Nagendra Narayan Pd. v. Lakshman Goswami — 1973 DIGILAW 4 (PAT)

Judgment Nagendra Prasad Singh. The petitioners were the members of the second party in a proceeding under section 145 of the Code of Criminal Procedure (hereinafter to be referred to as the Code'). The dispute related to several plots of land in three villages, namely, Lalsahaiya, Fakirachak and Hisuachak, in the district of Bhagalpur, details where of have been given in the order under revision. Learned Magistrate by the impugned order has come to the conclusion that opposite party no. I Lakshman Goswami (hereinafter to be referred to as' the opposite party') was in possession of the lands in dispute. 2 According to the members of the second party-petitioner, the lands in dispute belonged to them and they being the tenants in respect of those lands are in possession there of. So far as the opposite party is concerned, he is not disputing that the petitioners were the tenants of the hinds in question. That is an admitted position in the case. According to the opposite party, he was in possession of those lands as Bataidar of the petitioners, and, as such entitled to retain possession of those lands. 3. Originally, the application was filed before this Court challenging the impugned order on merit. However, during the pendency of the revision application a supplementary affidavit has been filed on behalf of the petitioners stating that in view of different orders passed in accordance with the provisions of the Bihar Consolidation of Holding and Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as 'the Act'), the lands in question have to be declared to be in possession of the petitioners and the order passed by the learned Magistrate declaring the opposite party to be in possession of the disputed lands has to be set aside. This point had been urged even before the learned Magistrate on behalf of the petitioners that in view of the fact that the Consolidation Officers have carved out a separate chak in favour of the petitioners consisting of the plots which are the subject matter of dispute in the proceeding and the petitioners have been put in possession of the said chak; the proceeding has to be decided in favour of the petitioners. Learned Magistrate, however, repelled the said argument by observing as follows: “Consolidation of Holdings are being done on the basis of raiyati interest and raiyati interest of the second party is not disputed.” By the aforesaid observation, perhaps, the learned Magistrate meant that the, proceeding under section 145 of the Code having been initiated as early as on 26.10.1967 has to be decided in respect of the position existed then and any subsequent order passed by the Consolidation Officer in purported exercise of the powers conferred on him by the Act, shall have no bearing on the present proceeding. 4. From time to time the above question has arisen in context with different enactments as to what will happen when during the pendency of a proceeding under section 145 of the Code, a proceeding is initiated and decided under those enactments relating to those very lands. One such question had arisen in context with a proceeding under section 48-E of the Bihar Tenancy Act, in the case of Jai Prakash Rai and another V. Hans Lal and others (1977 Bihar Bar Council journal 626). During the pendency of a proceeding under section 145 of the Code a Bataidari proceeding was initiated under section 48-E of the Bihar Tenancy Act. This Court faced with the situation as to what should be the proper procedure in such cases, after construing the different sub sections of section 48-E of the aforesaid Act, came to the conclusion that once a proceeding under section 48-E of the Bihar Tenancy Act, is initiated the question of threatened dispossession, possession and restoration of should be decided in that proceeding and the proceeding under section 145 of the Code should be dropped. It was pointed out that a special forum has been provided under section 48-E of the Bihar Tenancy Act, for deciding disputes between landlord and under tenant in respect of threatened dispossession, possession and restoration of possession and such decision has been given a binding effect, even ousting the jurisdiction of the Civil Court. It is well known that any decision given by a Magistrate in a proceeding under section 145 of the Code is subject to the decision of a Civil Court. The same is not the position of a decision given in a proceeding under section 48-E of the Bihar Tenancy Act. It is well known that any decision given by a Magistrate in a proceeding under section 145 of the Code is subject to the decision of a Civil Court. The same is not the position of a decision given in a proceeding under section 48-E of the Bihar Tenancy Act. Subsection (13) of section 48-E of the Bihar Tenancy Act, says in clear and unambiguous terms that save as expressly provided in that Act, no Civil or Criminal Court shall have any jurisdiction over the subject matter of a dispute after a proceeding is initiated under sub-section (1) of section 48-E by the Collector. Again, in the case of Surendra Singh and others vs. Jang Bahadur Singh and another (1980 Bihar Bar Council Journal 653) the same question was examined in context of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, (hereinafter to be referred to as' the Land Ceiling Act'): In that case, a proceeding under section 145 of the Code had been decided against the petitioners in respect of several plots. Later, an application under sub-section (3) of section 16 of the Land Ceiling Act, was filed for transfer of some of the plots which were subject matter of proceeding under section 146 of the Code. The application under sub-section (3) of section 16 of the Land Ceiling Act, was allowed and a direction was issued to transfer the lands in favour of the pre-emptor, i.e. the petitioners before this Court. Thereafter, delivery of possession was also effected in accordance with sub-section (3) (ii) of section 16 of the Land Ceiling Act. Before this Court it was urged that in view of the different orders passed under the Land Ceiling Act, the order declaring the opposite party to be in possession of those plots had to be set aside because the orders passed in the Land Ceiling Act, had become final and they cannot be challenged even in a Civil Court. Before this Court it was urged that in view of the different orders passed under the Land Ceiling Act, the order declaring the opposite party to be in possession of those plots had to be set aside because the orders passed in the Land Ceiling Act, had become final and they cannot be challenged even in a Civil Court. This Court, in view of the provisions of the Land Ceiling Act, which oust the jurisdiction of a Civil Court in respect of the orders passed under the provisions of that Act, came to the conclusion that the orders passed under the Land Ceiling Act, have to be given effect to and the orders of the Magistrate under section 145 of the Code is respect of those plots have to be set aside and the proceeding shall be deemed to have been dropped in respect of those plots. 