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2006 DIGILAW 1179 (PAT)

Rabindra Nath Singh v. State Of Bihar

2006-12-04

AJAY KUMAR TRIPATHI

body2006
Judgment 1. Heard learned counsel for the parties. 2. The petitioner wants quashing of the order dated 23.11.2002 passed in a 145 proceeding under the Code of Criminal Procedure. The order in question has been passed by Shri U.R Singh, Executive Magistrate, Darbhanga in M.R. No. 534 of 1992/534 of 1995 in T.R. No. 20/ 02. The learned Magistrate has declared equal possession of 10 dhurs each on one katha land of Khata No. 126, Plot No. 427 in Village-Dekuli, Tikapatti, P.S.-Bahadurpur in the District of Darbhanga. 3. A written application dated 22.4.1995 was filed by the petitioner before the Officer Incharge, Bahadurpur Police Station stating therein that 16 katha 19 dhurs of land in Survey Plot No. 427 of Khata No. 126 situated in Village Dekuli in the district of Darbhanga was in his peaceful cultivating possession and the second party i.e. Opposite Party No. 2, armed with lathi, gadasa etc. started digging in about one katha of land for construction of a house in the western side. On protest by the first party i.e. the petitioner, they threatened to cause bodily harm, if not to kill him. Sub-Inspector of Police, Ram Niwas Singh on the basis of the aforesaid application held an enquiry and submitted a report dated 25.4.1995 to the Sub-Divisional Magistrate, Sadar, Darbhanga for initiating a proceeding under Sec.144 of the Code of Criminal Procedure against both the parties in respect of 1 katha of land from the west side of the Survey Plot No. 427. The Sub-Divisional Magistrate initiated 144 proceeding against both the parties and notices were issued. The petitioner (first party) on receipt of notice on 7.5.1995 appeared and filed his show-cause. He stated in the show-cause that out of the 16 kathas 19 dhurs of land only 1 katha of land from the west of Survey Plot in question was subject matter of the proceeding under Sec.144. This land alongwith some other land was auction purchased by one Nathu Singh Thakur on 11.9.1919 in Case No. 1106/1919 from the Court of Munsif 1st, Darbhanga. This Nathu Singh Thakur was the great grandfather of the petitioner. This land alongwith some other land was auction purchased by one Nathu Singh Thakur on 11.9.1919 in Case No. 1106/1919 from the Court of Munsif 1st, Darbhanga. This Nathu Singh Thakur was the great grandfather of the petitioner. Nathu Singh Thakur had two sons, Ram Julum Singh Thakur and Ram Bujhawan Singh Thakur and after family partition an area of 6 katha of Survey Plot No. 427 alongwith other land was allotted to the share of Ram Julum Singh Thakur, the balance area of 10 katha 19 dhurs of Survey Plot No. 427 alongwith other land was allotted to the share of Ram Bujhawan Singh Thakur. Ram Bujhawan Singh Thakur died leaving behind his widow and a minor son Biswambhar Singh. The widow on her behalf as well as the guardian of her minor son through a kewala dated 9.7.1935 sold the same with some other land in favour of Dhanusdhari Jha and Srikant Jha for consideration. Thereafter Ram Sagar Singh i.e. the father of the petitioner and Suresh Singh Thakur i.e. uncle of the petitioner purchased 3 bighas and 7 kathas of land including this 10 katha and 19 dhurs in which the present dispute has arisen by a kewala dated 18.11.1957 executed by Shrikant Jha. Ram Sagar Singh and Suresh Singh Thakur i.e. father and uncle of the petitioner respectively, came in possession over the land including this 10 katha and 19 dhurs of land. Therefore, the land in question was an ancestral land belonging to the petitioner and they are in possession. The petitioner further stated before the Magistrate that in a private amicable partition the petitioner got an area of 8 katha 9 & 1/2 dhurs out of the 16 kathas 19 dhurs of land in Survey Plot No. 427 from north and similarly the uncle of the petitioner, namely, Suresh Singh Thakur also got 8 kathas 19 & 1/2 dhurs from south. 4. After hearing the parties, the learned Sub-Divisional Magistrate, Darbhanga converted the proceeding of Sec.144 of the Code of Criminal Procedure into a proceeding under Sec.145 of the Code of Criminal Procedure. In this proceeding, the petitioner (first party) and opposite party no. 2 were second party. In the 145 proceeding also the respective parties filed their show-cause, but subsequently the second party stopped doing pairvi and the proceeding was fixed for ex parte hearing. 5. In this proceeding, the petitioner (first party) and opposite party no. 2 were second party. In the 145 proceeding also the respective parties filed their show-cause, but subsequently the second party stopped doing pairvi and the proceeding was fixed for ex parte hearing. 5. It is stated that surprisingly before the date fixed for the ex parte hearing, opposite party no. 3 filed a petition on 3.2.2001 before the Court below to make him an intervenor. Strangely, the Court allowed this intervenor application. Since the opposite party no. 3 was nowhere a party to the proceeding as there was no dispute vis-a-vis him. The opposite party no. 3 in his written statement accepted the facts asserted by the petitioner. 6. The petitioner further states that even though there was no dispute with opposite party no. 3 in any manner with the disputed one katha of land of the Survey Plot No. 427, since the same fell in the share of the petitioner and not in the share of opposite party no. 3, this petitioner does not in any manner claims or wants to interfere with the possession of 8 kathas and 9 & 1/2 dhurs of land, which is the share of opposite party no. 3 in terms of the partition agreed between the parties much earlier. The necessary evidence was produced on behalf of and it is stated that the opposite party no. 3 has accepted the fact that out of the 16 katha 19 dhurs of Survey Plot No. 427 his share of 8 katha 9 & 1/2 dhur of land and that of the petitioner is an accepted position. However, he intentionally kept quite about the one katha of land on which initially 144 proceeding was initiated with Opposite Party No. 2 i.e. the second party. However, after hearing the parties the Magistrate, strangely, in his order dated 23.11.2002 passed an order allotting half of the share of one katha of land i.e. 10 dhurs to the petitioner and 10 dhurs to opposite party no. 3. This is despite taking note of the fact that witnesses produced on behalf of the petitioner have said that the disputed land was in peaceful possession of the petitioner and the possession of the same was sought to be disturbed by the second party and not opposite party no. 3. 