Brijnari Devi v. Jainarain Lal — 1974 DIGILAW 61 (PAT)

JUDGMENT : C.P. SINHA, J. 1. This revision petition is directed against the ORDER :, dated 25.2.1971 of Mr. G.P. Singh, Magistrate First Class, Buxar, in which he has declared the possession of the first party Jainarain Lal (opposite party here) over the disputed land measuring 3.65 acres in village Mahdah, P.S. Buxar, district Sahabad with the direction to the members of the second party (present petitioners) not to disturb that possession until the decision of a competent Civil Court. This ORDER :of the Magistrate is based on the JUDGMENT : dated 5.2.1971 of the Additional Munsif, Buxar to whom the Magistrate had referred the question or possession, under Section 146 of the Code of Criminal Procedure (hereinafter referred to as the Code). The Magistrate's reference is contained in his ORDER :dated 5.11.1969. 2. As it appears, on 7.7.1968 the village chaukidar reported about apprehension of breach of peace at the hands of these parties on this land. The Assistant Sub-Inspector of Police on that report visited the site and reported to the Sub-divisional Magistrate for immediate action under Section 144 of the Code against the parties. On receiving that report the Sub-divisional Magistrate drew up a proceeding dated 16.7.1968 restraining both sides to go upon the land. That proceeding was however subsequently converted to be under Section 145 of the Code under his ORDER :dated 13.9.1968 and he attached the land. In pursuance to the notices issued on parties they filed their written statements as also documents and affidavits. After having looked into these papers the learned Magistrate, in his ORDER :dated 5.11.1969 expressed himself unable to give a clear verdict on the question as to which of the two parties was in possession of the disputed land on the date of initiation of this proceeding or two months before. Accordingly he referred the matter to the civil court for decision on this point and continued the attachment of the land. The learned Munsif, after having considered the evidence in the shape of documents and affidavits before him decided this question in favour of first party and returned the record with his that verdict which the Magistrate adopted in his impugned ORDER :and declared the possession of the first party accordingly. Thereafter this revision. 3. The learned Munsif, after having considered the evidence in the shape of documents and affidavits before him decided this question in favour of first party and returned the record with his that verdict which the Magistrate adopted in his impugned ORDER :and declared the possession of the first party accordingly. Thereafter this revision. 3. The parties are not at controversy on the point that the disputed land, in four plots, had been acquired in the name of Dukhi Lal partly by settlement through registered putta and partly by purchase between the years 1940-47. This Dukhi Lal was the maternal uncle of the first party Jainarain Lal. After having left his original village he (Dukhi Lal) came and resided with Jainarain Lal in latter's village where he (Dukhi Lal) breathed his last in November, 1967. According to the petitioner no. 1 Brijnari Devi, she was his legally married wife, whereas according to Jainarain Lal she was his concubine. 4. The first party's claim is that when Dukhi Lal was living with him in his house, he (first party) had acquired this land from his own money in the name of Dukhi Lal out of his affection for him. After getting into possession of the land after his such acquisition of it, he (first party) began to cultivate and appropriate its produce without any objection from any quarters. Subsequently, on the death of Dukhi Lal in November 1967, he (first party) moved the appropriate revenue authority in December, 1967 for mutation of his name on this land, which was allowed on 4.2.1968. The petition of petitioner no. 1 Brijnari Devi for mutation of her name over this land on the ground of inheritance from her husband Dukhi Lal was rejected by the revenue authority on 9.2.1968 (she is said to have filed an appeal against this rejection before the Land Reforms Deputy Collector, which is said to be still pending). First party also got his name entered over this land in place of the original tenant Dukhi Lal in the canal department and second party's objection thereto was also dismissed. In proof of his claim of its actual peaceful possession from the life time of Dukhi Lal, he (first party) asserts to be in custody of all its original documents like acquisition papers, rent receipts, canal purchase and receipts of Dukhi Lal's time as also those subsequent to his death. 5. In proof of his claim of its actual peaceful possession from the life time of Dukhi Lal, he (first party) asserts to be in custody of all its original documents like acquisition papers, rent receipts, canal purchase and receipts of Dukhi Lal's time as also those subsequent to his death. 