5. In the present case, it has been stated on affidavit on behalf of the petitioners that during the present survey operations the opposite party prayed for opening a separate under-raiyati khata and for preparation of a separate under-raiyati khatian in his name which was rejected by the survey authorities. A copy of that order is Annexure 5 to the supplementary affidavit. It has been further stated that 7 survey parchas were granted to the petitioners showing the petitioners to be in possession over the lands in dispute. Thereafter, consolidation proceedings were started in the three villages aforesaid and during the consolidation proceeding the lands were mentioned in the register prepared showing the petitioners as raiyat thereof. It has been stated on oath that before the Consolidation Officer, opposite party did not file any objection regarding the entries in the register of land in which the names of the petitioners were recorded as raiyat and in possession of the lands in dispute. One objection was filed on behalf of the opposite party in respect of plot nos. 104, 105 and 106 of village Lalsahiya, which was also rejected by the Consolidation Officer on 29.7.1976. A copy of the application along with the order passed thereon is Annexure 6 to the said supplementary affidavit. It has been asserted on behalf of the petitioners that no appeal or revision was filed by the opposite party against the order of the Consolidation Officer. A copy of the application along with the order passed thereon is Annexure 6 to the said supplementary affidavit. It has been asserted on behalf of the petitioners that no appeal or revision was filed by the opposite party against the order of the Consolidation Officer. The supplementary affidavit further recites that separate chaks have been allotted to the petitioners which have also been confirmed consisting of the lands in dispute. The petitioners claim that the possession of the chaks consisting of the lands in dispute has been delivered to them in accordance with the provisions of the Consolidation Act. No counter-affidavit has been filed on behalf of the opposite party. At the time of hearing none has appeared on his behalf. In such a situation, I am left with no option, but to accept the statements made in the supplementary affidavit. 6. If the statements are accepted, now the question is as to whether the different orders passed by the Consolidation officer in accordance with the provisions of the Consolidation Act, have to be ignored while deciding a proceeding under section 145 of the Code. In my opinion, the answer is in negative. Section 9 is a provision regarding the preparation of register of lands which provides that a register of lands belonging to raiyats has to be .prepared giving details of the name of the raiyats, the area, number of plots etc. In view of section 10, the said register has to be published and any person is entitled to file objection within 45 days of the date of the publication of such register. That objection has to be decided by the Assistant Consolidation Officer and any person aggrieved can file an appeal against the order passed by the Assistant Consolidation Officer, Section 10A of that Act, places a bar saying that no question in respect of any entry made in the register which might or ought to have been raised under section 10 but has not been raised, shall not be raised at subsequent stage of the consolidation' proceeding. Thereafter, under section 11 and 12 the scheme for consolidation has to be finalised. Under section 12A objection, if any, filed to such scheme has to be disposed of. In view of section 14 the Consolidation Officer has to fix a date with effect from which the final consolidation scheme shall come into force. Thereafter, under section 11 and 12 the scheme for consolidation has to be finalised. Under section 12A objection, if any, filed to such scheme has to be disposed of. In view of section 14 the Consolidation Officer has to fix a date with effect from which the final consolidation scheme shall come into force. Sub-section (2) of section 14 says that on and after the said date, a raiyat or under raiyat shall be entitled to possession of the plots allotted to him. Section 37 of that Act, bars the jurisdiction of the civil Court in the following words:- "No Civil Court shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act, with respect to any other matter for which a proceeding could or ought to have been taken under this Act. Section 39 is as follows:- "The provisions of this Act, shall have effect, notwithstanding anything to the contrary contained in any other law for the time being in force." On a plain reading, section 39 gives an overriding effect to the provision of the Act. Now, in face of section 37 and 39 the decision of the Consolidation Officer in accordance with the provisions of the Act, cannot be challenged in any Civil Court and in that sense it is final. It is well known that so far as the final order in a proceeding under section 145 of the Code is concerned, it is subject to any decision by a Civil Court. It has been pointed out on several occasions that a proceeding under section 145 of the Code does not purport to decide the right, title and interest of the parties to the dispute, the main object of the proceeding being to decide the dispute so far as the criminal court is concerned, with the sole purpose to maintain peace. Whereas, the orders passed and decision taken in a consolidation proceeding are not to be challenged in a Civil Court. In such a situation, in my view, it is difficult to hold that the Magistrate while deciding a proceeding under section 145 of the Code can ignore the binding orders passed in a consolidation proceeding. Whereas, the orders passed and decision taken in a consolidation proceeding are not to be challenged in a Civil Court. In such a situation, in my view, it is difficult to hold that the Magistrate while deciding a proceeding under section 145 of the Code can ignore the binding orders passed in a consolidation proceeding. If it is held that Magistrate can ignore such order and can come to his own conclusions on the basis of the materials as they existed on the date the initiation of the proceeding under section 145, it shall lead to an anomalous position in many cases, inasmuch as in a proceeding under section 145 of the Code one of the parties to the dispute can be declared to be in possession whereas in the consolidation proceeding the other party is either held to be in possession or put in possession in accordance with the provisions of that Act, as has happened in the present case. As such, the only course to avoid this situation will be to give effect to the order passed in the consolidation proceeding which are final and binding in nature. 7. Accordingly, this revision application is allowed and the impugned order declaring the opposite party to be in possession of the lands in dispute is set aside. The rights and claims of the parties in respect of the disputed lands shall be governed in accordance with the final orders passed in the consolidation proceeding. I agree Application allowed.