Babban VD. v. Fulena Gir — 1970 DIGILAW 141 (PAT)

JUDGMENT This application in revision is directed against a final order passed in a proceeding under Section 145 of the Code of Criminal Procedure by Mr. Ram Ashish Trivedi, Magistrate, First Class, Gopalganj on the 22nd of July, 1969. The dispute in the proceeding related to 3 Bigbas 6 Kathas 4 dhurs of land appertaining to Khata No. 153 bearing Plot Nos. 2222 and others, situate in village Gamabari, police station Bai kunthpur, district Saran. It was the common case of both the parties that the land in dispute originally belonged to one Bhado Giri and he was the recorded tenant. The present petitioners figured as second party and the opposite party figured as first party in the proceeding. 2. The case of the first party was that on 19.5.22 Sukhari Giri, father of party no. 1 purchased some land from Bhado Giri out of the disputed land. the plots which were purchased by him appertained to Plot Nos. 2221, 2222, 2224 and 2225 along with other plots which are not the subject matter of the present proceeding. The total area so coveted was 1 bigha 3 kathas 3 dhurs. The further case of the first party was that in the year 1926 there was an erosion in the river Gandak and the disputed land went under the river. Bhado Giri, the recorded tenant died in 1925 leaving his widow named Dhanwato Kuer and two children. Dhanwato Kuer along with her two children went to Nepal and died there. In 1934-35 the lands again came out of the liver and was taken possession of by the ex-landlord who was the Hathua Raj. The ex-landlord made settlement of the entire land with the first party treating the land as abandoned land of the tenant. The rent wall also fixed. It was also said that the ex-land• lord when filed his return then be also showed these lands as having been settled with the first party. It was also their further case that the and in dispute had also been subject of mortgage and ex-landlord had filed rent snits also. 3. The rent wall also fixed. It was also said that the ex-land• lord when filed his return then be also showed these lands as having been settled with the first party. It was also their further case that the and in dispute had also been subject of mortgage and ex-landlord had filed rent snits also. 3. The case of the second party, that is, the present petitioners, on the other hand, was to the effect that Bhado Giri, the recorded tenant died in 1925 leaving his widow Dhanwato Kuer and two children, but after the death of Bhado Giri his widow came in possession of the land in dispute. There was a denial of this fact that the land was abandoned by the heirs of the recorded tenant and that they had gone to Nepal. On 9.2.1952 Dhanwato Kuer executed a registered sale deed of the entire disputed land in favour of one Sitaram Giri and from him the second party purchased through a registered sale deed dated 15.11.1960. Some mortgages were also redeemed by the second party. The name of the second party was also mutated and the lent is being paid by them. It was also said that there were criminal cases and in those cases the documents propounded by the first party were held to be created documents. 4. The learned Magistrate, on a consideration of the affidavits and the document declared the first party to be entitled to possession. The second party of the proceeding. therefore, being aggrieved and dissatisfied with this order have filed this present revision. 5. At the time of the hearing of this revision substantially four points were urged on behalf of the petitioners. The first submission by the learned counsel for the petitioner was that a perusal of the order of the learned Magistrate shows that he directed himself to the question of title rather than to the question of possession so much so that towards the concluding portion of his order he declared the first party to be entitled to possession. On a perusal of the entire order of the learned Magistrate. I do not think that the learned Magistrate only directed himself to the question of title and not to the question of possession. On a perusal of the entire order of the learned Magistrate. I do not think that the learned Magistrate only directed himself to the question of title and not to the question of possession. I think that there was nothing wrong in the learned Magistrate using the words “entitled to possession” because a perusal of Sub-section (6) of Section 145 Cr. P.C. itself shows that the learned Magistrate finding the party in possession shall issue an order declaring such party entitled to possession thereof until evicted therefrom in due course of law. The order has, therefore, been passed by the learned Magistrate in conformity with the provisions of the aforesaid section. 6. The second contention which has been raised is to the effect that the whole proceeding stands vitiated on account of the non-compliance with the provisions of Section 145 Cr. P.C. It may be mentioned here that initially there was a proceeding under Section 144 Cr. P.C. which was drawn up on 11.6.1968. This proceeding was converted into a proceeding under Section 145 Cr. P.C. on 8.8.1968. The learned Subdivisional Magistrate on the aforesaid date passed an order to the effect as follows : “Both the parties filed hazari. Heard the lawyers on behalf of both the parties and perused the documents filed on their behalves. Both the parties are armed with documents and rent receipts. I am satisfied that there is bona fide land dispute between the parties and it is essential to determine the fact of possession through evidence. The proceeding in question is, therefore, converted into a proceeding under Section 145 Cr. P.C. and the parties are directed to file written statement and affidavit etc. To 19.9.68. for filing written statement by the parties.” The main submission which has been made in this regard is to the effect that a proceeding under Section 145 Cr. P.C. can be drawn up only when the Magistrate is satisfied that a dispute likely to cause a breach of the peace exists and that in the order quoted above there was absolutely no mention of any apprehension of any such breach of the peace, It has, therefore, been urged that this order was not in compliance with the provisions of Sub-section (1) of Section 145 Cr. P.C. and that it goes to the very root of the jurisdiction and as such the whole proceeding was bad. 7. P.C. and that it goes to the very root of the jurisdiction and as such the whole proceeding was bad. 7. Now to see how far it can be said that there was no material before the learned Subdivisional Magistrate to come to the conclusion that there was an apprehension of breach of the peace, the events antecedent to the passing of the order have to be taken into consideration. As already stated above initially there was a proceeding under Section 144 Cr. P.C. and