandey vs Kishin Mohan Singh And Ors. on 14 July, 1920
Equivalent citations: 77IND. CAS.1005, AIR 1922 PATNA 210
JUDGMENT Jwala Prasad, J.
1. This application is deeded against an order of the Magistrate, dated the 9th June 1920, declaring the possession of the second party under Section 145 of the Code of Criminal Procedure.
2. Righunandin Pandsy, first party, is the applicant before us. The second party consists of Kishun Mohan Singh, Dharam Lal Singh and Sheo Tahal Rai.
3. The subject-matter in dispute is plot No. 1705 of the Cadastral Survey. The litigation is a long standing one and has become a matter of ancient history which has been given in detail in the judgment of this Court, dated the 7th November 1918, in a previous proceeding under Section 115 of the Code.
4. Raghunandan Pandey, first party, was also first party in that case. Sheo Tahal of the second party in this case was along with Ramrekha Rai and others, second party in that case.
5. The first party purchased on the it 6th January 1917 at an auction sale held in execution of a decree against Ramtekha Rai and his sons, the property of the judgment-debtor and obtained writ Exhibits A and A-1 referred to in the judgment of this Court.
6. On the 23rd April two members of the second party in that case Prayag and Ram Kishore instituted proceedings under Rules 100 and 101 of Order XXI. of the Code of Civil Procedure disputing the right of the decree-holders to take possession of the properties on the ground that they were not parties to the Civil Court sale and the dakhaldahani. Their objections were disallowed and the possession given by the Court was confirmed on the 16th August 1917. A few months after that, the possession of the first party auction-purchaser was interfered with on the spot. The Police reported in the 17th January that the first party was in possession of the properties and that the judgment-debtors and others at their instigation were trying to disturb his possession. A proceeding under Section 145 was accordingly instituted. The proceeding is dated the 23rd January 1918 and is Exhibit 3 in this case. It was proclaimed and served on the spot, per report of the Sheriff of the Court, dated the 30th January 1918. Plot ho. 1705 is mentioned in the proceeding as being the subject-matter of dispute.
7. The Magistrate was, therefore, under misapprehension in saying that it is not clear that the former case under Section 145 "affected Survey Plot No. 1705 which is the subject matter of the present case. This in itself vitiates has order under Section 145. If he had looked to Exhibit 3, the proceeding in the former case and the Sheriff's report he would not have made this remark and the fact that the present plot was also the subject-matter of the previous proceeding under Section 145 was a very material fact for the determination of the present proceeding before the Magistrate. The delivery of possession, by the Civil Court to the first party and the proceedings adopted by some of the persons at the instigation of the judgment-debtors under Sections 100 and 101 of the Code of Civil Procedure, were fully dealt with in the judgment of this Court in that case and it was held that the first party was in possession of the property, and the only remedy of persons affected by it was to go (sic) Tahal Rai one of the second party in the present case concerned, for he was also a party in the previous proceeding. Clause (3) of Section 145 of the Code of Criminal Procedure requires that a copy of the order of the Magistrate under Clause (1) of the section, namely, the proceeding under Section 145, shall be published by being affixed to some conspicuous place at or near the subject-matter of dispute. This is a new clause and is eintended to give notice to the persons "interested in the subject-matter of the dispute to come forward and be made parties to the proceeding. As far as the Magistrate' is concerned, the question of possession is this set at rest once for all and thereafter he should maintain the order by taking action under Sections 107 and 144 as the case may be against persons interfering with the possession of the party declared by the Magistrate to be in possession. Therefore, the proceeding in the previous case is binding upon the whole world. In the other casa the order of the Magistrate declaring the second party to be in possession was set aside and it was held that the first party was in possession of the property under the recent writ of dtikhaldahani of the Civil Court. In that view the Magistrate was directed to see that the possession of the first -party was not interfered with in any way. This virtually was a declaration under Section 145 in favour of the party and the Magistrate should have acted upon the directions given by to is Court and protected the first party from being interfered with in its possession.
8. The Magistrate has disregarded the order of this Court and has embarked upon after investigation into the question of possession on the ground stated by him that Kishun Mohan Singh of the second party was not a party in the previous Section 145 case. As shown above, this position is untenable.
