Patna High Court
Ram Niranjan Missir And Ors. vs Kamdeo Missir And Ors. on 24 July, 1958
Equivalent citations: AIR1959PAT196, 1959CRILJ634, AIR 1959 PATNA 196, ILR 37 PAT 1227 1959 BLJR 78, 1959 BLJR 78
JUDGMENT S.C. Misra, J.
1. This application is directed against an order passed by the learned Sub-Divisional Magistrate of Sitamarhi in a proceeding under Section 1.45, Code of Criminal Procedure. The dispute between the parties relates to certain lands situate in village Janipur, police station Pupri, popularly known as Kariasi Chowr. The lands originally belonged to the Manpur Estate. The petitioners who were first party to the proceeding, claimed possession over the lands by virtue of a Manhunda settlement made with them respectively near about the year 1932 of which they continued to be in possession thereafter.
The second party stated that they were duly in possession by virtue of registered sale deeds executed in their' favour in 1952 by Choudhary Harinath Singh who, in his turn, came into posses sion of the lands by virtue of a settlement in his favour by the President of the Kayasth Pathshala Trust under the supervision of the Allahabad High Court. They stated further that the petitioners were anxious to have these lands and having failed in their attempt set up a false claim under the insti gation of certain unsocial elements. The parties led evidence in support of their respective cases and the learned Magistrate, on a consideration of the evidence, found the second party to be in pos session and, accordingly, passed orders in their favour.
2. The petitioners moved the learned Sessions Judge of Muzaffarpur for reference of the case to the High Court for setting aside the order passed by the learned Sub-divisional Magistrate, but their prayer was refused. Accordingly, the present petition has been preferred for setting aside the learned Magistrate's order.
3. Learned counsel for the petitioners has urged as his main point that the proceedings drawn up by the learned Magistrate referred specifically to plots Nos. 2744, 2749, 2750, 2751 and 2752 (twice over) in village Janipur which would measure about 20 bighas. The actual order passed by the learned Magistrate, however, covers as many as 15 plots more, being plots Nos. 2909, 2910, 2962, 2959, 2923, 2926, 2960, 2701/5063, 2735, 2737, 2738, 2743. 2747, 2748 and 2745. It is contended that the order having been passed to cover a much larger area than what was included in the proceeding, the entire order is bad in law and must be set aside.
Learned counsel for the opposite party, however, has contended in this connection that the entire order must be upheld as valid because, although there was some omission in the proceeding actually drawn up, in fact, there was no misapprenension in the minds of the parties as to what they were trying to have enquired into by the learned Magistrate. The police report, which gave rise in the first instance to the proceeding, was made on 8-7-1952, in which the plot numbers mentioned were 252, 2750, 2751, 2752, 2749, 2744 and a lot of others in Kariasi Chowr measuring 36 bighas. On foot of this report, a proceeding under Section 107, Code of Criminal Pro-
cedure, was started against both the parties on 15-7-1952.
That proceeding was however, dropped and on 7-1-1953, a proceeding under Section 144, Code of Criminal Procedure, was started. That was, however converted into a proceeding under Section 145 of the Code as the matter related to a land dispute between the parties. Preliminary order was passed on 24-2-1953, and the lands were attached. On 14-3-1953, a proceeding was drawn up which through oversight mentioned only the above five plots repeating 2752 twice over, which would make it six plots. Both the parties, however, knew the true nature of the dispute and accordingly in the written statement filed by them they referred to all the plots which were covered by the order.
The result, therefore, is that the police report referred to the entire area and although all the plots had not been mentioned therein all the lands were attached; the parties knew what was attached and the order was accordingly passed in Tespect of all the disputed plots. No prejudice therefore, can be shown to have been caused to the petitioners for the omission to mention all the plots specifically in the proceeding. The entire order must, therefore, be affirmed as valid and it cannot be interfered with.
4. Learned counsel for the petitioners referred to the case of Uttim Singh v. Jodhan Rai, ILR 3 Pat 288: (AIR 1924 Pat 589),. " that was a case in which, among other points, one question raised was that the proceedings were initiated in respect of 39 bighas and odd and the final order was passed with reference to 82 bighas. A Division Bench of this Court held that the Magistrate had no jurisdiction to pass such an order in respect of the land which was not referred to in the initiatory proceeding. That is an authority which in terms, would cover the present case. Learned counsel for both parties, however, have endeavoured to distinguish that case from their own point of view.
Learned counsel for the petitioners has contended, after having cited that decision, that this would be the minimum relief to which his clients should be held to be entitled, as the order could not be operative for more than the plot numbers mentioned in the proceeding and for anything more than the area covered by those plots. But as a matter of fact the case was decided on a different ground altogether, viz., the jurisdiction of the Magistrate to refer an enquiry under Section 145, Code of Criminal Procedure, to arbitrators and to accept their award as his decision, which was disapproved.
In my opinion, although that was one of the grounds for setting aside the order but with regard to the order of the Magistrate being made operative for a larger area than that included in the proceeding drawn up, it was held independent of the other conclusions that such an order must be confined to lands actually included in the proceeding. The next case relied upon by the learned counsel for the petitioners is Kirpal Singh v. Hari Choudhary, AIR 1939 Pat 565, wherein it has been held that where such an irregularity has been committed by the learned Magistrate passing the order, the entire order must be set aside.
It is, no doubt, true that the observation made in that judgment is that if in a proceeding under Section 145, a Magistrate deals with a larger area of land in his order than what is included in the proceedings, he would be deemed to have acted without jurisdiction and his order is liable to be set aside. But on examination of the facts of that case, it appears that there the order passed was in respect of the lands described by blocks and areas out of certain plots. No specific plots were mentioned. It is, no doubt, true that blocks were prepared by the pleader commissioner comprising certain plots, but there was an obvious irregularity.
