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1983 DIGILAW 281 (PAT)

Niwash Ojha v. Vishwanath Ojha

1983-10-04

A.K.SINHA

body1983
JUDGMENT : : Ashwini Kumar Sinha, J. Plaintiff in Title Suit No. 29 of 1981 filed before the 1st Munsif, Buxar, is the petitioner in the present revisional application. This application is directed against the ORDER :dated 1st October, 1982 passed by the Subordinate Judge, Buxar, in Miscellaneous Appeal No. 17/81, by which he has set aside the ORDER :dated 13.3.1981 passed by the 1st Munsif, Buxar. By ORDER :dated 13.3.1981 the learned 1st Munsif, Buxar ORDER :ed that the Commissioner's report be forwarded to the Additional Chief Judicial Magistrate, Buxar, for cogginzance. 2. The plaintiff petitioner filed the title suit (T.S. no. 29/81) in the court of 1st Munsif, Buxar for declaration of title and for removal of encroachment as well as for delivery of possession after removing the alleged encroachment made by the defendants opposite party over the lands described in Schedule-I of the plaint. The alleged encroachment made by the defendents opposite 'party was shown in the sketch map given in Schedule II of the plaint. The plaintiff petitioner has also prayed for an injunction restraining the defendants not to make any further encroachment/construction over the plaintiff's land described in Schedule r. Shorn of other details, the plaintiff filed a petition for appointment of an Advocate Commissioner for local inspection on the grounds mentioned in that petition. By ORDER :dated 18.2.1981 an Advocate Commissioner was appointed by the court below for local inspection and the plaintiff was directed to deposit the fee which ORDER :was complied with by the plaintiff and one Shri Rama Kant Mishra was appointed as Commissioner to hold the local inspection and submit his report by 23.2.1981. Accordingly, a writ, with necessary papers, was issued to the Advocate Com. missioner on 19.2.1981. The learned Advocate Commissioner accordingly went to Mouza Kharha where the suit land situates and according to the petitioner he called the Chowkidar through plaintiff petitioner who Came and to whom the Advocate Commissioner explained his purpose for visit. According to the petitioner, the learned Advocate Commissioner asked the Chowkidar to inform the defendant/opposite party about his arrival and the purpose of his visit and also further directed the Chowkidar to be present at the spot. According to the petitioner the learned Advocate Commissioner went to the disputed land followed by the petitioner and his counsel and the learned Advocate Commissioner met a few persons at the sport. According to the petitioner the learned Advocate Commissioner went to the disputed land followed by the petitioner and his counsel and the learned Advocate Commissioner met a few persons at the sport. The learned Advocate Commissioner, according to the petitioner, explained the purpose of his visit to the defendants and requested the parties to co-operate with him in his work and then, according to the petitioner, he proceeded for work. 3. The petitioner's case is that the learned Advocate Commissioner was obstructed in his work by the defendants. The learned Advocate Commissioner, according to the petitioner tried to persuade the defendants not to obstruct as he was on duty but his all persuation went in vain and the defendants according to the petitioner, went to their house and carne with deadly weapons and the learned. Advocate Commissioner apprehended danger and suspended his work and left the place. 4. Accordingly, the learned Advocate Commissioner submitted his report stating that obstruction was caused by the defendants and no measurement could be made. The relevant extract of the learned Advocate Commissioner's report (which is Annexure 1 to the instant application) is as follow :- "After making this visual survey of the disputed land I was going to prepare a rough sketch map of the disputed land and then take necessary measurements as per the points for determination furnished to me along with the writ. Meanwhile all on a sudden the above named defendants after consultation among themselves became turbulent and desperate. I tried to persuade them for not causing any obstruction to my work, as I was duly bound to execute the writ, according to the direction of the court. The plaintiff Shri Niwas Ojha and his lawyer Shri Shivshankar Dubey also tried to appease which too went in vain, and they got more annoyed. Some other villagers, when I could not recognise and village Chaukidar also made there attempts but to no effect. In such hue and cry the defendants rushed into their house and came out armed with deadly weapons. I apprehended danger. Hence I