9. Another reason for re-opening the proceeding is stated by the Magistrate to be that he was not a party also in the Civil Court decree and the dakhaldahani, but, as shown in the previous judgment of this Court, the possession was effectively delivered by the Civil Court, to the first party, and the only course open to persons other than the judgment debtors was to apply under Section 100 of the Code and thereafter to institute a regular suit. As a matter of fact two other persons, who subsequently became parties in the former proceedings under Section 145, Criminal Procedure Code, made, such applications, which after investigation by the Civil Court were dismissed. It was in the circumstances held that the order became final and conclusive under Section 103 and that order was binding upon the Criminal Court under Section 145 so far as the question of possession is concerned.
10. Thus the grounds upon which the Magistrate has re-opened the question of possession are untenable.
11. Again the Magistrate in his order has not specified as to whether the three persons" members of the second party, were jointly or severally in possession of the property. If they were jointly liable the former proceeding under Section 145 operating against Sheo Talal Rai, one of the embers, is also conclusive against the other members also. If, on the other liana, they were separately in possession the Magistrate ought to have said so and to have specified as to which of them was in exclusive possession. The matter is concluded by the subsequent decree of 1he Civil Court Exhibit 4 dated the 13th September 1919 filed before the Magistrate).
12. Sheo Tahal Rai very rightly under the directions of this Court in the previous proceeding under Section 145 along with others lodged a civil suit fore declaration of his title and recovery of possession of the property with respect to which an adverse order was passed against him. In that case a number of per; 011s have been arrayed as plaintiffs and defendants.; Sheo Tahal Rai knew full well who were, the persons interested in the subject-matter and it is conspicuous that although in the present proceeding he claims to be in possession of the property along with two other persons and the order of the Magistrate has been made jointly in favour of all of them, yet he did not make them parties in the evil suit. It clearly shows that Kishun Mohan Singh and Dharam Lal, two members of the second party in the present proceeding, had no interest in the property. That case was decided against the plaintiff. Sheo Tahal Rai, and the right, title and possession of the first party was confirmed and the previous delivery of possession of the Civil Court was also upheld. The second party, Sheo Tahal Rai, has no locus stand in the present proceeding and for the matter of that, the other party Kishun Mohan Singh and Dharam Lal Singh. The Magistrate has disregarded the decree of the Civil Court which was Exhibit 4 produced before him and which under Section 145 was conclusive as to the rights of the parties to possession of the property in suit. The fact that the plot was not mentioned in the Original Civil Court writ of delivery of possession, does not affect the question, for at that time the survey plots were not known The property was id entitled in the former proceeding which clearly mentions Plot No. 1705 as the subject-matter of the dispute. It has also been specified in the Civil Court decree. (Exhibit 4 dated the 13th September 1919).
13. The order of the Magistrate is, therefore, without jurisdiction and is set aside.
14. It is strange that the Magistrate in this particular case is bent upon disregarding the repeated orders and decrees of the Civil Courts at the instance of one person or the other. If the man declared by the Civil Court to be rightful owner of the property and entitled to possession of the same, be driven to litigation in. this way, perhaps there will be no end to it for everybody in the village one after the other w-11 come forward to dispute his right. It was clearly held in the previous proceeding by this Court and also by the Police in that proceeding that the judgment debtors were instigating the persons not parties to the decree to set up claims adverse to the purchaser simply with a view to harass him. There must be finality somewhere and if the Magistrate had realised his duty and done it properly in following the Civil Court precept and maintained the possess on of the property, so tar as he was concerned, the matter would have come to an end.
15. I, therefore, have no hesitation in setting aside the order of the Magistrate and I enjoin the Magistrate will maintain the possession of the first party and prevent aggressions by others and will not take notice of the fact that they were not parties either to the Civil Court decree or to the previous 145 proceeding. If anybody is aggrieved by tie possession given by the Civil Court let him go in the proper Tribunal for the adjudication if his rights and recovery by the property. The Magistrate has ample power Under Sections 107 and 145 to maintain the possession of the first party.