Surendra Singh v. Jang Bahadur Singh — 1980 DIGILAW 50 (PAT)

Judgment Nagendra Prasad Singh J. 1. The members of the second party in a proceeding under Sec.145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code) are petitioners in this writ application which has been filed for quashing an order passed in the said proceeding. The impugned order has been passed by the learned Magistrate after receipt of a finding from the learned Munsif under Sec.146 of the said Code, 2. It appears that initially a proceeding under Sec.107 of the Code was mitiated in the year 1968 which was converted into a proceeding under Sec.145 of the Code on 26-8-1970. The subject-matter in dispute was attached during the pendency of the proceeding. The dispute related to seven plots of land details whereof were given in the proceeding. The learned Magistrate referred the dispute to the Munsif in accordance with the provisions of Sec.146 of the code on 30-11-1973. The learned Munsif, on a consideration of the materials on record and hearing the parties, recorded his finding on 12-8-1977 holding that the first party-respondent was in actual physical possession of the subject-matter of the dispute on the date of the initiation of the proceeding under Sec.145 of the Code. A criminal revision application was initially filed which was heard by a learned single Judge of this Court. On behalf of the petitioners it was urged that whatever may be said so far as the other plots in dispute are concerned, but so far as the three plots, namely, plot nos.1360, 1361 and 2223 are concerned, the learned Magistrate should have either dropped the proceeding or should not have passed an order of restraint against the petitioners because the petitioners came in possession thereof during the pendency of the proceeding in accordance with the provisions of sub-section (3) (ii) of Sec.16 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus land) Act, 1961 (hereinafter referred to as the Act ). The learned Judge has referred the case for consideration before a Division Bench. The learned Judge has referred the case for consideration before a Division Bench. In view of the decision of the Supreme Court in the case of Chandrasekhar Singh and others v. Siya Ram Singh and others ( AIR 1979 SC 1 ), learned counsel appearing for the petitioners are sought permission to convert the revision) application into an application under Articles 226 and 227 of the Constitution which was granted, and the application has been heard as a writ application. 3. The lands in dispute admittedly belonged to one Raghubar Singh. According to the case of the first party-respondent, said Raghubar Singh had executed a registered deed of will favour of his daughter Kishori Devi on 7.7,1964. After his death, said Kishori Devi came in possession of his properties, including the lands in dispute. Kishori Devi executed five sale deeds on 24.8.1968 and four sale-deeds on 29.8.1968 in respect of the plots in dispute. Those sale-deeds were executed in the names of different family members of the first party-respondent Jang Bahadur Singh, and since the date of the execution of the sale-deeds first party and his family members are in possession thereof. 4. So far as the case of the second party-petitioner is concerned, according to them Raghubar Singh having no male issue, used to get the lands cultivated through bataidars and the uncle of the petitioners and the petitioners were inducted as bataidars of the lands in dispute and they have remained in possession thereof in that capacity. According to them, the sale-deeds which had been executed by Kishori Devi in favour of the family members of the first party were inoperative and were without any consideration money. 5. At the time of the final hearing of the proceeding, special claim in respect of the three plots mentioned above was made on the basis of the orders passed in three cases which had been filed under sub-section (3) of Sec.16 of the Land Ceiling Act. In respect of the transfer of plot no.1360, an application under sub-section (3) of Sec.16 of the Land ceiling Act was filed on 29.10.1968 after making the necessary deposit giving rise to case no, 15 of 1968- 69. Another application in respect of plot no.2223 was filed on that very day giving rise to case no.16 of 1968-69. In respect of the transfer of plot no.1360, an application under sub-section (3) of Sec.16 of the Land ceiling Act was filed on 29.10.1968 after making the necessary deposit giving rise to case no, 15 of 1968- 69. Another application in respect of plot no.2223 was filed on that very day giving rise to case no.16 of 1968-69. For plot no, 1861, an application under secs.16 (3) of the aforesaid Act was filed on 25.11.1968 giving rise to case no.17 of 1968-69. In these cases the sons and grandsons of respondent no.1 were impleaded who had purchased those plots from aforesaid Kishori Devi. Ultimately, all the three applications were allowed and Kishori Devi, the vendor, was directed to execute sale deeds in favour of the pre-emptor, i. e. , the uncle of the petitioners. The appeal, revision against such orders were also dismissed by the authorities concerned. Thereafter, on 14.11.1975, delivery of possession