Mithila Saran Singh v. Nihora Singh — 1969 DIGILAW 15 (PAT)

Judgment G.N.Prasad, J. 1. The petitioners were the first party in a proceeding under Sec.145 of the Code of Criminal Procedure with respect to several plots of land appertaining to Khata numbers 44, 121 and 137 and situated in village Makhdumpur, Police station Bihta, district Patna. They are aggrieved by the final order passed by the learned Magistrate declaring the second party in possession over the disputed lands. 2. It is common ground that there were two brothers Triloki and Sheo Lochan. Triloki had a son, Kuar Singh who died leaving behind his widow Askueri Kuer. Kuar Singh had a son, Sundar Singh who died leaving behind his widow Dularo Kuer, opposite party No. 6. In the other branch, Hathi Ram was son of Sheo Lochan. Mithila Saran Singh, petitioner No. 1, is the son of Hathi Ram and Rajeshwar Singh, petitioner No. 2, is the surviving son of Mithila Saran Singh who had another son, Mahanand Singh who is dead. The parties are at variance with respect to the family of Rainu Singh. According to the first party, Rainu Singh was full brother of Hathi Ram (father of petitioner No. 1). But according to the second party, Rainu Singh was not the second son of Sheo Lochan but the second son of Triloki. Both the parties, however, are agreed that Rainu Singh had a daughter, Piyari Kuer, whose husband Nihora Singh is opposite party No. 1 in this Court. Opposite party No. 5, Sheo Prasad Singh, is son of Nihora Singh, Opposite party No. 1. 3. It is also undisputed in this case that Nihora Singh, opposite party No. 1, and Dwarka Singh, opposite party No. 2, are full brothers. The case of the second party is that Kuar Singh had also left behind a daughter, named, Balo Kuer and this Balo Kuer was married to Dwarka Singh, opposite party No. 2. According to the case of the first party, however, Kuar Singh had left behind no such daughter. There is, however, no dispute that Upendra Singh and Bhupendra Singh, opposite party numbers 3 and 4 respectively, are sons of Dwarka Singh, Opposite party No. 2. 4. According to the case of the first party, however, Kuar Singh had left behind no such daughter. There is, however, no dispute that Upendra Singh and Bhupendra Singh, opposite party numbers 3 and 4 respectively, are sons of Dwarka Singh, Opposite party No. 2. 4. Briefly stated the case of the first party petitioners was that after the death of Sundar Singh, there was no male member to assist the two ladies, Askueri Kuer and Dularo Kuer (opposite Party No. 6) in management of the lands left behind by Sundar Singh. Accordingly Mithila Saran Singh, petitioner No. 1, began to manage their properties and was virtually in possession over the disputed lands. However, on the 7th December, 1961, Dularo Kuer, Opposite party No. 6, executed a deed of gift in respect of the entire disputed lands in favour of the two sons of Mithila Saran Singh, namely, Rajeshwar (Petitioner No. 1) and Mahanand (since deceased). Thus, the members of the first party were in actual possession over the entire disputed lands at the time when the present proceeding was drawn up under the orders of the court, dated the 31st March, 1962. 5. The case of the second party was that Sundar Singh had predeceased his father Kuar Singh, and having none to assist him in his old age to manage his properties, he kept his son-in-law, Dwarka Singh, opposite party no, 2, with himself and thus, it was Dwarka Singh who was in possession over the lands of Kuar Singh. Kuar Singh had also surrendered his properties in favour of Dwarka Singh. Dwarka Singh, used to maintain Askueri Kuer and Dularo Kuer out of the income of the lands of Kuar Singh over which he was in possession. Somehow or the other, Dularo Kuer, opposite party No. 6 was brought in collusion of the first party who took a deed of gift from her on the 7th December, 1961 and raised a dispute as to possession, ultimately giving rise to the present proceeding. 6. It is hardly necessary to add that the learned enquiring Magistrate has accepted the claim of possession over the disputed property put forward by the second party. 7. Mr. A.K. Roy, appearing on behalf of the petitioners, has put forward the contention that the decision of the learned Magistrate is without jurisdiction and, as such, it cannot be sustained. 6. It is hardly necessary to add that the learned enquiring Magistrate has accepted the claim of possession over the disputed property put forward by the second party. 7. Mr. A.K. Roy, appearing on behalf of the petitioners, has put forward the contention that the decision of the learned Magistrate is without jurisdiction and, as such, it cannot be sustained. Learned counsel pointed out that by an order, passed on the 30th December, 1963, the enquiring Magistrate had made a reference to the civil Court under Sec.146 (1) of the Code of Criminal Procedure, but the civil Court by its order, dated the 22nd February, 1964, returned the records of the case to the Magistrate as the order of reference was not in accordance with law. After that, the Magistrate instead of rectifying the defect in the order of reference to the civil Court took upon himself the responsibility of deciding the proceeding. This, according to Mr. Roy, the Magistrate was not empowered to do. The argument is that on receipt of the records from the civil Court in February, 1964, the only course open to the learned Magistrate was to make a proper reference in the light of the observations contained in the order of the civil Court, dated the 22nd February, 1964. To illustrate his point, Mr. Roy has drawn my attention to a Bench decision of this Court in State of Bihar V/s. Hari Mishra, AIR 1965 Patna 411 to which I was a party. 