For instance, item No. 1 was thus described "Twelve bighas out of Block 1, that is the eastern and southern portions of Block 1. In possession of Basuki Chaudhury under the Malik Hari Pd. Choudhary."
Therein the reference is to eastern and southern portions of block No. 1, but no mention is made of the plot numbers. That would evidently introduce an element of ambiguity in the order. The learned Judge observed thus:
"Evidently, at the time of passing the order, the learned Magistrate lost sight of the fact that the proceeding referred to the plot numbers and not to the block numbers and this has brought about the result which necessitates interference with the order passed by him"
In my opinion, therefore, the decision in Kirpal Singh s case (AIR L939 Pat 565) is thus distinguishable from the present case. The next case relied upon is Sukhari Nonia v. Ramkhelawan Thakur, AIR 1923 Pat 528.
That was a decision in which the order was passed in respect of 6 bighas of land settled by the Kornoul Factory, whereas the real dispute was only about 4 bighas. In the circumstances, it was held "it is impossible to be sure with regard to any of the really contested area whether that was included within the proceedings or not." In my opinion, the above sentence is the crux of the question. If from the order passed by the learned Magistrate it is possible to come to a conclusion that it can be specifically related to any contested area included within the proceedings, the order must be held to be good to that extent.
Where, however, as in that case, it is not practicable to be positive in regard to this matter, the entire order must be set aside. In the result, therefore, it must be held that the contention of the learned counsel for the petitioners that the entire order must be set aside, cannot be sustained. In the present case, the plot numbers are specifically mentioned in the proceedings and they are included in the order passed by the learned Magistrate. There is. no difficulty whatsoever in identifying these plots and, therefore, there is no reason to hold that the order should not be operative in respect of these plot numbers.
5. The contention of learned counsel for the opposite party that the entire order must be upheld as the parties were under no misapprehension as to what thev were disputing about, also, cannot be accepted. As a matter of tact, the proceedings drawn up give the parties a clear indication of what the Magistrate is required to decide in the enquiry. If any party is of the opinion that more lands should be included in the proceeding, it is for the party to have the proceteding amended. Learned counsel for the opposite party has, however, urged that it has been held now in a series of decisions of this court as well of other High Courts that a failure to draw up a formal preliminary order in accordance with the provisions of Section 145(1), is nothing more than a mere irregularity so as not to affect the validity of the subsequent proceedings where no prejudice is caused.
The same principle should apply even to the facts of the present case. He has referred to the case of Wazir Mahton v. Badri Mahton, AIR 1950 Pat 372. In that case, however, the question of a proceeding being drawn up in a certain manner indicating precisely the nature of the dispute between the parties was not mooted. That case, therefore, cannot be advanced as an authority in support of the present contention.
The distinction, in my opinion, between a mere failure to draw up a formal order not vitiating the proceeding and the proceeding actually drawn up is that whereas drawing up a formal preliminary order is concerned only with the jurisdiction of the court, and subsequent proceedings may be amply justified on the ground that one of the parties, or both the parties, refer to a dispute, and, therefore, the existence of a dispute can be reasonably inferred, the consideration arising in the matter of drawing up of a proceeding is entirely different. As I have said above, here begins the precise description of the properties really in dispute between the parties.
This is an important stage and the parties interested must take particular care to have all the properties about which they are disputing duly included therein. I am not prepared to hold that any such irregularity in drawing up a proceeding can with safety be ignored as a mere irregularity. The decision in the case of Durjan Singh v. State, AIR 1954 Raj 217, referred to on behalf of the opposite party can be distinguished on the ground that that case also relates to a consideration of the effect of an omission to pass a preliminary order under Section 145(1), like the above Patna case. In my opinion, therefore, the present order cannot be upheld in respect of the entire area and it must be confined to the area which was the subject-matter of a proceeding drawn up in the case.
6. Learned counsel for the petitioners has further contended that the order is unsustainable because a number of other persons were also interested in the plots covered by the order of the learned Magistrate. He cited, for instance, plot No. 2736 claimed by one Sonai Misra measuring 13 kathas, but he is not one of the petitioners. Plots Nos. 2929, 2928 and 2933 were claimed by one Devan Misra and not by the second party, and this fact was brought to the notice of the learned Magistrate! at an earlier stage of the proceeding but the learned Magistrate did not choose to make them parties.
In my opinion, this is hardly a ground for interfering with the order passed by the learned Magistrate because, according to the second party, who are opposite party to this Court, the alleged persons were not interested and their claim was fictitious. Without, however, determining the merits of this stand of the second party, it may be laid down that in a case where an order is passed to be operative against persons in a proceeding under Section 145 who are not mentioned as parties, they are obviously not bound by such an order. That, however, is no ground for setting aside the order even against those persons who are parties to the proceeding and who as such must be held to be bound by the order.
7. Learned counsel towards the end of his argument made a faint endeavour to show, in course of reply to the argument of learned counsel for the opposite party, that the plots included in the proceeding would not measure 20 bighas and they are not entire plots. In my opinion, this question of fact cannot be permitted to be raised in reply when it was never raised before the learned Sessions Judge, nor even in the grounds of the present petition. There is no substance in this argument and this, too, must be rejected as without any foundation.
8. In the result, the application succeeds to the extent that the order will be operative on in respect of plots Nos. 2744, 2749, 2750, 2751, 2752 and 2753 which, it is conceded, were the plot numbers mentioned in the proceeding, although 2752 was mentioned twice over. The rule is made absolute in terms mentioned above and discharged in regard to the above six plots, U.N. Sinha, J.
9. I agree.