was effected in accordance with sub-section (3) (ii) of Sec.16 of the Land ceiling Act, and the uncle of these petitioners and the petitioners, who are his legal representatives, came in possession thereof. Tne first party-respondent of this case filed an application for recall of the aforesaid order dated 14.11.1975 effecting delivery of possession. That petition was rejected on 12.3.1976. A copy of that order is annexure-1 to the supplementary affidavit filed on behalf of the petitioners on 19.10.1979 ). It may be mentioned that the appeal filed by respondent no.1 against the aforesaid order before the Collector, Patna challenging the delivery of possession in favour of the petitioners was also dismissed by the order dated 6.11.1979, a copy whereof has been filed before this court along with an affidavit. 6. It may be mentioned that the appeal filed by respondent no.1 against the aforesaid order before the Collector, Patna challenging the delivery of possession in favour of the petitioners was also dismissed by the order dated 6.11.1979, a copy whereof has been filed before this court along with an affidavit. 6. According to the petitioners, the learned Magistrate should have either dropped the proceeding so far as the aforesaid three plots are concerned taking note of the fact that during the pendency of the proceeding admittedly these petitioners had come in possession of chose plots in the lands ceiling case, or, while declaring the first party to be in possession on the date of the initiation of the proceeding under Sec.145 of the Code, the learned Magistrate should not have restrained these petitioners from goiag upon the lands in view of the judgment of the Supreme Court in the case of Chandrasekhar Singh and others (supra) did not challenge the order passed by the Magistrate on the basis of the finding recorded by the learned Munsif in respect of other plots. 7. A Magistrate has been vested with the power of initiating a proceeding under Sec.145 of the Code whenever there is apprehension of breach of the peace concerning land and for avoiding the breach of the peace he has to decide as to which of the parties to the dispute was in actual physical possession of the land in question, Sec.145 of the old Code enables the magistrate to refer the dispute to civil court if he is of the opinion that none of the parties was in such possession or he was unable to decide a; to which of them was in possession of the subject nutter in dispute. Before doing that, he has to attach the subject -matter of dispute. Sub-section (1b) of Se 3.145 requires him to decide the dispute in accordance wit A the of finding the civil court. As such, once the finding was recorded by the civil court, the learned Magistrate had no option but to pass an order in conformity thereof. That order is not to be questioned in appeal, review or revision. There was some controversy, which has been set at rest by the afore said Supreme Court judgment. 8. As such, once the finding was recorded by the civil court, the learned Magistrate had no option but to pass an order in conformity thereof. That order is not to be questioned in appeal, review or revision. There was some controversy, which has been set at rest by the afore said Supreme Court judgment. 8. Learned counsel appearing for the petitioners, however, submitted that the bar placed by sub-section (ID) of Sec.145 of the Code is not applicable to the writ jurisdiction and the power under Articles 226 and 227 should be exercised by this Court, to correct the order of the learned Magistrate so far as plot no.1350,1361 and 2223 are concerned, otherwise it will lead to an anomalous postition. By this the learned counsel meant that whereas the collector a quasi-judicial authority in exercise of the power conferred by subsection (3) of Sec.16 of the Land Ceiling Act, has put the petitioners in possession of those plots in due course of law, the Magistrate by the impugned order has restrained the petitioners from going upon those plots, and both the orders are final in the sense that now, there, is no question of challenging the legality thereof by way of appeal or revision. So far as hte order passed by the Collector in the land ceiling case is concerned, it cannot be questioned even before the civil court in view of Sec.43. In my view, the contention of the learned counsel appearing for the petitioners, is correct that two competent authorities under two enactments have passed final orders which are conflicting in nature. Sec.43 of the Land Ceiling Act says in clear and unambiguous term that except as provided in that Act no civil court shall have jurisdiction to settle, decide or deal with any question which is by under that Act, required to be settled, decided or dealt with by the Board of Revenue, the Commissioner, the appellate authority or the Collector. It further says that any order passed by the Board of Revenue, the Commissioner, the appellate authority or the Collector shall :not be questioned in any court. The result whereof will be that the order dated 14.11 1975 putting the petitioners in possession of the three p1ots aforesaid subject to appeal or revision become final. It is an admitted position that even appeal against that order was dismissed and no revision is pending. 