suspended my further work and communicated it to the plaintiff's lawyer. I at once left the place along with Shri Sheo Shankar Dubey. I left the place at 3.20 P.M. leaving at spot Shri Niwas OJha, defendants and other persons who had gathered there by that time. I apprehended danger. Hence I suspended my further work and communicated it to the plaintiff's lawyer. I at once left the place along with Shri Sheo Shankar Dubey. I left the place at 3.20 P.M. leaving at spot Shri Niwas OJha, defendants and other persons who had gathered there by that time. Obstruction was caused to my work by the defendants, So I could not prepare the rough sketch map at the disputed land nor could I take measurements of the wall or the faundation. I am submitting my this report for your honour's consideration and passing proper ORDER :as your honaur thinks fit. Buxar Dt.24.2.81 Yours faithfully Rama Kant Mishra (Advocate) Pleader Commissioner' On the submission of the aforesaid report by the learned Advocate Commissioner the court below on 13.3.1981 passed the following ORDER : "13.3.81... I perused the Pleader Commissioner report. He was submitted that the obstruction was caused to his work by the defendants, so he could not prepare the rough sketch map of the disputed land nor he could take measurement of the wall of the foundation. I find that he has submitted that he was obstructed in his work so, I do hereby ORDER :that let the pleaders commissioners report be forwarded to the A.C.J.M., Buxar for cognizance. Plaintiff should file the copy of the pleader commissioner report which would be on record. Put up on 2.4.81 for further bearing and ORDER :. Sd/- B.B. Singh." Against the aforesaid ORDER :of the court below to the effect that the Pleader Commissioner's report be forwarded to the Additional Chief Judicial Magistrate, Buxar, for cognizance, the defendants preferred an appeal before the learned Subordinate Judge, Buxar and this was numbered as Miscellaneous Appeal No. 17/81. The learned Subordinate Judge by his ORDER :dated 1.10.1982 held that the ORDER :of the trial court forwarding the Commissioner's report to the Additional Chief Judicial Magistrate, Buxar, for cognizance was bad in law as it contravened the provisions of section 340 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). According to the lower appellate court the alleged offence fell within the provisions of section 195(1) (b) of the Code and hence under section 340 Of the Code, an enquiry was must before a complain was made in writing. On this ground alone the ORDER :of the trial court has been set aside. 5. According to the lower appellate court the alleged offence fell within the provisions of section 195(1) (b) of the Code and hence under section 340 Of the Code, an enquiry was must before a complain was made in writing. On this ground alone the ORDER :of the trial court has been set aside. 5. Section 195(1) (b) of the Code speaks of offence punishable under sections 193 to 196, 199, 200, 205 to 21l and 228 of the Indian. Penal Code, when such offence is alleged to have been committed in, or in relation to any proceeding in any court and section 340 of the Code specially refer to the offence mentioned under section 195(1)(b) of the Code and not this offence mentioned under section 195(1) (a) of the Code. It the alleged offence really fell under clause (b) of Sub-section (1) of Section 195 of the Code, then only the provisions of section 340 of the Code were applicable otherwise not. The present alleged offence is not an offence under any of the sections mentioned in section 195 (1) (b) of the Code. The nature of the offence that is alleged is an offence which falls within section 195(1) (a) of the Code and the learned counsel appearing for the defendants does not dispute this position. If the alleged offence falls under, section 195(1) (a), the provisions of section 340 of the Code is not at all attracted, and I hold that, in the instant 'case, the alleged offence falls under section 195(1)(a) of the Code. In that view of the matter, the view taken by the lower appellate court that the trial court did not follow the procedure as provided under section 340 of the Code is unwarranted in law and is wholly illegal. I further hold that the appeal by the detendants in the lower appellate court under section 341 of the Code was under a misconception. In that view of the matter, the ORDER :lower appellate court is set aside and that of the trial court, is restored. In the circumstances of the case, a, mentioned above, I hold that if the ORDER :of the lower appellate court is allowed to stand It will occasion failure of justice: 6. In the result, the application is allowed, but without costs. Application allowed.