5. Petitioner no. 2 is the sister's husband of petitioner no. 1. The latter is said to be holding power of attorney (Mokhtar-e-am) on her behalf. Their case is that it was Dukhi Lal who had acquired this land with his own money and Jainarain Lal had nothing to do with that. During his life time Dukhi Lal had been cultivating it on his own behalf and appropriating its produce. After his death petitioner 1 as his widow got into its possession and has been cultivating and managing it through petitioner 2. After Dukhi's death Jainarain Lal began to ill treat her. Consequently she left his house and began to reside with petitioner no. 2. In June, 1968 when she was getting this land cultivated with her plough, first party came and obstructed her from doing so. They also made assault on her for which she filed a criminal case under Section 14/327 of the Indian Penal Code against them (this case is said to have ended in their conviction by the Magistrate on 18.1.1972 against which they have filed an appeal which is still pending. When she wanted to plough the land again, as usual, the second party again objected which gave rise to apprehension of breach of the peace on which the local police reported for action against them on which the instant proceeding was commenced. 6. Mr. Krishna Prakash Sinha appearing for the first party has assailed the legality of the impugned ORDER :on the following grounds. First, the Magistrate's ORDER :dated 5.11.1969 was wholly incompetent and without jurisdiction inasmuch as it did not satisfy the test laid down under Section 146(1) of the Code. The reference was therefore to be treated as wholly illegal. Accordingly, the decision of the Munsif in that illegal reference must be taken to be quite invalid. Consequently Magistrate's ORDER :based on that Munsif's invalid ORDER :must be regarded as illegal and set aside. The reference was therefore to be treated as wholly illegal. Accordingly, the decision of the Munsif in that illegal reference must be taken to be quite invalid. Consequently Magistrate's ORDER :based on that Munsif's invalid ORDER :must be regarded as illegal and set aside. Secondly, there has been flagrant violation of the legal principles on the part of the Munsif in that he has simply catalogued the affidavits of the parties filed by them on the question of possession in paragraph 9 of his JUDGMENT : without giving any indication as to on which of them he has relied as proof of possession and which he has rejected. At the third place, the Munsifs finding as recorded in paragraph 13 of his JUDGMENT : that it was Jainarain Lal, who had grown the crop on the disputed land in 1967 and had harvested it in 1968 after the death of Dukhi Lal is wholly perverse having no evidence as its basis. Moreover, as he has decided this question it would manifest that it is the outcome of his prejudiced mind against the second party, there being no evidence an record to do so. On these contention, learned counsel has urged that this is a fit case in which this Court should interfere and quash the impugned ORDER :. 7. This being a case of Magistrate's decision based on the Civil Court's JUDGMENT : made an a reference to it under Section 146 of the Code the principles laid down in the Full Bench decision of this Court in Raja Singh and another vs. Mahendra Singh and others, AIR 1963 Patna 243 which has been subsequently affirmed in the full Bench case Dewani Choudhary and others vs. Chaturi Manjhi and others, 1971 PLJR 14 = 1971 BLJR 116 must be kept in view. In these cases, their Lordships while upholding the power of the High Court to interfere in appropriate cases have held that the High Court as a rule will not interfere with the finding of the Civil Court merely an the ground of non-consideration of evidence or some irregularity found to have been committed by the Civil Court and it is only in exceptional cases of flagrant violation of legal principles and that also after the Magistrate has passed final ORDER :in conformity with such finding that the High Court will interfere. The question whether this Court sitting in revision should interfere with the impugned ORDER :s or not will have table decided keeping in mind these principles. After having considered the entire facts and circumstances of the matter I am unable to think that this case falls under the category of exceptional cases where there has been flagrant violation of legal principles as to require any revisional interference. There also seems no substance in the above contention addressed by the petitioners. 