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Gauhati High Court · body

2010 DIGILAW 169 (GAU)

Biren Changmai v. Golap Changmai and Ors.

2010-03-04

H.N.SARMA

body2010
1. The revisional jurisdiction coupled with inherent and supervisory jurisdiction is prayed to be exercised by this court challenging the impugned order dated 20.8.2009 passed by the learned Addl. District Magistrate, Sibsagar in Misc. Case No. 153/2006 under section 145, Cr. PC. 2. I have heard Mr. A.C. Buragohain, learned counsel appearing for the first party/petitioner and Mr. P. Bora, learned counsel appearing for the second party/respondents. 3. The 1st party/petitioner initiated a proceeding under section 145 Cr. PC against the respondents praying for declaration of his possession ever an area of land measuring 6 bighas, 2 kathas and 2 lechas which was registered as Miscellaneous Case No. 125/2006 in the court of the learned Addl. District Magistrate, Sivasagar. During the course of the proceeding, the disputed land which is covered by P.P. Patta No. 73 of Changmai Gaon, Betbari Mouza in the district of Sivasagar was kept attached as per order of the learned Magistrate. The second party contested the proceeding by filing written statement. However, at subsequent stage they having defaulted to appear, the case proceeded ex parte against them and the learned Magistrate declared the possession of the disputed land in favour of the petitioner, on 18.2.2009. The aforesaid order was challenged before the learned Sessions Judge, Sivasagar, in Crl. Revision No. 8(l)/88 and the learned Sessions Judge vide Judgment and Order dated 6.8.2008, setting aside the impugned order dated 18.2.2008, remanded the matter back again to the learned Magistrate for disposal of the proceeding in accordance with law allowing the second party to adduce their evidence subject to cross - examination by the first party. After remand of the matter, the learned Magistrate instead of complying with the directions of the learned revisional court virtually closed the proceeding directing the parties to approach the "higher competent authority" for deciding their right, title and possession, inasmuch as, according to the learned magistrate both the parties are brothers and they have right of inheritance over the disputed land and are fighting for right, title and inheritance over the disputed land, vide his judgment and order dated 20.8.2009, which is the subject matter of scrutiny in this revision petition. 4. Mr. 4. Mr. Buragohain, learned counsel appearing for the petitioner submits that after remand of the matter by the learned Sessions Judge to be decided on merit by the learned magistrate, it is incumbent upon the learned Magistrate to comply with the said directions and decide the case on merit, but instead of doing so the learned Magistrate taking into consideration of certain extraneous circumstances closed the case directing the parties to approach the "higher competent authority" for settlement of the dispute, which is not permissible under the law. Learned counsel further contends that in passing the impugned order, the learned Magistrate totally ignored the purpose and scope of the proceeding under section 145 and illegally passed the impugned order, apart from ignoring the directions of the learned Sessions Judge. In support of his submission, the learned counsel has referred to the decision of the Apex Court Santi Kumar Panda v. Sakuntala Devi, 2004 (1) SCC 438 . 5. Per contra, Mr. P. Bora, learned counsel appearing for the respondent/second party submits that in view of the prayer made in this petition, the petitioner is not entitled to get any relief, inasmuch as, the order dated 18.2.2008 passed on earlier occasion has already been set aside by the revisional court. The learned counsel further submits that by passing the impugned order the proceeding itself has not been finally terminated and adjudication of the matter is still awaiting. However, on the merit of the order, the learned counsel finds it extremely difficult to support when the same is examined under the touch stone of the provisions of section 145, Cr. PC. 6. The submissions of the learned counsel received due attention of the court. 7. Admittedly, the proceeding in question registered as Miscellaneous Case No. 153/06 is a proceeding under section 145, Cr. PC initiated by the petitioner as 1st party against the respondents. It is not disputed at the bar, that both the parties are brothers in relation descended from the common ancestor. Upon being satisfied with the existence of a dispute likely to cause breach of peace concerning the disputed land which falls within the local jurisdiction of the learned Magistrate, an order for drawing up the proceeding was passed directing the parties to attend his court and to submit their written statement in respect of their respective claim over the disputed land vide order dated 30.12.2006. In the aforesaid order the learned Magistrate also recorded the ground of his satisfaction about the existence of breach of peace relating to the possession of the disputed land. On being notified, the second party duly appeared and contested the proceeding by filing their written statement. However, they having failed to appear at subsequent stage, the matter was disposed of ex parte against them vide order dated 18.2.2008 which was set aside in Crl. Revision No. 8(1) of 1988 by the learned Sessions Judge, Sivasagar and remanded the matter back as indicated above. After remand of the matter the learned Magistrate, instead of deciding the dispute directed the parties to approach the "higher competent authority" for deciding their right, title and possession over the disputed land. 8. Sub - section 1 of section 145, Cr. PC inter alia provides that written statement required to be filed by the respective parties is to be in respect of their respective claims with regard to the fact of actual possession of the subject matter of dispute. Sub - section (4) of section 145 mandates that the Magistrate shall then without any reference on the merit of the claim of the parties as regards their right of possession of the subject of dispute, peruse the written statement so filed, hear the parties, receive all such evidence that may be produced by them and may call for further evidence if he thinks necessary and then decide on the basis of the materials so produced whether any end/or which of the parties