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1989 DIGILAW 355 (PAT)

Bithal Prasad v. Bimaldeo Mukhiya

1989-09-26

B.N.SINHA

body1989
JUDGMENT B N. Sinha, J.- This application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') is directed against the order dated 22/29th September, 1984 passed by Sub-divisional Magistrate, Begusarai initiating a proceeding under section 145 of the Code in which the petitioners have been made first party and the opposite party has been made second party. 2. The said proceeding has been initiated in respect of 10 kathas and odd land appertaining to plot nos. 888, 889, 890, 891, 892, 893, 894, 895, 896 and 898 situated in village Ulao, P.S. & District-Begusarai. The grievance of the petitioners is that for these very lands a proceeding under section 145 of the Code had been initiated in 1966 between these petitioners as first party and Sri Chandra Chud Deo, the father of the Opposite party as second party and in this proceeding the possession of the first party was declared over the disputed land by order dated 25.9.1979 by the Sub-divisional Magistrate, Begusarai. Against this order the second party in that proceeding went in revision before the Sessions Judge, Begusarai, but, t e same was dismissed in Criminal Revision No. 188 of 1979 by order dated 30th of May, 1981 and the order of the Sub-divisional Magistrate was upheld. It appears that thereafter the police submitted a report on 17.6.1981 to the Sub-divisional Magistrate, Beguarai apprehending breach of place in respect of those very plots of land between these petitioners and the O.P. and on the basis thereof a proceeding under section 144 of the Cone was initiated by the Sub-divisional Magistrate on that very date against these petitioners as first party and the O.P. to this application as second party. Petitioners med a petition in the said proceeding under section 144 of the Code for dropping the proceeding as the question of possession has already been decided in the previous proceeding under section 145 of the Code. The Opposite party also filed show cause stating that he came in possession of the disputed land in the year 1957 by virtue of partition between him and his father and since then he has been coming in possession thereof. The learned Sub-divisional Magistrate, however, by his order dated 18th of July, 1981 converted the proceeding under section 144 of the Code into one under section 145 of the Code. The learned Sub-divisional Magistrate, however, by his order dated 18th of July, 1981 converted the proceeding under section 144 of the Code into one under section 145 of the Code. Against this order the petitioners moved the Hon'ble Court in Criminal Miscellaneous No. 4687 of 1981 stating that the proceeding under section 144 was converted under section 145 of the Code without giving an opportunity to the petitioners of being heard on their petition for dropping the proceeding. The High Court by Its order dated 6th January, 1983 allowed the application of petitioners in Criminal Misc. No. 4687 of 1981, set aside the impugned order and remanded the matter to the learned Magistrate for deciding as to whether the proceeding under section 144 of the Code could be converted under section 145 of the Code or not after giving opportunity to the parties to the proceeding of being heard. After remand the learned Sub-divisional Magistrate heard the parties and by his order dated 22/29th September, 1984 has drawn up a proceeding under section 145 of the Code which is the impugned order. 3. It has been submitted by the learned counsel for the petitioners that once a proceeding under section 145 of the Code was decided in favour of these petitioners and against the father of the Opposite party, second proceeding in respect of those very lands is illegal and should not be allowed to proceed and the un-successful party in the previous proceeding should not be allowed to disturb the possession of the party who has been declared in possession of the land in proceeding. 4. Reliance was placed by the learned counsel for the petitioners on a single Judge decision of this Court in the case of Radha Krishan Pd. Sao and Lal Gopal Bose and two others reported in 1968 P.L.J.R. 165. 5. Learned counsel for the O. P. on the other hand has submitted that a previous proceeding under section 145 of the Code in respect of the same land will not bar a subsequent proceeding in respect of those very lands, if it is not between the same parties and reliance has been placed on a Single Judge decision of this Court in the case of Jehal Yadav and three others v. Ramawtar Prasad Nonia and five others reported in 1977 B.B.C.J. 179. 6. 