Gopal Upadhya And Another v. Vishwanath Pathak — 1977 DIGILAW 42 (PAT)

Judgment 1. This application by Gopal Upadhya and another is directed against the final order dated 9th of Sept., 1974 passed in a proceeding under S.145 of Cr. P.C., 1898 (hereinafter to be called the Code) by the Magistrate. In the said proceedings, the petitioners were the members of the second party, whereas Vishwanath Pathak and five others, namely, opposite party Nos. 1 to 6 were the members of the first party. It may be noted that only opposite party Nos. 1 to 3 had contested the proceeding, whereas opposite party Nos. 4 to 6 had not filed any written statement nor they had contested the proceeding before the learned Magistrate. Awadh Kishore Bhagat, opposite party No. 7, was a member of the third party, whereas opposite party No. 8 Thakur Upadhya and opposite party No. 9 Vikramaditya Upadhya were the members of the second party. 2. The subject-matter of dispute consisted of 1 bigha 16 kathas and 10 dhurs of land comprised under various plots in Khata Nos.294 and 95 in village Kherari, Police Station Darauli, in the district of Siwan. On a police report, a proceeding under S.144 of the Code was initiated between the parlies on 13th of March 1973, which was converted into a proceeding under S.145 of the Code on 20th of April, 1973. 3. The respective cases of the parties have been already mentioned in the impugned order. Both the parties, in support of their respective cases of possession, over the disputed land, filed affidavits and other documentary evidence. The learned Magistrate, after considering the materials on the record concluded as follows:- "1st party Nos.1 to 3 have been coming into possession of the disputed lands ever since 25/XI/72. The possession of the 1st party Nos. 1 to 3 upon the disputed land is accordingly being hereby declared and upheld; the 2nd party and the 3rd party are not in possession and they are forbidden for making any interference in the possession of the 1st party Nos. 1 to 3 will continue till they are evicted by the Civil Courts". 4. 1 to 3 upon the disputed land is accordingly being hereby declared and upheld; the 2nd party and the 3rd party are not in possession and they are forbidden for making any interference in the possession of the 1st party Nos. 1 to 3 will continue till they are evicted by the Civil Courts". 4. Learned counsel for the petitioners has assailed the impugned order and raised the following points for consideration by this court:- (I) The subject-matter of the proceeding was vague and there was nothing on the record to ascertain the subject-matter of the proceeding; (II) The Magistrate who passed the impugned order has erred in relying upon the local enquiry held by him without serving a copy of the report of his local enquiry to the petitioners, nor giving the petitioners an opportunity to rebut the same.; (III) The Magistrate having held that the property in dispute belonged to the joint family consisting of the ancestors of petitioners and the opposite first party, it was incumbent upon the Magistrate to have declared joint possession of the petitioners along with the other party in view of his own findings. (IV) The learned Magistrate has erred in not considering some of the important documents filed by the petitioners; and (V) The affidavits were sworn by the parties before the Magistrate who was not in seisin of the proceeding. 5. It will be convenient to take up point No. I first for consideration. In support of the submission under this point, learned counsel for the petitioners has drawn my attention to a portion of the impugned order itself wherein the learned Magistrate has noted the subject-matter of the proceeding thus:- Khata No Plot No. Area. 294 1761 7 K. 91/2 dhurs middle portion. 1763 6 K. 51/4 dhurs Southern portion. 95. 1760 9 K 11/2 dhurs Norhern portion. " 2002 10 K. 171/2 dhurs Southern portion. " 1771 2K-16dh. Eastern portion. Learned counsel emphasised that by merely describing some of the lands contained under various plots lying within middle portion, southern portion, northern portion and eastern portion, the exact location of the subject-matter of dispute in the absence of the boundary is not possible nor they can be ascertained. " 1771 2K-16dh. Eastern portion. Learned counsel emphasised that by merely describing some of the lands contained under various plots lying within middle portion, southern portion, northern portion and eastern portion, the exact location of the subject-matter of dispute in the absence of the boundary is not possible nor they can be ascertained. It is clear that the entire lands comprised under those plots are not the subject-matter of dispute and only some portions of the lands comprised under those plots are the subject-matter of dispute. Learned counsel for the petitioners in this connection has relied on the decision in Khartar Sao V/s. Pradip Singh ( AIR 1952 Pat 234 ): (1952 Cri LJ 699) where Das, J., observed that the subject-matter of dispute must be ascertained definitely and described clearly in the preliminary order. Absence of clear specification of the subject of dispute is a vital defect aid the final order passed in the proceeding can have no meaning, unless it is known for certain what is the subject of dispute in respect of which the final order has been passed. Learned counsel also relied on the decision in Thakur Mahton V/s. State (1972 BLJR 265): (1972 Cri LJ 835), where, P.K Banerji and S. Wasiuddin, JJ. observed that a final order in a proceeding under S.145 of the Code of Criminal Procedure is conclusive order between the parties and it is intended to be effective until the party in whose favour the order is made is evicted in due course of law, that is to say, until a decision of a competent Civil Court. To make an order conclusive and binding it is necessary that the order should be of such a nature that it should be well ascertained without reference to any other document. The preliminary order as well as the final order must show the exact location and the extent of the land which is the subject-matter of dispute. The order has to be very definite and precise so that the parties may not be left in doubt as to what was really the extent of the subject-matter of dispute. The preliminary order as well as the final order must show the exact location and the extent of the land which is the subject-matter of dispute. The order has to be very definite and