Ata Mohammad vs Tulli alias Niayamatullah and Others

N.N. Sharma, J.—This revision is directed against order dated 31-12-1982 recorded by Sri. Shushil Kumar, learned Sub-Divisional Magistrate Bindki, district Fatehpur in Case No. 30 of 1981 u/s 145 Code of Criminal Procedure rejecting the case of revisionist and releasing the attached crop and holding in favour of Tulli opposite party.

These proceedings were initiated on the application by the revisionist u/s 145 Code of Criminal Procedure with the allegation that he got plot No. 714 area 14 biahas 10 biswas of village Gaura and plot No. 56 area 1 bigha, 4 biswas and 15 biswansis of village Gopalpur from his maternal grand-father Ghasitey and was in possession there of. Opposite parties, about ten in number, were unrully and disturbed his possession and there was apprehension of breach of peace.

The revisionist was surrounded on 16-12-1980 by opposite parties who had to save his life with difficulty-Opposite parties wanted to forcibly cut away his crop.

Learned S.D.M. invited report from police. Police report dated 29-3-1981 disclosed such apprehension of breach of peace. Learned Magistrate being satisfied with the report of the police, issued a preliminary order u/s 145(1) Code of Criminal Procedure.

Tulli filed his written statement on 27-6-1981. He set up his possession and title over the disputed property.

After appraisal of rival contentions, learned Magistrate attached the disputed crop on 14-4-1982 u/s 145(8) Code of Criminal Procedure.

Parties adduced evidence in support of their rival contentions. Learned Magistrate believed the case of opposite parties and ordered the release of property in their favour.

Aggrieved by the above order this revision has been filed in this Court.

I have heard learned Counsel for parties and perused the record carefully.

The first contention raised by learned Advocate for revisionist is that while recording the impugned order, the learned Magistrate omitted to record a finding that there was an apprehension of breach of peace which had ceased. So such order could not be allowed to stand vide Chhotey v. Om Prakash 1978 ACrR 90. A final order could have been drawn only by the Magistrate in a case were there was an apprehension of breach of peace. At the time of passing the final order, such omission of the finding rendered the order of the Magistrate illegal vide Chandra Prakash Nath Misra v. Smt. Prem Sundari 1977 ACR 106 . It was further pointed out that in that case, the learned Judge based himself on a Full Bench decision of this Court in Gajraj and Others Vs. Collector Singh, which posited at page 64:

(1) The Supreme Court decision in R.H. Bhutani v. Miss. Mani J. Desai, does not lay down the law that even if a plea is raised under Sub-section (5) of Section 145 of the Code such a plea must be rejected once the Magistrate had arrived at the conclusion under Sub-section (1) of Section 145 that there was an apprehension of a breach of the peace.

(2) Where the Magistrate does not record a finding on the plea raised by any party that there did not exist or never existed a dispute likely to cause a breach of the peace, and instead proceeds with the inquiry and passes a final order under Sub-section (6) of Section 145 of the Code of Criminal Procedure, there is no defect in the competence of the Magistrate to pass such an order; the defect is merely in the exercise of jurisdiction with the result that the proceeding shall not be vitiated unless the omission has occasioned a failure of justice that is on the basis of the material on record it can be said that no dispute likely to cause a breach of the peace existed or if it existed has ceased to exist. The defect in the exercise of jurisdiction would be curable u/s 537 of the Code. In ray opinion therefore, to the extent the Division Bench decision in Sankatha Singh v. Rahmat Ullahand Sheo Nath Singh v. Mannoo Singh Yadavlay down the law to the contrary, they are no longer good law.

A mere look at the aforesaid observations, shall go to disclose that the said observation of the Full Bench do not support the contention of learned Advocate for revisionist.

Learned Advocate for revisionist also referred to Section 145(5) of the said Code which reads as below:

...(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed, and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final....

Thus the contention was that without recording such finding, the final order of learned Magistrate was simply illegal.

I do not subscribe to this view. It was the case of the revisionist himself that there was an apprehension of breach of peace. There is on record the police report lodged by him in this connection. He also adduced oral evidence in support of his allegation. Learned Magistrate himself invited the police report and it was after the perusal of the report dated 29-3-1981 about the apprehension of breach of peace, that impugned order was drawn. In his preliminary order drawn by learned Magistrate, he has given the reasons for holding that a breach of peace existed. He was not under the necessity to repeat the same finding while recording the final order. This controversy has been set at rest now by Rajpati Vs. Bachan and Another, which observed:

A finding of existence of breach of the peace is not necessary at the time when a final order is passed nor is there any provision in the Code of Criminal Procedure requiring such a finding in the final cider. Once a preliminary order drawn up by the Magistrate sets cut the reasons for holding that a breach of the peace exists, it is not necessary that the breach of peace should continue at every stage of the proceeding unless there is clear evidence to show, that the dispute has ceased to exist so as to bring the case within the ambit of Sub-section (5) of Section 145. Unless such a contingency arises the proceedings have to be carried to their logical end culminating in the final order under Sub-section (6) of Section 145. Decision of Allahabad High Court Reversed AIR 1967 Pun 378 and AIR 1954 Hyd. 93, Approved.

Assuming, however, that there was an omission on the part of the Magistrate to mention in his final order that there was breach of the peace, that being an error of procedure would clearly fall within the domain of a curable irregularity which is not sufficient to vitiate the order passed by the Magistrate particularly when there is nothing to show that any prejudice was caused to any of the parties who had the full opportunity to produce their evidence before the Court. It was, therefore, not correct on the part of the High Court to have interfered with the order of the Magistrate on a purely technical ground when the aggrieved party had a clear remedy in the civil court.

I respectfully follow the same view.

The next contention that the question of title has not been finally determined so far and so the possession of opposite parties should not have been believed by the learned Magistrate.

This contention also has no legs to stand upon. Besides the oral evidence adduced by opposite parties their tube-well is in the disputed holding. The entries in the revenue papers are also in their favour.

Learned Magistrate has referred to copies of Khasras and Khatauni supporting the version of opposite parties and also the strong circumstance that the revisionist lived in Kanpur while the disputed property lay in district Fatehpur. There was no documentary evidence in support of the possession of revisionist. Finding about the possession is a finding of fact which was to be recorded by learned Magistrate. The High Court in revision cannot interfere with the decision of a trial court on the fact of possession so long as there is evidence in support of the finding vide Abdul Sattar 27 CriLJ 4711. The High Court does not interfere in revision with orders u/s 145 on the merits as a rule. It interferes only in following cases:

(1) Where necessary parties were left out or wrong persons made parties;

(2) Where the Magistrate refused to receive evidence tendered to him;

(3) Where the Magistrate''s finding of facts regarding possession was perverse and contrary to a mass of unrebutted evidence;

(4) Where no order in writing as required by Sub-section (1) was recorded by the Magistrate;

(5) Where the Magistrate refused to issue process for the attendance of material witnesses;

(6) Where the Magistrate discarded the evidence altogether and based his decision merely upon his local inquiry; or

(7) Where the Magistrate declared possession with a party who had long been out of possession.

None of these grounds have been made out in this case.

In the result, the revision is dismissed as devoid of force. Interim orders dated 20-1-1983 and 28-2-85 are vacated herewith.

Send the record to the court below.

Revision dismissed.