Patna High Court
Deo Krishna Singh And Ors. vs Harendra Prasad And Ors. on 10 November, 1980
Equivalent citations: 1981(29)BLJR340
JUDGMENT
S.K. Jha and M.P. Singh, JJ.
1. This is an appeal by the defendants first party against a judgment of affirmance.
2. It is not necessary to give a detailed recital of the facts involved in the suit. The short facts for the consideration of the questions raised at the bar and which are relevant pay be stated thus. There are two plots of land being Plots I and 252 measuring 19 kathas 16 dhurs and 1 bigha 7 kathas respectively under khata No. 105 in village Pipraulia within police station Phulparas, the total area of these two plots being 2 bighas 3 kathas 16 dhurs. They have been described in Schedule No. 1 of the plaint. Out of this total area, the subject-matter of the suit is only 10 kathas of land towards the South West corner of survey plot No 252. According to the plaintiffs-respondents case and the concurrent findings of the two Courts below, the location of survey plots 1 and 252 is such that to all intents and purposes, they constitute on compact block, survey plot No. 1 being adjacent north to survey plot No. 252. There is a proceeding initiated under Section 144 of the Code of Criminal Procedure (hereinafter referred to as the Code) which was later on converted into one under Section 145 of the Code During the pendency of the proceeding under Section 145 of the Code, the subject-matter of dispute was attached. On the 9th May, 1964, the Magistrate decided the proceeding under Section 145 of the Code against the plaintiffs respondents. Pursuant to that order, the property was released by the criminal Court in favour of the defendants-appellants. Soon thereafter, and admittedly within the period of limitation, the instant suit was instituted by the plaintiffs respondents, as already mentioned earlier, for a declaration of title and confirmation of possession, in the alternative, for recovery of possession with regard to only a portion of plot No. 252 aforesaid, namely, 10 kathas from South West corner of it.
3. Both the Courts below have concurrently found the plaintiffs respondents case to be true and have found they were all along in possession of the land in dispute. They have, accordingly, confirmed the possession of the plaintiffs respondents.
4. The only so called substantial question of Law raised by Mr. S.K. Sarkar, learned Counsel for the appelants, in this appeal, is that the decrees passed by the Courts below with regard to the confirmation of possession ought not to be sustained in law, because the proper relief which ought to have been granted to the plaintiffs-respondents was one for recovery of possession. The question is absolutely academic. The plaintiffs have made the prayer both for confirmation of possession as well as, in the alternative, for recovery of possession Both the Courts below have found that the plaintiffs-respondents were all along in possession and that the order passed by the learned Magistrate in the proceeding under Section 145 of the Code being wrong, their possession has been confirmed. Learned Counsel submitted before us relying on a Single Judge decision of the Labour Court in Sewa Das v. Ram Parkash A.I.R. 1947 Lab. 173., that it is not open to a Civil Court to go behind or to question the finding of the criminal Court with regard to the possession of the property of the successful party in that proceeding but it needs no persuasion to hold that if it be the ratio of that decision, it does not lay down the correct position in law. We are not prepared to accept the contention that the Civil Court is not competent to go behind the finding of possession of the criminal Court in a proceeding under Section 145 of the Code. It has been repeatedly laid down, and the law is so well settled, that it would merely bear repetition to say that the finding on the question of possession by the criminal Court in a proceeding under Section 145 of the Code is not at all binding on the Civil Court. The Civil Court on the basis of the evidence, aliunde, adduced in the civil action is at liberty to come to its own conclusion with regard to the possession of one party or the other even while the proceeding under Section 145 of the Code was going on and even in spite of an adverse order of the criminal Court against a particular party. If decisions be required in this regard, without multiplying the same we may merely refer to two Bench decisions of this Court in the cases of Mahabir Pandey v. Ram Narain Singh and Ors. , and Kanhaiya Lal Singh and Ors. v. Bilas Singh and Ors. 1967 B.L.J.R. 600. In the case of Mahabir Pandeys (supra), Ramaswami, C.J., speaking for Bench of the Court, negatived the contention of the learned Counsel for the appellants in that case in Paragraph No. 6 of the judgment in these terms;
6. Mr. Prasad next pointed out that the learned Additional District Judge in appeal had not applied his mind to the decision of the Magistrate in the 145 proceeding and had given no reasons for discarding his finding regarding possession of the appellant. This contention is equally without merit. In the first place, the decision of the Magistrate in the proceeding is not binding upon the Civil Court. It is entitled to come to a different finding altogether.