was in possession of the disputed and on the date of the order made by him under sub - section (1) of section 145, Cr. PC or within two months next before the date on which the information was received by the Magistrate or after that date and before his order under sub - section (1) and then declare possession of the disputed land in favour of such party. Sub - section 5 of section 145 of the Cr. PC or within two months next before the date on which the information was received by the Magistrate or after that date and before his order under sub - section (1) and then declare possession of the disputed land in favour of such party. Sub - section 5 of section 145 of the Cr. PC provides that any party to the proceeding or any interested party has got right to show that no dispute on the basis of which the proceeding was drawn up exists or existed and upon such showing the Magistrate is to cancel his order and further proceeding is to be stayed subject to such cancellation, the order of the Magistrate under sub - section (1) shall be final. Sub - section 6 of the Cr. PC provides that if the Magistrate decides that one of the parties was or should be treated as being in such possession of the disputed property, he shall issue order declaring such party to be entitled to possession thereof until evicted under the due process of law. 9. In the case of Santi Kumar Panda (supra) the Apex Court had the occasion to deal with the provision and scope of section 145 of the Cr. PC. The Apex Court at para 10 of the said case held as follows. "Possession is nine points in law. One purpose of the enforcement of the law is to maintain peace and order in society. The disputes relating to property should be settled in a civilized manner by having recourse to law and not by taking the law I own hands by members of society. A dispute relating to any land, etc., as defined in sub - section (2) of section 145 having arisen, causing a likelihood of a breach of the peace. Section 145 of the Code authorizes the Executive Magistrate to take cognizance of the dispute and settle the same by holding an enquiry into possession as distinguished from right to possession or title. The proceedings under sections 145/146 of the Code have been held to be quasi - civil, quasi - criminal in nature or an executive or police action. Section 145 of the Code authorizes the Executive Magistrate to take cognizance of the dispute and settle the same by holding an enquiry into possession as distinguished from right to possession or title. The proceedings under sections 145/146 of the Code have been held to be quasi - civil, quasi - criminal in nature or an executive or police action. The purpose of the provisions is to provide a speedy and summary remedy so as to prevent a breach of the peace by submitting the dispute to the Executive Magistrate for resolution as between the parties disputing the question of possession over the property. The Magistrate having taken cognizance of the dispute would confine himself to ascertaining which of the disputing parties was in possession by reference to the date of the preliminary order or within two months next before the said date, as referred to in the proviso to sub - section (4) of section 145 and maintain the status quo as to possession until the entitlement to possession was determined by a court, having competence to enter into adjudication of civil rights, which an Executive Magistrate cannot. The Executive Magistrate would not take cognizance of the dispute if it is referable only to ownership or right to possession and is not over possession simpliciter; so also the Executive Magistrate would refuse to interfere if there is no likelihood of breach of the peace of if the likelihood of breach of peace though existed at previous point of time, had ceased exist to exist by the time he was called upon to pronounce the final order so far as he was concerned." 10. Turning to the impugned order it is found that instead of deciding the dispute as regards who was in actual possession as required to be decided under sub - section (4) of section 145, Cr. PC the learned Magistrate directed the parties to approach "the higher competent authority" for settlement of their right, title and possession. The fact which prompted the learned Magistrate to pass the aforesaid direction is relationship between the parties, as according to him they were fighting for right, title and inheritance. PC the learned Magistrate directed the parties to approach "the higher competent authority" for settlement of their right, title and possession. The fact which prompted the learned Magistrate to pass the aforesaid direction is relationship between the parties, as according to him they were fighting for right, title and inheritance. However, the object and scope of section 145 is not to decide such dispute on the basis of such right but to decide only the possession and right of possession in respect of the subject of dispute as provided under section 145(1) and 4 of the Cr. PC. 11. In passing the impugned order the learned Magistrate also ignored the directions issued by the learned revisional court in Crl. Revision No. 8(1)71988 and short - circuited the matter that too without deciding on the merit of the dispute. Such a course is not permissible under the provisions of section 145, Cr. PC. Once the proceeding is drawn up under section 145, Cr. PC, the court may drop the proceeding for want of breach of peace as provided under sub - section 145(2) and (4) and in the absence of such contingency the Magistrate is to decide as to who was in actual physical possession on the date of the application or within two months prior to that. 12. In view of the above discussions, the impugned order is interfered with and is set aside and quashed. The learned Magistrate is directed to decide the case afresh in accordance with law and in terms of the directions issued in Crl. Rev. No. 8(1)708 as indicated above, complying with the requirement of section 145, Cr. PC. Since the proceeding is pending since 2006, the learned Magistrate is directed to make an endeavour to dispose the proceeding as expeditiously as possible. 13. Both the parties, as agreed, are directed to appear before the learned Magistrate on 5th of April, 2010 to receive further instructions from the learned Magistrate. 14. In the result, the petition stands allowed, but with directions as indicated above. 15. No costs.