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1951 DIGILAW 138 (PAT)

Suratia v. Jailal Thakur

1951-12-03

S.K.DAS

body1951
Judgment Das, J. 1. This is a reference by the Sessions Judge of Muzaffarpur in which the learned Sessions Judge has recommended that the order of the learned Munsif Magistrate of Muzaffarpur in a proceeding under Sec.145, Code of Criminal Procedure, should be reversed in the following circumstances. 2. The dispute which gave rise to the proceeding under Sec.145, Code of Criminal Procedure, related to some lands comprised in two khatas, khata, No. 13 and khata No. 20, situate in village Bandhpura, police station Katra in the district of Muzaffarpur. Very shortly stated, the case of the first party before the learned Magistrate was that she, namely, Mt. Suratia, was the mother of Rambilas, who admittedly was the last male owner of the lands. Mt. Suratia said that after the death of her son, she came in possession of the lands, and cultivated them through her bataidars who were other members of the first party. The case of the second party before the learned Magistrate was that Rambilas left a widow, named Mt. Jagtia, and she sold the lands to some of the members of the second party by means of sale deeds executed on the 31st May 1949. Soon after, the local police submitted a report of an apprehension of a breach of the peace, and on that report, first a proceeding under Sec.144, Code of Criminal Procedure, and then a proceeding under Sec.145, Code of Criminal Procedure, were started. 3. The learned Munsif Magistrate, who dealt with the proceeding under Section 145 Cr. P. C., held, by his order dated the 9th February 1951, that the second party was in possession of the lands in dispute on the date of the order under Sec.145 Cr. P. C. 4. The main ground on which the learned Sessions Judge has recommended that, the order of the learned Magistrate should be set aside, is that the learned Magistrate failed to appreciate what was the real question to be decided in a proceeding under Sec.145, Code of Criminal Procedure. The learned Magistrate has found that Mt, Jagtia was the, widow of Rambilas. Then he said as follows: "As regards the oral evidence on the point of possession, both the parties have examined a number of witnesses to state about their respective possession over the disputed land. The learned Magistrate has found that Mt, Jagtia was the, widow of Rambilas. Then he said as follows: "As regards the oral evidence on the point of possession, both the parties have examined a number of witnesses to state about their respective possession over the disputed land. There is practically oath against oath and it would not be quite safe to come to a finding from the oral evidence alone. Each of them has, more or less, been shaken in their respective cross-examination. We have, therefore, to fall back upon the documents adduced by both the parties and I find that the kebalas (Ex. A series) are dated the 31st May 1949, i.e. over five months before the date of the order under Sec.145, Cr. P. C. These are in favour of the members of the second party and have been executed by a person who alone had authority to execute the same. They give a better right to the second party with respect to their possession and title to the disputed lands. There is nothing to show that these kebalas were not acted upon and the second party did not come in possession over the conveyed lands." 5. It would appear from the extract quoted above that the learned Magistrate failed to appreciate the real question which he had to decide in a proceeding under Sec.145, Code of Criminal Procedure. He based his order merely on a finding that "the second party had a better right to possession". This, the learned Magistrate was not authorised to do. Sub-section (4) of Sec.145, Code of Criminal Procedure makes the position quite clear. It states: "The Magistrate shall then, without reference to the merits of the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, etc., and if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject." 6. It is obvious that what the learned Magistrate has to decide is the fact of actual, physical possession. The question as to how far there can be an investigation of title in a proceeding under Sec.145, Code of Criminal Procedure, has been dealt with very carefully in a recent Full Bench decision of this Court in S.M. YAQUB V/s. T.N. BASU, 27 Pat 1027. The question as to how far there can be an investigation of title in a proceeding under Sec.145, Code of Criminal Procedure, has been dealt with very carefully in a recent Full Bench decision of this Court in S.M. YAQUB V/s. T.N. BASU, 27 Pat 1027. Sinha, J. as he then was formulated certain conclusions after an exhaustive consideration of the case law on the subject. I invite the attention of the learned Magistrate to those conclusions, particularly the first conclusion which read: "In a proceeding under Sec.145 of the Code of I Criminal Procedure the Magistrate is concerned only with the question of actual physical possession, and he must determine that question irrespective of the right to possession." I think that in this case the learned Magistrate has failed to appreciate what is the real question to be decided in a proceeding under Sec.145, Code of Criminal Procedure, and the order passed by him is vitiated by such failure. 7 The case must, therefore, go back on remand to the learned Magistrate for a fresh consideration in the light of the observations made above. The learned Sessions Judge has also pointed out that on the question as to whether Mt. Jagtia was the widow of Rambilas, the learned Magistrate failed to consider an important document, namely Ex. 1/j. The learned Magistrate must consider that document also when hearing the parties afresh. No fresh evidence would be allowed to be led by any of the parties. The matter should be re-heard in the light of the observations made above, particularly in the light of the Full Bench decision, to which I have drawn the attention of the learned Magistrate. I must add a word of caution. If the learned Magistrate is unable to satisfy himself as to which of the parties was in actual physical possession, or if he decides that none of the parties was in such possession, it is open to him to attach the subject of dispute; but the power to attach given under Sec.146 Criminal P. C. must not be exercised light heartedly. I invite the attention of the learned Magistrate to the decisions of this Court in RAM BAHAL SINGH V/s. RANG BAHADUR SINGH, 5 Pat L T 589 and NAND KISHORE SINGH V/s. BIGAN LOHAR, 21 Pat LT 306, Where the principles on which the power under Sec.148 Criminal P. C. is to be exercised, have been clearly laid down. 8. The result, therefore, is that I accept the reference, set aside the order of the learned Magistrate dated the 9th February 1951, and remand the case for a fresh hearing in the light of the observations made above.