9. The result whereof will be that the order dated 14.11 1975 putting the petitioners in possession of the three p1ots aforesaid subject to appeal or revision become final. It is an admitted position that even appeal against that order was dismissed and no revision is pending. 9. Now the question which has to be answered is as to whether in such a situation when it was brought to the notice of the learned Magistrate before he had passed the final order in question on 1.5.1978, what was the option left to him. The learned Magistrate has refused to take note of delivery of possession under the Land Ceiling Act saying that he had to pass the final order in conformity of the finding of the learned Munsif. It is true, sub-section (IB) of of Sec.146 of the Code requires the Magistrate to dispose of the proceeding in conformity with the decision of civil court. The Civil Court, as provided in sub section (1) of Sec.146 itself has to decide as to which of the parties was in possession of the subject matter of dispute on the date of initiation of the proceeding under Sec.145 of the Code learned counsel appearing for the petitioners urged that having agreed with that finding the learned Magistrate should not have restrained the petitioners from going upon the land in terms of sub-section (6) of Sec.145. Sub-section (6) of Sec.145 provides that if the magistrate decides that one of the parties was in possession of the subject-matter of dispute "he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction". In view of the language of sub-section (6) of Sec.145, perhaps, there would have been some difficulty after having declared the first party-respondent to be in possession on the date of the proceeding, i. e. , on 26.8.1970, in refraining from passing an order restraining the petitioners from interfering with the possession of the first-party in view of the subsequent event, because sub-section (6) of Ses.145 requires such Magistrate to pass such an order. But, in my view, there was no difficulty in dropping the proceeding so far as those three plots were concernede Sub-section (5) of section 145 vests power in the Magistrate to cancel the preliminary order and to stay further proceedings in respect of the land in dispute on being satisfied that no such dispute as aforesaid exists or has existed. Once during the pendency of the 145 proceeding these petitioners legally came in possession of the aforesaid three plots through machinery of court under another enactment, then it was only proper for the Magistrate to take note of such event and to respect such delivery of possession of course, the matter would have been different if it was a fake claim. In the instant case the learn counsel appearing for the first party-respondent did not challenge that possession was delivered to the uncle of the petitioners and the application filed on behalf of the first party-respondent before the Collector as well as to the appellate authority challenging the order dated 14.11.1975 effecting delivery of possession has been rejected. On many occasions this quesion has arisern in connection with delivery of possession effected by civil court in execution of decree passed in a suit, during the pendency of a Sec.145 proceeding and it has been pointed out that in such a situation, one there is a genuine delivery of possession through court, there is no question of existence of any bona fide dispute so as to vest the Magistrate with power to decide the proceeding finally and proper course in such a situation is to drop the proceeding in respect of such land. Reference in this connection may be made to a Bench decision of this court in the cass of Mahsndra Bhagat and others V/s. Bacha Pandey and others (1959 Patna Law Reports 21) where Mr. Justice Kamla Sahai and Mr. Justice untwalia (as he then was) considered that question in detail. During the pendency of the proceeding under Sec.145 a decree having been passed by the civil court was executed and one of the parties was put in possession of a portion of the subject-matter in dispute, A prayer was made on his behalf to drop the proceeding in respect of that portion of the land. During the pendency of the proceeding under Sec.145 a decree having been passed by the civil court was executed and one of the parties was put in possession of a portion of the subject-matter in dispute, A prayer was made on his behalf to drop the proceeding in respect of that portion of the land. That having been rejected by the learned Magistrate, this court while allowing the revision application, observed that after delivery of possession by the civil court there was no bona fide claim over such land and the proper proceeding, if necessary to be started, was to initiate a proceeding under Sec.107 of the Code for maintaining peace. I am in respectful agreement with the aforsaid view. In my view, If the Magistrate is allowed to pass an order in favour of the person, who has been evicted in due course of law from the land in question, it will lead to an anomalous position, where two final orders passed by two competent courts are in conflict with each other. This will frustrate the very purpose of initiation of proceedings and passing of final orders under Sec.145 of the Code, i. e , for maintaining peace. Similar view was expressed in the case of Tekchand V/s. Sabir Husain (AIR 1955 hyderabad 65), a Full Bench decision of the Hyderabad High Court in the case of Laxmana Subrao Patil and others V/s. Smt. Bhagubai w/o Subray Patil (1963)1 crlj 697 ). 