Krishna Chandra v. Benarasi — 1972 DIGILAW 20 (PAT)

Judgment 1. This application by the sole petitioner under Sections 435 and 439 of the Code of Criminal Procedure (hereinafter referred to as the Code) is directed against the final order dated the 16th of January 1969 passed by the Magistrate in proceeding under Sec.145 of the Code. In the said proceeding the petitioner is the first party whereas the opposite party is the member of the second party. The dispute relates to the land measuring 2 Bighas 19 dhurs in Plot No. 924 situated in village Mirzapur in the Town Police Station of Monghyr. 2. In order to appreciate the points involved in this application, it will be necessary to state briefly the facts. The aforesaid plot originally belonged to one Jalim Kandar. On the 29th May, 1965 the same was sold to the opposite party for Rs. 5000.00 by a registered sale deed. The petitioner owns and possesses the land on three sides of the said disputed plot. On the 27th August 1965 the petitioner deposited the consideration money that is, Rs. 5000.00 plus 10 per cent of the said amount as required under Sec.16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962) (hereinafter referred to as the Act) along with an application before the Collector of Monghyr. That gave rise to a case No. 63 of 1965. On 31st August 1965 the Additional Collector ordered for giving effect to delivery of possession to the petitioner under Sec.16 (3) (ii) of the Act. By the said order the Anchal Adhikari was directed to effect the delivery of possession and on the 16th October, 1965 the Anchal Adhikari directed the Circle Inspector Shri D. P. Sinha to do so. On the 23rd October 1965 the Circle Inspector effected the delivery of possession by beat of drum and also submitted his report. In the meantime the case of the petitioner under the said Act was finally decided on the 27th January, 1966 by the Additional Collector and the opposite party was directed to execute the formal sale deed under the Act. Aggrieved by the said order, the opposite party preferred an appeal before the Commissioner of Bhagalpur. The Commissioner, however, made a reference to this court which was registered as Civil Reference No. 1 of 1967. Aggrieved by the said order, the opposite party preferred an appeal before the Commissioner of Bhagalpur. The Commissioner, however, made a reference to this court which was registered as Civil Reference No. 1 of 1967. In the said reference the question was with regard to the constitutionality of the Act. The matter was referred to a Full Bench of this Court in the case of Banarsi Yadav V/s. Krishna Chandra Das, 1971 Pat LJR 518 : ( AIR 1972 Pat 49 ). In that case the reference was held to be not competent. However it was held that the Act was intra vires. Now the matter is pending before the Commissioner to be decided on merit as stated by the learned Counsel appearing on behalf of the opposite party. On the 1st November, 1965, as alleged by the petitioner the opposite party started interfering with the possession of the petitioner. On the 9th November, 1965 the police reported that a proceeding under Sec.144 of the Code should be initiated. Accordingly a proceeding under the said section was drawn up on the 16th November, 1965. On the 13th January. 1966 the same was converted into one under Sec.145 of the Code. On behalf of both the parties written statements, as well as various documents were filed. On behalf of the first party six affidavits were filed: whereas on behalf of the second party seven affidavits were filed. The learned Magistrate after hearing the parties and persuing the records, passed the impugned order. 3. Mr. Ram Nandan Singh, learned Counsel appearing on behalf of the petitioner has assailed the impugned order and raised chiefly the following two points for consideration by this Court:- (i) The learned Magistrate has erred in holding that the delivery of possession effected to the petitioner under the Act had not same force as the delivery of possession effected by an order of competent civil court; and (ii) the petition dated the 1st November. 1968 which was filed on the 7th November 1968 by the petitioner praying for Dasti Summons to be issued against the Circle Inspector and calling for the records from the office of the Additional Collector should not have been rejected by the Magistrate. I will take up for consideration point no. (i) first. 4 Mr. 1968 which was filed on the 7th November 1968 by the petitioner praying for Dasti Summons to be issued against the Circle Inspector and calling for the records from the office of the Additional Collector should not have been rejected by the Magistrate. I will take up for consideration point no. (i) first. 4 Mr. Singh has drawn my attention to sub-clause (ii) of clause (3) of Sec.16 of the Act which reads as :- "On such deposit being made the cosharer or the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under clause (i) is pending for decision. Provided that where the application is rejected, the co-sharer or the raiyat, as the case may be shall be evicted from the land and possession thereof shall be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten per cent of the purchase money out of the deposit made under clause (i)". He also referred to Sec.30 of the Act which provides for appeal against the final order. Thereafter he drew my attention to Sec. 43 which bars the jurisdiction of the Civil Court. In my opinion reference to these sections clearly indicates that delivery of possession effected under the said Act. deserves the same weight as a delivery effected on the order of a competent Civil Court. In that