8. On a scrutiny of the aforesaid ORDER :, dated 5.1.1969 under which the Magistrate referred the case to the civil court for a decision on the question of possession having found himself unable to do so, it is not at all possible to hold that the reference so made was in any way incompetent or without jurisdiction. As this ORDER :runs, it is noticed that in the first part the Magistrate has given the gist of the facts on which the two sides have based their claim in this litigation. Thereafter he has referred to the fact of the two sides being armed with papers in support of their respective case. It was in that situation that the Magistrate expressed his inability to give a verdict on the factum of possession with either of them at the relevant time and decided to refer the matter to the civil court under Section 146 of the Code for its decision. Having regard to these facts, as find place in the reference ORDER :, I do not think, the Magistrate can be accused of having made the reference blind fold to shirk his own responsibility in the matter. Section 146(1) empowers the Magistrate to resort to such a reference if he is of the opinion that none of the parties was then in such possession or is unable to decide as to which of them was in such possession of the subject of dispute. All that he is required to do in such circumstances is to draw up statements of facts of the case and forward the record of the proceeding to the Civil Court of competent jurisdiction to decide the question of possession. From what I have stated above, it would appear that the Magistrate had drawn the gist of the claims as laid by the two sides relating to possession of the land. From what I have stated above, it would appear that the Magistrate had drawn the gist of the claims as laid by the two sides relating to possession of the land. He has also expressed in clear terms, his inability to decide this question because both sides possessed papers to support their claim. On these facts, no illegality can be read in his reference ORDER :. So also, there is nothing to warrant an inference that this reference suffered from any incompetence or want of jurisdiction on his part. In that situation, the contention that the Munsif's entertainment of this reference and recording of findings thereon must be treated as absolutely illegal and lacking jurisdiction must be rejected as misconceived and without merit. On the contrary, the reference as it stands has to be deemed as satisfying the requirements of law on this point. 9. The Division Bench decision of this Court in State of Bihar vs. Hari Mishra and another, AIR 1965 Patna 411 relied upon by the petitioners in this connection would not seem to be at all helpful. In that case the reference ORDER :of the Magistrate was in the term:– "The first party files written statement and a petition for time to file, affidavit. Second party does not file anything. Heard lawyers of both parties. Admittedly there is a title suit pending between the parties in which the question of possession will be gone into. It is, therefore not desirable for this Court to take up consideration of this question in this proceeding. I am fortified in this view by Rugga Natha vs. Moona Nanda, AIR 1959 Raj 153 (1). The lands in dispute are attached under Section 146 Cr. P.C. Send the record to the Munsif for needful. Parties directed to appear before him on 1.3.1960." When that reference was received by the Munsif an objection was taken before him by the first party in the proceeding that the reference so made, was not proper as not having been made in accordance with the provisions laid down in Section 146(1) of the Code. Parties directed to appear before him on 1.3.1960." When that reference was received by the Munsif an objection was taken before him by the first party in the proceeding that the reference so made, was not proper as not having been made in accordance with the provisions laid down in Section 146(1) of the Code. Learned Munsif found merit in that objection of the first party and referred the matter to the High Court through the District Judge posing three questions, two of which were whether it was open for a Magistrate to refer a case under Section 146(1) of the Code to make such reference without drawing up statement of the facts of the case and without expressing his opinion that he was unable to decide the question of possession, and whether it would be within the jurisdiction of the Civil Court to decide the question of possession on a reference like that. The learned judges of this Court, after examining all the relevant provisions of law, as also the circumstances obtaining in that case held that the reference by the Magistrate was incompetent and in that circumstance any decision that may be given by the Civil Court on even taking fresh evidence before it will be without jurisdiction. 