10. Accordingly, this writ application is allowed in part to the limited extent, i. e. , the final order passed by the learned Magistrate in respect of three plots, namely, plot nos.1360, 1361 and 2223 is quashed and set aside and the proceeding will be deemed to have been dropped in respect of these plots in view of the orders passed by the Collector in the land ceiling cases. Shivanugarh Narain, J.- I entirely agree. But, since the point is one of first impression, 1 wish to and a few words obout the arguments advanced on behalf of the respondent that where a reference under section 146 of the Code of criminal Procedure, 1898, os amended by the 1955 Amending Act, (hereinafter referred to as the Code has. Shivanugarh Narain, J.- I entirely agree. But, since the point is one of first impression, 1 wish to and a few words obout the arguments advanced on behalf of the respondent that where a reference under section 146 of the Code of criminal Procedure, 1898, os amended by the 1955 Amending Act, (hereinafter referred to as the Code has. been nude and the finding of the civil court under section 146 has been received, the learned Magistrate has no jurisdiction to drop the proceeding and he must dispose of the proceeding in conformity with the finding of the civil court. In my opinion, this construction of section 146 of the Code is misconceived. Sec.146 provides for reference to the civil court in the circumstances mentioned therein and requires the civil court to decide the question of possession referred to it and transmit its finding together with the record of the proceeding to the Magistrate by whom the reference was made, and then provides that "the magistrate shall, on receipt thereof, proceed to dispose of the proceeding under section 145 in conformity with the decision of the civil court" The contention odvanced is that once the finding of the civil court has been received the Magistrate is commanded to "proceed to dispose of the proceeding under section 145 in conformity with the decision of the civil court," and that it is not opea to him not to dispose of the proceeding in in conformity with the decision of the civil court and to pass a different type of order, namely, dropping the proceeding. The argument, though attractive, is unsound. As pointed out by the Supreme Court in Mathuralal V/s. Bhanwar lal and another ( AIR 1980 SC 242 ), sections 145 and 146 cf the Code of Criminal procedure together constitute a scheme for the resolution of a situation where there is likelihood of breach of the peace because of a dispute concerning any land or water or their boundaries. It is true that these observations were made in respect of sections 145 and 146 of the Code of Criminal Procedure, 1973, but they are equally applicable to toe provisions of sections 145 and 146 of the code we have, therefore, to construe the expression" proceed to dispose of the proceeding under section 145 in conformity with the decision of the civil court" occurring in sub-section (IB) of section (IB) of session 146 of the Code reading the same together with the provisions of section 145. 11. Under section 145, the Magistrate passes a preliminary order if he is satisfied that a dispute likely to causs breach of the peace exists concerning any land or water or boundaries thereof and is directed to complete the enquiry and decide as to which of the parties was in actual possession of. Bat, sub-section (5) of section 145 of the old Code provides : "nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed ; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the magistrate under sub-section (1) shall be final". Now, as was pointed out by a Bench of the Nagpur High Court consisting of Hidayatullah, J (as he then was) and R. Kaushalendra, J. , in The State V/s. Shearatan Singh Prahlad Singh and others (AIR 1951 Nagpur 201 at 203), the existence of a dispute likely to cause breach of the peace is a condition precedent to the exercise of jurisdiction by the Magistrate under Sec.145; where the condition necessary to found jurisdiction is absent, the Magistrate acts under sub-section (5) and cancels the preliminary order passed under sub-section (1 ). 