a perusal of the order dated 11.6.1968, shows that there was a report by the police praying for action under Section 144 Cr. P.C, against both the parties. The learned Subdivisional Magistrate in his order dated 11.6.1968 after a perusal of the aforesaid police report stated in very clear words that be was satisfied from the police report that there was an apprehension of breach of the peace between the parties and, therefore, he drew up a proceeding under Section 144 Cr. P.C. 8. Now the order by which the proceeding was converted into one under Section 145 Cr. P.C. is dated 8.8.1968, that is to say, before the expiry of the statutory period of two months. The proceeding under Section 144 Cr. P.C., therefore, was alive and in existence at the time when this proceeding was converted into one under Section 145 Cr. P.C. True, it is, that there is no mention in the order dated 8.8.1968, about the breach of the peace, bat when examined in this background, it is obvious that there were materials before the learned Subdivisional Magistrate for being satisfied that there was an apprehension of bleach of the peace and this order has to be read along with the initial order referred above. It may also be mentioned here that before the conversion of the proceeding into one under Section 145 Cr. P.C. a petition on behalf of the second party, that is, the present petitioners had been filed making a request to the Subdivisional Magistrate to direct the Officer-in-charge Baikunthpur Police station to harvest the sweet-potatoes on the land and also keep the sale proceeds of the same in safe deposit. Directions were also accordingly issued. This also clearly shows the state of tension that was prevailing and clearly enough to show that there was an apprehension of breach of the peace. Directions were also accordingly issued. This also clearly shows the state of tension that was prevailing and clearly enough to show that there was an apprehension of breach of the peace. Now the question arises as to what would be the effect of an omission in the order to state about the apprehension of breach of the peace. The learned counsel for the petitioner in this connection has relied on an unreported decision in the case of (I) Sukhdeo Singh and others V. Prabhawati Devi and another (Criminal Revision No. 623 of 1967) decided on 14.11.1968 and also another unreported decision of this Court in the case of (2) Newa Lal Sharma V. Bikku Sharma and two others (Criminal Revision No. 78 of 1969) decided on 12-8-1969. The aforesaid decision in Criminal Revision No. 623 of 1967 was considered by a Division Bench of this Court of which I was also a member in the case of Jiut Dasadh and three others versus Asharaf Hussain and others, reported in 1970 B.LJ.R., page 776 and in view of the Division Bench decision and considering the surrounding facts of this case, as mentioned above, I am of opinion, that when there were materials before the learned Subdivisional Magistrate, the mere omission to mention about the existence or apprehension of breach of the peace in the order for drawing up a proceeding under Section 145 Cr. P.C. would not vitiate the proceeding. Further it may also be pointed out that it is not a case where the petitioner have come immediately after that order was passed, but after the conclusion of the inquiry under Section 145 Cr. P.C. The petitioners cannot be allowed now to avail of this kind of plea when they allowed the proceeding to go on and then the order being unfavourable have taken recourse of taking objection on this ground also. In such cases, another thing which is very important and which has to be seen is whether any prejudice was caused, but I do not see in this case also that any prejudice whatsoever was caused by the omission about the apprehension of breach of the peace. Where is no merit in this objection and, therefore, it fails. 9. In such cases, another thing which is very important and which has to be seen is whether any prejudice was caused, but I do not see in this case also that any prejudice whatsoever was caused by the omission about the apprehension of breach of the peace. Where is no merit in this objection and, therefore, it fails. 9. The third objection which has been taken is to the effect that a large number of documents, as many as fourteen had been filed on behalf of the second party, but some of these documents have not been considered at all. I may now refer in this connection to page four of the order of the learned Magistrate where at one place he has given a list of the documents which had been filed on behalf of the second party. The objection was to the effect that some of these documents mentioned in item Nos. 4, 5, 6, 7, 8 to 14 have not been considered. Item No.3 of the list is the certified copy of Zerpeshgi deed executed by Bhado Giri and that has been considered. Item No. 4 of page 1 is with regard to the mutation and that document has also been considered in a general manner when dealing with the question of mutation. Item No. 5 is an unregistered sale-deed and since it is an unregistered document, it seems that it has not been considered on this account. On a perusal of the entire order of the learned Magistrate, I think that all the necessary and relevant documents have been considered of both the parties and their seems to be no substance in this contention also. 10. The further objection which has been made is to the effect that learned Magistrate did not consider the affidavit. A perusal of the relevant paragraphs of the order shows that the learned Magistrate has enumerated the evidence of the persons who filed affidavits on behalf of the second party. He has also given his reasonings in Paragraph 17 of his order for not accepting the affidavits on behalf of the second party and one of the reasons given by him is that the affidavits filed on behalf of the second party go against the documents of 1922 and as such their statements become suspicious. He has also given his reasonings in Paragraph 17 of his order for not accepting the affidavits on behalf of the second party and one of the reasons given by him is that the affidavits filed on behalf of the second party go against the documents of 1922 and as such their statements become suspicious. A perusal of the relevant paragraphs of his order shows that the learned Magistrate applied his judicial mind and he has taken into consideration all the affidavits. It is not proper for a Court in revision to reappraise the reasons for accepting or rejecting the affidavits, but what has to be seen is whether the learned Magistrate did apply his judicial mind and consider them or not. I find that the affidavits have been considered and, therefore, there is no merit in this contention also. 11. In the result, the application fails and it is dismissed. Application dismissed.