8. To appreciate the contention of Mr. Roy, it is necessary to keep in mind the precise circumstances under which the records were returned by the Civil Court under its order, dated the 22nd February, 1964. The order of the enquiring Magistrate, dated the 30th December, 1963 was in the following terms: "I have gone through the record. The possession of none has so far been found and it requires further enquiry which cannot be decided under Sec.145 Cr. P. C. As such the proceedings are converted to one under Sec.146 Cr. P. C. and a reference is made to competent civil court for deciding the claim according to law. Lands are attached under Sec.146. Send the record to Registrar, Civil Court for needful. P. C. As such the proceedings are converted to one under Sec.146 Cr. P. C. and a reference is made to competent civil court for deciding the claim according to law. Lands are attached under Sec.146. Send the record to Registrar, Civil Court for needful. Parties to appear before Registrar, Civil Court on 1-2-64." In the very next order, which is to be found in the order-sheet, the learned Mun-sif, 3rd Court, Patna, pointed out that the reference to the Civil Court had not been validly made inasmuch as the Magistrate had not drawn up a statement of the facts of the case and the order, dated the 30th December, 1963 also did not show what evidence, oral or documentary, on the point of possession had been produced before the Magistrate. The learned Munsif emphasised that it was the duty of the Magistrate to draw up a statement of the facts of the cases of the parties and to deal with the evidence adduced by them in support of their respective cases so that the Civil Court might be in a position to apply its mind to the reference in question. The learned Munsif concluded his order, dated the 22nd February, 1964, by observing as follows: ".... If the Act provides that a certain thing has to be done in a certain way, that thing must be done in that very way or it should not be done at all. As the law stands, a reference without drawing up statement of the facts of the case is incomplete and improper. Therefore I have no option but to send back the record of the case to the learned Magistrate concerned who would proceed in accordance with law." The point raised by Mr. Roy will have to be decided in the light of the effect of the order of the learned Munsif, dated the 22nd February, 1964. Mr. Roy contends that the direction of the learned Munsif was that the Magistrate should act in accordance with law by complying with the requirements of Sub-section (1) of Sec.146 of the Code of Criminal Procedure relating to making a reference of the matter to the Civil Court. In support of his contention, Mr. Mr. Roy contends that the direction of the learned Munsif was that the Magistrate should act in accordance with law by complying with the requirements of Sub-section (1) of Sec.146 of the Code of Criminal Procedure relating to making a reference of the matter to the Civil Court. In support of his contention, Mr. Roy urged that the earlier order of the learned Magistrate, dated the 30th December, 1963 was not incompetent but merely improper and all that he was called upon to do by the order of the Civil Court was to remove the defect in the referring order so that the reference might become a proper reference in the eye of law. The fallacy in the contention of Mr. Roy is that the Civil Court had no jurisdiction to make any direction to the learned Magistrate. The civil Court was not sitting in appeal over the Magistrate dealing with the proceeding. 9. As pointed out in the Bench decision relied upon by Mr. Roy, "the Civil Court, not being a court of appeal of the Magistrates court, is not competent and has no jurisdiction to decide the propriety of any reference made by a magistrate under Sec.146 (1) of the Code of Criminal Procedure. The question whether such a reference by the Magistrate is proper or improper has to be decided by a higher Court, having necessary jurisdiction. The learned Munsif. therefore, adopted the right course to have brought this matter to the notice of the court although there is no provision in the Code of Criminal Procedure for making of any reference by a Munsif.... Although the civil Court is not competent to decide about the competence or otherwise of any reference by a judicial pronouncement, it can nevertheless bring to the notice of the Magistrate its opinion about the incompetent nature of the reference by means of a letter and the Magistrate may recall such a reference, if he accepts the Munsifs opinion. Such a course will save time and also the parties from unnecessary harassment in coming to the High Court." It will thus appear that the civil Court in the present case purported to follow the second course indicated in the Bench decision aforesaid. Such a course will save time and also the parties from unnecessary harassment in coming to the High Court." It will thus appear that the civil Court in the present case purported to follow the second course indicated in the Bench decision aforesaid. In that very decision, it has been pointed out that the reference of the kind made in the present case was not merely irregular but incompetent and that if in such circumstances the civil Court would have proceeded to give its decision on the question of possession then that would have been without jurisdiction. In other words, in the present case, there was no valid reference to the civil Court at all so as to have clothed it with jurisdiction to give its finding on the question of possession. In the absence of jurisdiction having been conferred upon the civil Court in accordance with law, the learned Munsif could neither record his finding nor make any direction to the learned Magistrate as to what course he should adopt after the return of the records from the civil Court. To put it differently, the purported reference to the civil Court made under the order of the 30th December, 1963 was abortive and it wholly