view of the matter, the learned Magistrate has erred in holding that the so called delivery of possession is not a delivery of possession ordered by a Civil Court. It is delivery of possession ordered by a Revenue Court. In my opinion he ought to have given effect to (sic) same consideration as he would have given with regard to the delivery of possession effected as per orders by a competent Civil Court. What weight has to be given effect to a recent delivery of possession has been pointed out by this Court in the case of Sheonarayan Singh V/s. Bharath Singh ( AIR 1954 Pat 182 ). where Narayan and Ahmad JJ. held that the view that once there had been a delivery of possession by the Civil Court the Magistrate has no jurisdiction to take action under Sec.145 of the Code is no more sustainable. where Narayan and Ahmad JJ. held that the view that once there had been a delivery of possession by the Civil Court the Magistrate has no jurisdiction to take action under Sec.145 of the Code is no more sustainable. In spite of a recent delivery of possession, the jurisdiction of the Magistrate to interfere under Sec.145 of the Code is not ousted but the Magistrate has to give due weight to the recent delivery of possession while disposing of the proceeding under Sec.145 of the Code. If the judgment-debtors contend that the peons report is not correct and that there was no dakhaldehani on the spot, then certainly that is a question which has to be investigated and it is within the province of the Magistrate to investigate this question in the proceeding under Sec.145 of the Code. It is another thing that after the delivery of possession is proved the Magistrate has to respect the delivery of possession but so long as the delivery of possession is not proved it is absolutely within the competence of the Magistrate to draw up a proceeding under Sec.145 of the Code in the event of an apprehension of a breach of peace, and to investigate whether a dakhaldehani was actually effected on the spot or not. A fraudulent service of process is not an unknown thing in this part of the country and when the judgment debtors were contending that actually there had been no delivery of possession this question had to be investigated. It is true that in the instant case the opposite party had challenged the correctness of the delivery of possession. Therefore the Magistrate had right to investigate into the matter but certainly he has erred in expressing his view that the delivery of possession effected on the order of the Revenue Court had not the same weight as the one effected as per order of a Civil Court. In that view of the matter, the contention advanced on behalf of the petitioner on this point has to be accepted. 5. Mr. Ram Nandan Singh learned Counsel for the petitioner in support of his contention under point No. (ii) drew my attention to order dated the 7th November 1968. In that view of the matter, the contention advanced on behalf of the petitioner on this point has to be accepted. 5. Mr. Ram Nandan Singh learned Counsel for the petitioner in support of his contention under point No. (ii) drew my attention to order dated the 7th November 1968. which mentioned regarding the petition of the petitioner dated the 1st November, 1968 for issuance of Dasti Summons against the Circle Inspector and also for calling for the records from the Additional Collectors Office which could not be considered on that date. However, his application was considered on 26th November 1968 when the Magistrate ordered that there was no necessity for examining the Circle Inspector or the drummer. He further observed that the disposal of the case was intentionally delayed by both the parties. Therefore he ordered the case to be heard on the 9th December, 1968. 6. It appears that the record from the Additional Collector was called for but on the 9th December, 1968 an information from the Additional Collector was received that the record called for, was sent to the Commissioner of Bhagalpur in the appeal which was pending before him on the 7th May, 1966. Therefore, the Magistrate passed an order that calling for the record was dispensed with. The hearing of the proceeding under Sec.145 of the Code began before the learned Magistrate on the 13th December, 1968. 7. Mr. Singh submitted that a great prejudice was caused to the petitioner due to the refusal by the Magistrate to issue Dasti Summons against the said Circle Inspector, who had effected the delivery of possession. His evidence would have been conclusive on the point. He drew my attention to the observation of the learned Magistrate who held in the order that the Circle Inspector had not sworn any affidavit and the original report of the said Circle Inspector has not also been filed by the petitioner. He referred to sub-section (9) of Sec.145 of the Code which reads as :- "The Magistrate may if he thinks fit, at any stage of the proceedings under this section on the application of either party issue a summons to any witness directing him to attend or to produce any document or thing." In order to find support to his contention Mr. Singh relied on a Bench decision of this Court in the case of Sheo Kumar Dubey V/s. Tribhuwan Rai ( AIR 1965 Pat 25 ) where Ramratna Singh, J. who delivered the judgment for the Court observed at page 27- "In my opinion, the legislature deliberately allowed sub-section (9) to continue for meeting certain contingencies. It may not be possible for a party to obtain the affidavits of some persons either because they do not want to be identified with a party to the dispute or because they are public servants: at the same time such persons may be