10. From what I have stated above it would be manifest that facts in that case were quite different from those in the instant case. In that case learned Magistrate without caring to comply with the requirements of Section 146(1) just decided to refer the matter to the civil court only because of the pendency of a title suit between the two sides in which he thought the question of possession would be gone into. In other words, he did not apply his mind and just threw the case into the civil court shirking his own responsibility into the matter. Here however that is not the case. As the impugned reference ORDER :has shown, the Magistrate had applied his mind to the matter but when he failed to decide the question of possession in favour of either side in view of both of them being fortified with documents in proof of their respective claim that he decided to refer the question for decision to the competent civil court which he was entitled to do in law in the circumstances. Moreover, as it is clear in that case the objection to the reference was taken before the civil court at the earliest opportunity i.e. soon as it was received in the court of the Munsif. In the instant case this is not so. Here, these petitioners had fully participated in the hearing that took place in the Munsif's court on this reference. It is only after Munsif's ORDER :has gone against them that they have taken into their hand to raise this point for the first time at this late stage. 11. In paragraph 9 of his JUDGMENT : the learned, Munsif has, no doubt, just stated the fact of filing of affidavits of fifteen persons, setting out their names, testifying to the disputed land being in the possession of Jainarain Lal (first party). Immediately thereafter, he has also referred to the fact of seven affidavits (with names of those deponents) which had been filed by the second party in which they had asserted the possession of Brijnari Devi (second party no. 1) over this land. This must however be read in conjunction with his findings of possession as arrived at on the basis of the other materials also on the record. This subsequent discussion, he has tried to scrutinise the different document that have been brought on record by the parties. After having taken into consideration all the materials which must be taken to include his consideration of all these affidavits also, at the end of paragaph 13 of his JUDGMENT : he has observed. "All these facts go to show that, Jainarain Lal the first party is in possession of the disputed land." His concluding finding is to the effect "In view of the discussions made above I hold that Jainarain Lal the first party is in possession of the disputed land involved in this proceeding." Reading his ORDER :as a whole he can well he taken to have accepted the factum of possession in favour of the first party averred to in the affidavits filed on his behalf as supported by other materials on record. In such a circumstance, there seems no point in accusing the Munsif to have committed flagrant violation of any legal principles in this behalf. 12. In such a circumstance, there seems no point in accusing the Munsif to have committed flagrant violation of any legal principles in this behalf. 12. Munsif's conclusion in paragraph 13 of his JUDGMENT : regarding Jainarain Lal having grown the crop on the land in question in 1967 and harvesting them in 1968 after the death of Dukhi Lal on the reason given by him cannot also be regarded as perverse being result of his biased mind against these petitioners. Obviously, there is nothing on the record to warrant such a view. In the end, learned counsel for the petitioners has invited my attention to the fact that though on her behalf there was a canal purcha dated 24.6.1968 and canal water rate receipt dated 7.12.1966 on record, but the Munsif has overlooked them altogether, which is manifest from his JUDGMENT : being completely silent about them. In. this connection the other side pointed out that from his side there were canal purchase and water rate receipts to show that he had, subsequent to the death of Dukhi Lal, paid those charges of this land after having had his name mutated in the canal department. He had also produced rent receipts showing payment of rents of the land by him after having got his name mutated thereon consequent upon Dukhi Lal's death. In the face of all these documents, according to his learned counsel, even if the Munsif had by some inadvertence failed to consider the above canal parcha and water rate receipt filed by the second party, it cannot be a valid ground for this Court to interfere with the Munsif's ORDER :, because in the aforesaid Full Bench decisions, this Court has, in clear terms laid down that the High Court will not interfere with the finding of the civil court merely on the ground of non-consideration of some evidence or some irregularity found to have been committed by the civil court. There seems substance, in this contention of the opposite party. Even if these two documents of the petitioners have failed to attract his notice this by itself cannot constitute a sufficient ground for interference with his ORDER :in this revision. 13. For the above reasons, this application appears to be without substance and must fail. It is accordingly dismissed. Application allowed.