precise so that the parties may not be left in doubt as to what was really the extent of the subject-matter of dispute. The Magistrate in a proceeding under S.145 of the Code of Criminal Procedure has also to decide not the right to possession or the rights of the parties, but only as to who was in actual possession and, therefore, determination of the question as to what was the extent of possession is a very essential ingredient when passing final order in a proceeding under S.145 of the Code of Criminal Procedure (sic). What their Lordships meant was that the subject-matter of dispute must be easily ascertainable so that in a future litigation, the parties could know with definiteness as to what was the subject-matter of dispute then as it is well settled that the order passed by the Magistrate in a proceeding under S.145 of the Code is final so far as the criminal Courts are concerned. Therefore, it is necessary that the subject-matter of dispute should be easily ascertainable. If the parties knew the subject-matter of dispute as may appear either from the written statement or any other statement made or from any other material on the record of the proceeding, then that defect is cured. In other words, if there is any material on the record to show that exact location of the subject-matter of dispute, then the proceeding cannot be assailed on this ground. Mr. Kailash Roy, learned counsel appearing on behalf of the opposite party has failed to point out, in the instant case, any such material on the record which could assist in ascertaining the exact location of the subject-matter of dispute. Mr. Kailash Roy, learned counsel appearing on behalf of the opposite party has failed to point out, in the instant case, any such material on the record which could assist in ascertaining the exact location of the subject-matter of dispute. A similar view was taken by a Bench of this Court in Shreedhar Thakur V/s. Kesho Sao (ILR 40 Pat 507): (1962 (2) Cri LJ 770) where Kamla Sahai, J., who delivered the judgment of the Court, observed:- (at p. 772 of Cri LJ) "If, therefore, the subject-matter is left vague and cannot be ascertained even with reference to the materials on the record, read with the initial proceeding, the entire purpose of a proceeding under S.145 would be frustrated." For the above reasons, therefore, the submission of the learned counsel for the petitioners on this point is well founded. 6 Now I turn to consider the submission of the learned counsel under point No. II. In this regard, learned counsel for the petitioners drew my attention to a portion of the impugned order wherein the learned Magistrate is alleged to have relied upon the local enquiry made by him. The relevant portion of the impugned order reads thus:- "During the course of my local enquiry I had found demarcation in forms of Merh in one fourth of each of Plot Nos. 1771, 1761, 1760 and 2002. It was also found that each of the above plots had some signs indicating subdivisions in fields of one third of each of them. Regarding plot No.1763 parties were not sure about its boundary. Even 2nd party had contended that the 1st Party tried to remove the Merh and dandars completely prior to the holding of the local enquiry and 2nd Party had filed a petition for prosecution under S.188, I. P. C. for acts committed by the 1st party during the pendency of the proceeding. The police had however found that 1st party had committed no new acts and this petition of the 2nd party was rejected. Therefore, having considered the affidavits of the parties, their various documents along with other relevant facts and circumstances I am of the view. .......". The police had however found that 1st party had committed no new acts and this petition of the 2nd party was rejected. Therefore, having considered the affidavits of the parties, their various documents along with other relevant facts and circumstances I am of the view. .......". Learned counsel, therefore, urged that while coming to the impugned findings, the learned Magistrate was influenced by his own local enquiry and a copy of the memorandum of local enquiry, he asserted, was also not handed over to the petitioners nor any opportunity was given to them to rebut the same. That also, according to him, was not in accordance with law. In order to find support to his contention in this connection, he relied on the decision in J. W. Broucke V/s. Kamleshwari Narain Singh ( AIR 1950 Pat 472 ) where Shearer J. observed that in a proceeding under S.145 of the Code of Criminal Procedure where local enquiry is made by the Magistrate failure to allow the other party to show that the report was erroneous, was bad. Opportunity should be given to the other party to adduce rebutting evidence. Besides in the instant case, the learned Magistrate also ought to have given a copy of the memorandum of his local inspection to the petitioners or other parties concerned. In that view of the matter as well, in my opinion, the impugned order is vitiated. 7 As regards the submission of the learned counsel under point No. V. it is now settled that the affidavits to be filed in a proceeding under S.145 of the Code, should be sworn only before the Magistrate who is in seisin of the proceeding. A reference may also be made in this connection to the decision in Chhotan Prasad Singh V/s. Hari Dusadh (1977-I SCC 102): (1977 Cri LJ 249). In the instant case, however, it is not clear as to whether the affidavits sworn by the parties were actually sworn before the Magistrate who was in seisin of the proceeding or not. For the view which I have taken while dealing with points Nos. I and II, it is not necessary to deal with the other points raised by the learned counsel for the petitioners. 8. In the result, the application is allowed and the impugned order of the learned Magistrate is quashed. For the view which I have taken while dealing with points Nos. I and II, it is not necessary to deal with the other points raised by the learned counsel for the petitioners. 8. In the result, the application is allowed and the impugned order of the learned Magistrate is quashed. If the learned Magistrate is still satisfied that there is an apprehension of breach of the peace between the parties, he will draw up proper proceeding stating clearly the exact location of the subject-matter of dispute and then determine the case afresh in accordance with the observation made above and in accordance with law.