Akal Mahton and Others vs Mahabir Mahton

Kulwant Sahay, J.—The petitioners were the first party in a proceeding u/s 144 of the Code of Criminal Procedure. The facts set out in the application for revision filed in this Court are shortly these: One Lachman Lohar and Sahdeo Lohar had a holding of one acre thirteen decimals. On the 14th April, 1920 these two persons soli their holding to Doma Gopa and Ram Keshwar who purchased the holding half and half and it is alleged that they paid off an incumbrance upon this property created by their vendors. On the 3rd June, 1920 Doma sold his half share to Akal Mahto who is the petitioner No. 1 in this case. It is alleged that the mortgage bond paid off by Doma and Rarnkeshwar was handed over to Akal and the original deed dated the 14th April 1920 remained with Rarnkeshwar. Rarnkeshwar is alleged to have4oftt the original-deed and on the 18th May 1922 he lodged an information before the Police stating the fact of the loss and asking the Police to enquire into the matter. On the 14th December 1922 Rarnkeshwar sold his half share in the holding to two persons, Bhusa Mahto and Bhadai Sah who are the petitioners Nos. 2 and 3 in the present application. On the 25th May 1923, the opposite party Mahabir Mahto served a notice on Doma stating that he had come to know that he was going to transfer the property and forbade him from doing so on the allegation that Doma was really the Farziilar of Mahabir Mahto. As a matter of fact Doma hid already sold his share to Akal Mahto on the 3rd June, 1920 and the notice was given by Mahabir to Doma about three years after Doma had already sold his share on the 15th June 1923. The Police submitted a report before the Sub divisional Magistrate of Dinapore stating that there was a likelihood of a breach of the peace relating to the possession of the land in dispute and recommending proceedings u/s 143 of the Code of Criminal Procedure. On the 2nd July, 1923, the petitioners filed what is stated in the order-sheet a "protest petition", whereupon on the same date, the learned Sub-divisional Magistrate made an order for issue of notice u/s 144 of the Code of Criminal Procedure on both parties not to create a breach of the peace in respect of the land and fixed the 13th July for showing cause. On the 13th July, without taking any evidence, the learned Sub-divisional Magistrate made the order absolute as against the first party who are the petitioners in this case. Against this order the petitioners came up in revision to this Court.

Now, the learned Sub-divisional Magistrate states that he was absolutely convinced that the first party''s claim was really frivolous and was based simply on the fact that their names are entered as farzidars in the sale deed dated the 14th April, 1920. The learned Sub-divisional Magistrate seems to be under a complete misapprehension on this point. The deed of sale of the 14th April 1920 stands in the, name of Doma and Rarnkeshwar. The names of the first party are not to be found in this deed and it is stated that there is no mention in this deed about the purchasers being farzidars for anybody else. Then the learned Sub-divisional Magistrate says. "There have been two sale-deeds of later dates purporting to retransfer the property and one of those is by the first party dated December, 1922". Here again the learned Magistrate appears to be under some misapprehension. The deed of December 1922, is the one by which Ramkeshwar sold his half share to Bhusa and Bhadai who were the first party in the present proceeding. There was no sale-deed by the first party; it was in favour of the first party, arid it was not a retransfer, but a conveyance by Ramkeshwar and Doma to the present petitioners. The learned Magistrate then proceeds and observes that the claim of the first party is that he lost the deed of sale of April 1920 and that the second party is falsely claiming on the strength of it. Here again the learned Sub-divisional Magistrate is in error. The first party never alleged that he had lost the deed of sale. The deed of sale was alleged to have been lost by Ramkeshwar, the vendor of the petitioners Nos. 2 and 3 and he is alleged to have lodged an information of the loss before the Police in May, 1922.

The learned Magistrate then says that he cannot believe that a party would steal a document which did not contain his name and claim on the strength of it, and he says that the converse is much more probable. Instances are not infrequent when documents of title have been lost and have been found to be in possession of persons who have really no title to the property covered by them, and this matter can only be finally determined after taking evidence adduced by the parties.

