Upendra Kuar v. Prahalad Prasad Singh — 1987 DIGILAW 350 (PAT)

JUDGMENT S. N. Jha, J. This application has been filed for setting aside a final order dated 3.10.1986 passed in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter-referred to as "the Code"). 2. The dispute relates to plot nos. 1357 and 1358 of Khata No. 146 having total area or land measuring 7 Bighas 3 Kathas 1 Dhur situate in village-Deokall, P. S. Mohammadpur in the district of Gopalganj. The second party is the petitioner before this Court. 3. The facts which led to the filing of this application, in short, are that on the basis of a police report, a proceeding under Section 144 of the Code was initiated which subsequently was converted into proceeding under Section 145 of the Code. 4. The petitioners claimed the disputed plots which is a tank and its Bhinda on the basis of two sate deeds executed in the year 1970 and 1975 by the original owner and on the basis of the aforesaid sale-deeds, they came in possession of the lands in dispute. According to the case of the petitioners, these two survey plots have been recorded in the name of Ramadhar Dubey and Mukhlal Dubey etc. in the record of rights. The heirs of recorded tenant Jhakkar Dubey, Nakha Dubey and others used to pay rent to the Ex-landlord and after the abolition of the zamindari under the Bihar Land Reforms Act, they were paying rent to the State of Bihar. 5. Further case of the petitioners is that in 1970 by two registered sale deeds Satya Narain Dubey @ Master Dubey sold the property to the members of the second party (petitioners). In the year 1975 Tarkeshwar Dubey also executed his share to the members of the second party and thus, the rights of all the heirs, namely, Satya Narain Dubey and Tarkeshwar Dubey were purchased by the members of the second party and on the basis of these two aforesaid sale-deeds they claimed exclusive possession over the disputed land. According to them, their names were also mutated in the serista of the State of Bihar and they paid rents to the State, in token of which the State of Bihar also granted rent receipts. After acquiring these properties the members of second party have been rearing fish in the pond for, their own consumption and for sale. 6. According to them, their names were also mutated in the serista of the State of Bihar and they paid rents to the State, in token of which the State of Bihar also granted rent receipts. After acquiring these properties the members of second party have been rearing fish in the pond for, their own consumption and for sale. 6. According to the case of the opposite party (first party), the females of the villagers of village-Hakkam, and Deokali are performing 'Chhath' over the Bhinda of the tank and there are large number of srispotas on the Bhinda in which the females performed their puja after taking bath in the Pokhra. It is also claimed that on the western side of the Bhinda, there is one 'Idagah' of Mohammadans of village-Bakkam, where they hold prayer every year. According to them, the said tank is used by general public and nobody has got any exclusive right over the tank. The villagers, the general public of village Bakkam and Deokali, are performing 'Chhoth' festival and prayer on the 'Idagah' situate on the Bhinda of the said tank since time immemorial and any execution of the sale-deeds in favour of the members of the second party are forged and not operative. According to their case, they also used the water for drinking purpose and also for drinking of their cattle. The member of the second party never came in possession over the land. 7. In pursuance of the notice issued in the said proceeding, both parties appeared and filed their show cause and they also adduced evidence in support of their claim. Some documents were also filed on behalf of the petitioners (second party) in the said proceeding. Annexure-2 appended to this application is the record of the survey khatian. The survey khatian shows that plot nos. 1357 and 1358 of khata no. 146 has been recorded as Bhinda and Pokhar respectively. Both these plots are recorded in the name of Ramdbari Dubey son of Manu Dubey, Mukhlal Dubey son of Raj Kumar Dubey and Jhakkar Dubey son of Acharya Dubey with equal shares. In the remark column certain trees are also recorded in possession of Ram Lal Singh son of Mohan Singh, Nageshwar Singh son of Kali Charna Singh and Britdar. 8. In the remark column certain trees are also recorded in possession of Ram Lal Singh son of Mohan Singh, Nageshwar Singh son of Kali Charna Singh and Britdar. 8. The learned Magistrate on a careful consideration of the evidences and documents available on the record declared the possession of the First party-opposite party that is, general public over the disputed lauds including the members of the second party i.e. petitioners. It was further held that the members of the second party have got no khas possession over the disputed land. Hence this application. 9. Mr. S. C. Ghosh, Learned counsel appearing on behalf of the petitioners has contended that findings of the learned Magistrate are not based on the materials available on the record. It was also contended that in an inquiry under Section 145 of the Code, the Magistrate is bound to declare the possession of a party and the joint possession declared by him is not sustainable in law. 10. On the other hand, it was contended on behalf of the opposite party that the impugned order passed by the learned Magistrate clearly indicates application of mind to the material evidence on the record and, therefore, there is no infirmity or illegality in the order of the Magistrate which could be validly interfered with in revision application before this Court. Since the Magistrate bas decided the proceeding on the strength of oral and documentary evidence adduced on behalf of the parties in respect of their respective case after going through and discussing the substance therein, there is no scope to interfere with the order of the Magistrate. It was further contended that unless there is perversity in the impugned order, this Court will not upset the finding of the court below. 