very competent to speak about possession. What remedy has a party in such a contingency? A party may of course request the Magistrate to ask such a person to swear an affidavit, but the Magistrate has no power to compel such a person to do so. The only other alternative therefore, for the party is to request the Magistrate to summon such a person and examine him as a witness: and this can be done only under sub-section (9). Of course, the Magistrate is not bound to comply with the request of the party; but he has to exercise his discretion judiciously and not arbitrarily. For instance the Magistrate should ordinarily accede to the request of a party to summon and examine a Government servant who may be quite competent to speak about the possession of a disputed land." 8. On the other hand, Mr. Amla Kant Choudhary learned Counsel appearing on behalf of the opposite party contended that the above observation of their Lordships do not assist the contention advanced on behalf of the petitioner on the facts and circumstances of the instant case. He urged that in that case the party had come to this court only after the preliminary order when the refusal to summon the Government servant was made. In the present case they have come after the final order. 9. In my opinion, on this ground the impugned order cannot be supported. On the facts of the case the importance of the evidence of the Circle Inspector cannot be minimised. In my view his evidence would have been of much assistance to the Magistrate to come to the conclusion whether actually delivery of possession was effected or not. 9. In my opinion, on this ground the impugned order cannot be supported. On the facts of the case the importance of the evidence of the Circle Inspector cannot be minimised. In my view his evidence would have been of much assistance to the Magistrate to come to the conclusion whether actually delivery of possession was effected or not. No doubt a Magistrate has discretion into the matter, but as observed by their Lordships, it has to be exercised judiciously. In the present case, in my opinion he ought to have ordered for issuance of Dasti summons for the examination of the Circle Inspector. In the present case it may be noticed that the certified copy of the report of the Circle Inspector was filed by the petitioner. He could not have filed the original as reported, it was already sent to the Commissioner in the said appeal. In that view of the matter, the court could have only called for the original record from the Commissioner. 10. Mr. Choudhary, however, drew my attention to the latter portion of their Lordships observation in AIR 1965 Pat 25 (supra) at page 27 where it was held that on the other hand the Magistrate may refuse to summon such a witness at the request of a party who had been negligent or had been adopting delaying tactics. In the present case learned counsel submitted that the petitioner filed four affidavits on the 23rd of June. 1967. Evidence was closed on the 28th of August, 1968, and the 10th September, 1968 was fixed for final hearing. That date was, however, adjourned at the request of the first party namely the petitioner. Thereafter three adjournments had to be given because the Magistrate was busy elsewhere. On the 8th October, 1968 there was another adjournment at the request of the petitioner and the 16th October, 1968 was again fixed for final hearing by the Magistrate. On that date, that is on 16th October, 1968 the affidavit of Banarsi Dass, (the drummer) was filed on behalf of the petitioner. On the very next day that is on the 17th October, 1968. Banarsi Dass filed affidavit supporting the case of the opposite party, giving a go-by to the former affidavit which was filed on behalf of the petitioner. On the very next day that is on the 17th October, 1968. Banarsi Dass filed affidavit supporting the case of the opposite party, giving a go-by to the former affidavit which was filed on behalf of the petitioner. Thereafter on the 7th November, 1968 the said petition on behalf of the petitioner was filed for summoning the Circle Inspector and for calling for the original record. 11. On the facts mentioned above, it is submitted by the learned Counsel for the opposite party that the petitioner was negligent. Therefore, the Magistrate had rightly exercised his discretion in disallowing the application to summon the Circle Inspector. In my opinion, the contention of Mr. Choudhary on the facts of the present case cannot be accepted obviously because in the present case the drummer had given two contrary versions. In that view of the matter, the examination of the Circle Inspector had become very important. It was he who could have said which version was correct. In the ends of justice also, it was necessary for the Magistrate to exercise his discretion in favour of the petitioner by allowing his application for summoning the Circle Inspector to be examined under sub-section (9) of Sec.145 of the Code. On this ground also the impugned order cannot be sustained. 12. In the result the application is allowed and the order is set aside. The case is sent back to the Magistrate for issuance of Dasti Summons to the Circle Inspector Shri D. P. Sinha and for calling for the original record from the Commissioner of Bhagalpur. After Shri D. P. Sinha, Circle Inspector is examined on behalf of the petitioner, he will give opportunity to the opposite party to cross-examine him if any such prayer is made on behalf of the opposite party. Thereafter after hearing the parties, he will pass fresh order after consideration of the various documents and affidavits which are already on the record.