3. This is despite taking note of the fact that witnesses produced on behalf of the petitioner have said that the disputed land was in peaceful possession of the petitioner and the possession of the same was sought to be disturbed by the second party and not opposite party no. 3. An anomalous situation was sought to be created by this order of the Magistrate. 7. The petitioner aggrieved by the said order moved the Court of 1st Additional Sessions Judge, Darbhanga, who vide his order dated 21.8.2004 dismissed the revision application without considering the fact that the dispute was only regarding one katha of land on which the opposite party no. 2 had tried to create law and order situation and they had withdrawn from the pairvi of the case under 145 proceeding. 8. The petitioner is, therefore, before this Court invoking the jurisdiction of this Court under Sec. 482 of the Code of Criminal Procedure. His contention before this Court is that there seems to be total lack of appreciation of mind by the Courts below, specially the Magistrate since the Magistrate had limited jurisdiction under Sec.145 of the Code of Criminal Procedure. He has exceeded his powers by dividing the land into equal shares of 10 dhurs between the parties. The learned Executive Magistrate has also not taken into consideration the evidence on record as well as the fact that the dispute was only over 1 katha of land falling within the possession of the petitioner and that too between him and opposite party no. 2 and there was no dispute with regard to land in question with opposite party no. 3. The title over the land, if at all, was an issue in the eyes of the Magistrate then it was not within his jurisdiction to decide the same. For that a title suit before a Court of competent jurisdiction was the only remedy. Strangely, opposite party no. 3, as is evident from the records does not dispute the factual possession. Only because the Magistrate allowed the intervention petition of opposite party no. 3 and despite him not disputing the stand of the petitioner, he divided/partitioned the land in question 50:50 between the two parties, when there was no occasion or power to do so. 9. When questioned about the legality of the order passed by the Magistrate, the counsel for opposite party no. 3 and despite him not disputing the stand of the petitioner, he divided/partitioned the land in question 50:50 between the two parties, when there was no occasion or power to do so. 9. When questioned about the legality of the order passed by the Magistrate, the counsel for opposite party no. 3 submitted that the order of the Magistrate stands by itself and it has to stand to the scrutiny of this Court on its own merit. On further being questioned about the factual position also he did not dispute the facts as narrated by the petitioner. 10. After hearing all the parties, having examined the records as well as the impugned order passed by the Executive Magistrate, Darbhanga, Shri UP. Singh, I am of the considered opinion that the learned Magistrate had exceeded his jurisdiction while exercising powers under Sec.145 of the Code of Criminal Procedure by dividing the land in question into half and granting possession of the same in favour of the petitioner as well as opposite party no. 3. The power exercised by the Executive Magistrate under Sec.145 of the Code of Criminal Procedure has been provided with the object of preventing breach of peace between the parties in matters relating to land or water. The power granted under Sec.145 of the Code of Criminal Procedure is only to see that peace exists. Whenever, a dispute relating to land or water is likely to cause a breach of peace within his local jurisdiction, he has to, prima facie, satisfy himself with regard to actual position of the subject under dispute. The provision under Sec.145 of the Code of Criminal Procedure does not in any manner authorise the Magistrate to decide the question of ownership, title or even going to the extent of partitioning the property for bringing about peace within his local jurisdiction. This power in this Courts opinion is vested in a Civil Court of competent jurisdiction and it is best left to the parties to get the matter adjudicated upon, if the necessity for the same does arise. 11. Strangely, the Executive Magistrate despite taking note of the facts and the evidence with regard to the claim of the petitioner and despite the fact that the opposite party no. 2, the original party to the dispute under Sec.144 as well as 145 had withdrawn from the case by stopping pairvi. 11. Strangely, the Executive Magistrate despite taking note of the facts and the evidence with regard to the claim of the petitioner and despite the fact that the opposite party no. 2, the original party to the dispute under Sec.144 as well as 145 had withdrawn from the case by stopping pairvi. Once the flash point which was likely to breach peace had disappeared there was no occasion for the Magistrate to divide the one katha of land and allot the same in favour of opposite party no. 3, who at no point of time ever denied or disputed the factual possession of the land as stated by the petitioner in his two show-causes/written statements before the authorities. The exercise of power by the Executive Magistrate vide order dated 23.11.2002 is not only bad on the ground of excess of jurisdiction but also a decision perverse and contrary to unrebutted evidence, which was available on record before him. 12. In view of the factual and legal position indicated and discussed above, this Court feels that the impugned order dated 23.11.2002 passed in M.R. No. 534 of 1992/534 of 1995 in T.R. No. 20/2002 cannot be upheld. It is accordingly quashed and the impugned order is set aside. 13. This application which is dismissed.