Secondly, the finding that the plaintiffs were in possession amounts to sufficient refutation of the findings of the learned Magistrate. Thirdly, the learned Additional Subordinate Judge had in fact considered the findings of the Magistrate in the 145 proceeding and reached the conclusion that they could not be supported either in law or in fact.
In the case of K. I Singh's case (supra), Misra, J., as he then was, speaking for the Bench laid down the legal position thus at page 605 of the reports;
I have already negatived that argument on the ground that the declaration of possession under Section 145, Code of Criminal Procedure, does not amount to actual possession, and actual possession must be deemed of the person who is found by the Civil Court to have been in actual possession,....
It will thus be seen that it is not only open to the Civil Court, but it is obligatory on the same to test the question of possession on the basis of the evidence in the civil action irrespective of the finding recorded by the criminal Court, and, once the Civil Court on such an appraisal of the evidence comes to the conclusion that a particular party was in actual possession, during the continuance and in spite of the adverse order passed in the proceeding under Section 145 of the Code, the party who is found to be in possession by the Civil Court shall by legal fiction be deemed to have been in possession throughout. It is only more so on the facts and circumstances of the instant case. It will be well to bear in mind that during the continuance of the proceeding under Section 145 of the Code, the property was custodia tegis and as a neccessary sequel to the final order passed by the Magistrate in that proceeding, the Court was bound to release the property to the party who had a favourable order from the criminal Court. Such an act of release by the Court on a wrong assumption of fact and law cannot act to the prejudice of the party who ultimately succeeds in the Civil Court and whose possession will be deemed to be the possession even during the continuance and in spite of the adverse order of the criminal Court in the proceeding under Section 145 of the Code. One distinction, however, worth bearing in mind, we want to lay down. There may be a case where a plaintiff himself asserts in the plaint that after the adverse order passed under Section 145 of the Code he was forcibly dispossessed by the defendant, in such a case on the own admission of the plaintiff, the defendant is a squatter having trespassed upon the land, being in illegal possession of the same. That, however, is not the position in the case of the instant nature. We thus find no substance in the main question raised by Mr. Sarkar, learned Counsel for the appellant. We, accordingly, reject it as meritless.
Mr. Sarkar also relied upon a decision of the Supreme Court in Chandu Naik and Ors. v. Sitaram B. Naik and Anr. . We do not think that this decision has been rightly pressed into service. It is not an authority for the proposition that the learned Counsel contends for on the contrary, some observations in this decision with regard to the fictional possession of a party go against Mr. Sarkar's contention.
5. It was then feebly suggested that in an event, the Courts below ought not to have recorded a finding with regard to the plaintiff's claim of right, title and interest over an area of 1 bigha 3 kathas 8 dhurs which comes to be the half of the total area of 2 bighas 6 kathas 16 dhurs comprised in plots 1 and 252. We are not called upon in this appeal to go into that question, for the point whether the finding will operate as res judicata or not does not fall to be decided by us in this case. On the facts and in the circumstances of the instant case, however, we are satisfied that such a finding was a pre-requisite to the two Courts below coming to a finding with regard to the right, title and interest of the plaintiffs respondents over a portion of the area out of the aforesaid 1 bigha 3 kathas 8 dhurs. Such a finding cannot be said to be unwarranted. There is no substance in this point either.
6. Learned Counsel next submitted that the Courts below had not put a proper construction upon the document of possession which is Ext. 4 in this case and had misconstrued some of the documents on the record. There is no merit in this point either. Having gone through the judgments of the two Courts below we are satisfied that the construction put by both the Courts on Ext. 4.in the context of the evidence on the record cannot be said to be unjustified. With regard to the wrong construction of certain pieces of documentary evidence which are not documents of title, it has been repeatedly held that it is not a question of law, muchless a substantial question of law warranting any interference in the exercise of our jurisdiction under Section 100 of the Code of Civil Procedure. It is not the contention of the learned Counsel that there is no evidence to sustain the finding.
7. We, accordingly, do not find any merit in this appeal and dismiss the same but in the circumstances of the case, there will be no order as to costs.