Now, this is the whole of the judgment of the learned Magistrate, and upon these facts he held that possession was undoubtedly with the second party and he made the notice absolute for two months as against the first party.

It has been contended by the learned Vakil for the petitioners that the order made by the learned Sub-divisional Magistrate is without jurisdiction. He says u/s 144 of the Cr.P.C. the Magistrate had no jurisdiction to make any order unless and until he was satisfied that there was apprehension of a breach of the peace and that immediate prevention or speedy remedy was desirable. There is no indication in the judgment that such circumstances existed in the present case. On the other hand the learned Vakil relies upon the Police report which recommended proceedings u/s 145 of the Code of Criminal Procedure and not u/s 144. He relied on the case of Karoo Lal Sajawal v. Shayam Lal [1905] 32 Cal. 935 for the proposition that before a Magistrate can take action u/s 144 of the Code of Criminal Procedure he must be of opinion that immediate prevention or speedy remedy is necessary, and when he has made up his mind that it is so, he must state the material facts in the order, and where a Magistrate passed an order directing the second party not to interfere with the first party in the cultivation of his Khas land or the collection of rents from his under-tenants and it did not appear from the proceedings that he was of opinion that immediate prevention or speedy remedy was necessary and the order made did not state the material facts of the case, it was held that the order was bad and it was set aside. He further relies on the case of Lachman Ram v. Dhiru Dusarth [1918] Cri.L.J. 1002 where Mr. Justice Mullick lays it down as a proposition of law that Section 144 of the Code of Criminal Procedure is applicable only to temporary orders in urgent cases of nuisance or apprehended danger; it is not applicable in cases where there is a dispute as to land for the settlement of which Section 195 provides the proper remedy. In my opinion the learned Vakil is right in his contention and the authorities cited by him support his contention.

From the order of the learned Magistrate it is not at all clear that the case was of such an urgency as to require action under Section, 144 of the Code of Criminal Procedure* More-ever, the learned Magistrate really makes an order as regards possession, and he holds that the second party is undoubtedly in possession without taking any evidence on the point and without considering the documents produced or which might have been produced by the parties if a proceeding u/s 145 had been initiated. I am therefore of opinion that the order of the learned Sub-divisional Magistrate cannot stand and it must be set aside. If there is any apprehension of a breach of the peace it will be open to him to initiate proceedings u/s 145 of the Code.

A preliminary objection is taken by Mr. Shiveshwar Dayal who appears for the opposite party that the application to this Court is not maintainable as under Clause (4) of Section 144 Cr.P.C. it was incumbent on the petitioners to go in the first instance before the District Magistrate before coming up in revision to this Court. No doubt the District Magistrate had full power to rescind or alter the order made by the Sub-divisional Magistrate, and the ordinary practice in this Court is that in cases of orders made u/s 144 Cr.P.C. the parties against whom the order is made should in the first instance approach the District Magistrate before coming up to this Court. Here, however, the learned Vakil for the petitioners argues that the order of the learned Sub-divisional Magistrate is wholly without jurisdiction. In the Full Bench case of Shebalak Singh v. Kamaruidin Mandal 1922 Pat. 435 it was argued that the order complained of in that case as originally made by the Deputy Magistrate was one which was outside the scope of Section 144 Clause (1) and was made without jurisdiction and that in such circumstances it should not be treated as an order made under that Section at all, but as an unauthorised order made without jurisdiction and that this Court should exercise its power of Superintendence u/s 107 of the Government of India Act and set aside the order and in considering this argument His Lordship the Chief Justice observed as follows: "No doubt this Court has interfered and exercised its jurisdiction in such cases and if it could be shown that the order in the present case did not come within the powers conferred by the first Clause of Section 144, we should be entitled to interfere and set it aside." Similar observations were made by the other learned Judges who composed the Full Bench, and as in the present case it has been found that the order made was without jurisdiction, the preliminary objection cannot prevail. The result is that the order of the learned Sub-divisional Magistrate is set aside.