11. Before dealing with the points raised by the rival parties, I may point out here that the second party (petitioners) had filed an application for conversion of the proceeding under Section 145 to a proceeding under Section 147 of the Code, which was rejected by the court below by its order dated 28.7.1984 against which the petitioners had come up before this Court in Cr. Misc. No. 8039 of 1984 for quashing the said order but that was dismissed in limine by order of this Court dated 18.8.1984 in the said Cr. Misc. No. 8039 of 19~4. Misc. No. 8039 of 1984 for quashing the said order but that was dismissed in limine by order of this Court dated 18.8.1984 in the said Cr. Misc. No. 8039 of 19~4. In that view of the matter, now it cannot be argued that the proceeding should have been converted into a proceeding under Section 147 of the Code as opposite party are claiming the 'disputed land on the basis of their customary rights. 12. It is the initial duty of the Magistrate in a proceeding under Section 145 of the Code to find out what parties are concerned in the dispute that has arisen and he should also determine which parties are in actual possession. It was held In several cases that the words "parties concerned" in this Section mean not only the persons who were actually disputing but also the persons interested in or claiming a right to the property in dispute. 13. The inquiry under sub-section (4) of Section 145 of the Code is limited only to the question as to who is in possession of the land in fact on the date of order irrespective of the right and title of the parties. The questions of title are of little importance under this Section except in so far as they may be available to show who was in actual physical possession of the land at the time when the proceedings are taken. 14. The main purpose of a proceeding under Section 145 of the Code is to prevent a threatened breach of peace in respect of the land. It is in the nature of a summary proceeding where a Magistrate is required only to give a tentative decision about the actual possession which is always subject to the final adjudication neither in respect of title or right to possession by the civil court. The decision of the Magistrate as to right to possession is not to be upset in revision unless the decision is found to be perverse or illegal. A wrong finding is not necessarily a perverse finding. A finding cannot be said to be perverse merely because it is possible to take a different view on the evidence. A perverse finding is not only against the weight of evidence but is altogether against the• evidence itself. A wrong finding is not necessarily a perverse finding. A finding cannot be said to be perverse merely because it is possible to take a different view on the evidence. A perverse finding is not only against the weight of evidence but is altogether against the• evidence itself. In the instant case the Magistrate has found upon consideration of the evidence oral and documentary adduced in this case that opposite party i.e. general public are in actual possession of the land. 15. An order under Section 145 of the Code is passed as a result of summary proceeding bout the possession of the parties and the aggrieved parties can always have recourse to the Civil Court to establish his right and title. In the instant case the c1aim of the second party petitioners is based upon two sale deeds executed in the year 1970 and 1975. If they have got any grievance they may seek remedies in the Civil Court to establish their right and tide. 16. It was contended on behalf of the petitioner that they have purchased the lands in dispute from the heirs of the recorded tenant whose name are recorded in the record of rights. Mr. Ghosh contended that with Le presumption of correctness which attaches to record of rights by law, it is undoubtedly a most important piece of evidence and the learned Magistrate ought to have relied upon the records of rights. Reliance has been placed on a decision in the case of Tufani Lal and others V. Mt. Bibi Umatul Rasool, A.I.R. 1924 Patna 765. It no doubt true that the presumption of correctness of the record of rights is there but the entries in it may be rebut table by subsequent decrees of the civil court and the delivery of possession that followed them. In Turani Lal's case (supra), it has been held that "the record of rights is important evidence but it is rebut table by subsequent civil court decrees". 17. In S. M. Yaqub and others V. T. N. Basu and another, A.I.R. 1949 Patna page 146 (Special Bench) it has been held, that "in a proceeding under Section 145, the Magistrate is concerned only with the question of actual possession, and he must determine that question irrespective of the right to possession". 17. In S. M. Yaqub and others V. T. N. Basu and another, A.I.R. 1949 Patna page 146 (Special Bench) it has been held, that "in a proceeding under Section 145, the Magistrate is concerned only with the question of actual possession, and he must determine that question irrespective of the right to possession". In that view of the matter any order passed under Section 145 of the Code is passed as a result of summary proceeding about the possession of the parties and the aggrieved parties can always have recourse to the civil court to establish his right and title. As I have already indicated above, title is of little importance under this Section except in so far as they may be available to show who was in actual physical possession of the land at the time when the proceedings are initiated. 18. From the perusal of the impugned order, I am not in a position to hold that the Magistrate has not considered the evidence available on the record and the decision of the Magistrate as to right to Possession cannot be upset because in my view the decision dose not suffer from perversity and illegality. 19. For the reasons stated above, I do not find any merit in this application and the application is dismissed.