12. It, thus, follows that where in respect of any piece of land the magistrate is satisfied that no dispute exists, the Magistrate has the right, and indeed the duty to cancei the preliminary order passed by him under Sec.145 (1) in respect of the said land. 12. It, thus, follows that where in respect of any piece of land the magistrate is satisfied that no dispute exists, the Magistrate has the right, and indeed the duty to cancei the preliminary order passed by him under Sec.145 (1) in respect of the said land. It seems difficult to believe that the Legislature would oblige the Magistrate to pass a final order under Sec.145 of the Code determining the dispute as to possession even in caases where it was manifest, and the magistrate was fully satisfied, that there was no dispute relating to that land much less a dispuie likely to cause breach of the peace, the existence of which is a condition precedent to the exercise of his jurisdiction under Sec.145. In the absence of words clearly indicating that the Magistrate must dispose of the proceeding and not drop it even when the dispute relating to the land has ceased to exist, such an intention can not be attributed to the Legislature. Sec.145 does not in terms provide that the Magistrate may not exercise the power which undoubtedly vests in him under, and perform the duty which undoubtedly is imposed upon him by Sec.145 (5) of cancelling the preliminary order and of dropping the proceeding once he has received the finding of the civil court upon a reference made to it under Sec.145. The expression "shall proceed to disposed of the proceeding under Sec.145 in conformity with the decision of the civil court" can, in my opinion, well be interpreted to mean that the direction to proceed to dispose of the proceeding under Sec 145 in conformity with the decision of the civil court applies only where the Magistrate proceeds to dispose of the proceeding and does not compel him to proceed with the proceeding when he would have no jurisdiction to proceed in view of the non existence of a dispute relating to certain lands which where the subject-matter of the proceeding. 13. The matter may be looked at from another point of view also. 13. The matter may be looked at from another point of view also. As my learned brother has pointed out, if during the pendency of the proceeding a court of competent jurisdiction has decided the dispute authoritively and finally and the decision of the civil court upon a reference under Sec.146 is contrary to that decision, if the Magistrate were compelled to dsspose of the proceeding in conformity with the decision of the civil court under Sec.146 his dicision would be in conflict with the decision of a court of competent jurisdiction. It must be remembered that the decisian as to possession under Sec.145 is subject to the decision by a court of competent jurisdiction and it is well settled that the magistrate ought to respect the decision of a civil court of competent jurisdiction. If the contention of the learned Advocate for the respondent is accepted, the aforesaid anomaly would arise As the words used in Sec.146 are capable, of bearing the interpretation that thedirection to proceed to dispose of the proceeding in conformity with the decision of the civil court applies only when he proceeds to dispose of the proceeding, such an interpretation, which results in an anomaly, must be rejected. I, therefore, hold that the provisions of Sec. (1b) of sec.146 of the old Code do not take away the power of the Magistrate to drop the proceeding, if he is satisfied that no dispute, i. e. , no bonafide dispute, relating to that land exists. 14. As my learned brother has pointed out, after the decision in the preemption proceeding under the Bihar land Reforms (Fixation of ceiling Area and acquisition of Surpluse Land) Act, 1961, hereinafter called the Ceiling Act, in favour of the petitioners in respect of S. P. nos.1360, 1361 and 2223 and the delivery of possession in favour of the petitioners of those lands, there can be no bona fide dispute relat,ng to possession of those lands I may just observe that the learned counsel for the respondents attempted to argue that as the lands had been attached in the proceeding under Sec.145, there could be no valid delivery of possession in favour of the petitioners. But that contention is clearly negatived by the bench decision of this Court in Mahendra Bhagat and others V/s. Bacha Pandayand others (1959 Patna Law Reports 21), and after his attention was drawn to this decision, Mr. Nagendra Roy, the learned Advocate for the respondent, abandoned that contention. 15. It is well settled that when a dispute relating to a land had been finally decided by a competent civil court and delivery of possession in favour of one of the parties to the proceeding under Sec.145, Code of Criminal procedure has been effected, the legal and proper order that the Magistrate should pass is one cancelling the preliminary order under Sec.145, Criminal Procedure code and dropping the proceeding in respect of the aforesaid land as no bona fide dispute relating to that land exists. See the bench decision of our Court in mahendra Bhagats case (supra.) See also the decisions o f the Hyderabad High court and the Mysore High Court in the case of Tekchand V/s. Sabir Husain air 1955 Hydrabad 65 (FB) and in the case of Laxmana Subrao Patil and others V/s. Smt. Bhagubai w/o Subrao Patil (1963) 1 Cr. LJ 697, respectively. It makes no difference in principle whether the dispute is resolved by and delivery of possession effected in pursuance of the decision of a competent civil court or by revenue court, if the revenue court has, as in pre-emption proceedings under the Ceiling Act; jurisdiction to decide the dispute finally. In either case no bona fide dispute relating to the particular land exists after the decision. Application partly allowed.