6. Order under section 145 of the Code declaring the possession of party to the proceeding over the land in dispute is not a judgment in rem in favoar of the parties in whose favour possession was declared. I am fortified in my view by a Bench decision of this Court as early as in 1929 reported in A.I.R. 1929 Patna 505. Similar view has been taken in the case of Botterny Mandal and others v. Ram pas Mandal and others reported in 1979 Bihar Law Judgments 640-a Single Judge judgment, in which it has been held that the order under section 145 of the Code is valid so far as party actually before the Magistrate are concerned and the persons who were not parties in the proceeding, though they may be necessary party to the proceeding will not be bound by the order in the proceeding. 7. In the present case, admittedly, the Opposite party was not a party to the previous proceeding. In the case of Radha Krishna Prasad Das (1968 P.L.J.R. 165) the earlier proceeding under section 145 of the Code was between the petitioner of that case and the vendor of the Opposite party and thereafter a fresh proceeding within 18 months of that order in respect of the same subject matter was initiated by the Magistrate between the petitioner and the Opposite party and in this situation it was held that Opposite party being purchaser subsequent to that order, they are as good as party to the previous proceeding and, therefore, initiation of fresh proceeding under section 145 of the Code in respect of the same subject matter was set aside. But in the present case, the opposite party is not claiming possession by virtue of interest derived from his father, subsequent to the date of the order in the previous proceeding. The case of the Opposite party is that he got the land in proceeding in question in partition on the basis of a decree passed on the basis of a compromise petition in Title suit no. 23 of 1956 by the Court of Sub-Judge, Begusarai on 3.4.1957. The order in the previous proceeding u/s 145 of the Code between the petitioners and the father of the O.P. has been annexed as Annexure-2 to this application. 23 of 1956 by the Court of Sub-Judge, Begusarai on 3.4.1957. The order in the previous proceeding u/s 145 of the Code between the petitioners and the father of the O.P. has been annexed as Annexure-2 to this application. In that proceeding as it appears from the order (Annexure-2), the certified copy of the partition decree of the court of Sub-Judge, Begusarai in Title Suit no. 23 of 1956 was filed and it has been mentioned in that order dated 25.9.1979 that the compromise petition was accepted on 3.4.1957 and the father of the Opposite party accepted in that compromise petition that the lands in proceeding exclusively fell in the share of his son, i.e., the opposite party to this application. 8. On the basis of this partition decree the opposite party is claiming possession since before the initiation of the previous proceeding under section 145 of the Code. In this situation he was a necessary party to the previous proceeding. But, if he was not made patty to that proceeding, the order in favour of the petitioners in that proceeding cannot be binding for the Opposite party. 9. It has been observed by a Full Bench of this Court in Parmeshwar Singh v. Kailash Pati & others (A.I.R. 1916 Patna 292) that Judges have at times attempted to lay down a hard and fast rule to the effect that a Magistrate in a proceeding under section 145 of the Criminal Procedure Code must give effect to a recent decision or proceeding of a Civil or Criminal Court, but, no such rule can be laid down. Relying on this Full Bench decision it has been held by a Single Judge decision of this Court in Jehal Yadav & others (1977 BB.C.J. 179) relied upon by the learned counsel for the Opposite party that no hard and fast rule can be laid down that a Magistrate in a proceeding under section 145 of the Code must give effect to a recent decision or proceeding of Civil and Criminal Court. 10. 10. On discussion of the facts and circumstances of the case and on the basis of the principle laid down by this Court in different decisions referred to above, I find and hold that merely because recently in a proceeding under section 145 of the Code the possession of the petitioners was declared over the land in question it cannot bar initiation of a fresh proceeding under section 145 of the Code if on the police report the Sub-divisional Magistrate was satisfied that there were grounds for initiation of such proceeding, if it is not between the same parties. The likelihood of the breach of peace is sufficient to give the Magistrate jurisdiction under section 145 of the Code to initiate a proceeding under that section. Of course, the Magistrate will take into consideration the orders passed in a previous proceeding under section 145 of the Code as piece of evidence to which the Sub divisional Magistrate will attach due weight. 11. Hence, I find no merit in this application and the application is dismissed. The parties will bear their own cost.