failed to deprive the learned Magistrate of his normal jurisdiction to decide the proceeding in accordance with Sec.145 (4), Criminal Procedure Code and to transfer that jurisdiction to the civil Court under Sec.146 (1) of the Code. It is also well known that the primary jurisdiction in such matters is that of the Magistrate. That is why, even after the civil Court returns its finding to the Magistrate, it is the duty of the Magistrate to pass the final order in the proceeding in the light of the decision of the civil Court. Therefore, since the order of the 30th December, 1963 could not validly confer any jurisdiction on the civil Court to record its decision, the conclusion must inevitably be that the jurisdiction over the proceeding continued in the Magistrate as before. Therefore, after the receipt of the record from the civil court, it was for the Magistrate to decide as to what course he ought to adopt, whether to make a proper reference to the civil Court under Sec.146 (1) of the Code or to proceed under Sec.145 (4). 10. Therefore, after the receipt of the record from the civil court, it was for the Magistrate to decide as to what course he ought to adopt, whether to make a proper reference to the civil Court under Sec.146 (1) of the Code or to proceed under Sec.145 (4). 10. I am unable to accept the contention that by reason of the order of the Civil Court, the Magistrate was left with no option but to make a valid reference under Sec.146 (1) of the Code. I am, therefore, clearly of the opinion that the Bench decision of this Court, relied upon by Mr. Roy, is really of no avail to him, and in any event, the final order made by the learned Magistrate cannot be struck down as without jurisdiction on the ground urged by Mr. Roy. 11. The next contention of Mr. Roy is that the decision of the learned Magistrate is vitiated on account of failure to consider two of the documents filed before him on behalf of the petitioners, namely, (i) original summons or Mosanna in the name of Mithila Saran Singh in case No. 480 of 1938 and (ii) certified copy of deposition of Moti Singh, dated the 18th August, 1948 in title suit No. 9/3 of 1947-48. As regards item No. (i), the contention of Mr. Roy is not correct since the learned Magistrate had made reference to it at page 9 of the certified copy of his judgment, Mr. Roy has rightly contended that the deposition of Moti Singh in title suit No. 9/3 of 1947-48 has not been considered by the learned Magistrate. On looking into the deposition, however, I do not find anything there which could be relevant for deciding the question of possession in the present proceeding. The non-consideration of this document, therefore, is of no consequence at all. This branch of Mr. Roys argument accordingly fails. 12. Mr. Roy has then made a grievance of the treatment of the affidavits of the witnesses of the petitioners made by the learned Magistrate. Mr. Roy contended that the first party had filed eight such affidavits and not seven as shown in the impugned order. The affidavit said to have been left out of consideration is said to be of one Kapildeo Singh and that is said to be relevant with respect to two of the disputed plots, 241 and 643. Mr. Mr. Roy contended that the first party had filed eight such affidavits and not seven as shown in the impugned order. The affidavit said to have been left out of consideration is said to be of one Kapildeo Singh and that is said to be relevant with respect to two of the disputed plots, 241 and 643. Mr. Ram Saroop Sinha appearing for the other side stated that there was no such affidavit on record. Thereupon a search for the alleged affidavit of Kapildeo Singh was made by Mr. Roy, but it was nowhere to be found on the records of the case. Evidently, no such affidavit was before the learned Magistrate requiring his consideration. Mr. Roy then contended that the learned Magistrate could have no justification for not relying upon the affidavits of four of the witnesses of the first party, namely, Brahmadeo Singh, Baikunth Singh, Mithila Singh and Havildar Singh, when he had himself found that they held lands on the boundaries of the disputed plots 22, 1046 and 1054. This argument does not appeal to me at all. The learned Magistrate was not bound to rely upon these witnesses merely because they appeared to be competent to speak about the possession of the petitioners over the three disputed plots. The learned Magistrate had to decide whether they were truthful witnesses and not merely competent witnesses. The reason is that a competent witness is not necessarily a truthful witness. No error of law can be said to have arisen merely because the learned Magistrate did not feel impressed with the evidence given on affidavits on behalf of the first party. 13. Lastly, Mr. Roy pointed out that Dwarka Singh did not swear any affidavit in this case although he was vitally interested in the dispute. But, it is to be remembered that Dwarka Singh is opposite party No. 2 in this Court and his brother, Nihora Singh (opposite party No. 1) did swear an affidavit in support of the case of the second party in the court below. It was not essential for each and every member of the second party to swear an affidavit in the proceeding. Nothing material, therefore, turns upon the circumstance that Dwarka Singh did not swear any affidavit in the proceeding. 14. In my opinion, no ground has been made out for interfering with the decision of the learned Magistrate. It was not essential for each and every member of the second party to swear an affidavit in the proceeding. Nothing material, therefore, turns upon the circumstance that Dwarka Singh did not swear any affidavit in the proceeding. 14. In my opinion, no ground has been made out for interfering with the decision of the learned Magistrate. The application fails and is, accordingly, dismissed.