Basawan Pandey vs Tilak Gope and Others

Jwala Prasad, J.—This Is an application against an order of the Magistrate of Samastipur, dated the 14th December 1921, u/s 145 of the Code of Criminal Procedure.

In the proceeding Tilak Gope, Chhedi Gope and Musammat Bhikuni, wife of Chhedi Gope, figure as the 1st party and Basawan Pandey as the 2nd party. The dispute relates to three bighas odd kathas of land which was sold in execution of a rent decree, and was purchased on the 8th of April 1919, by the 2nd party. He obtained delivery of possession from the Civil Court on the 9th of June, 1921 (corresponding to the 19th of Jaith 1328). Upon an information lodged by the chawkidar on the 9th of October, the Junior Sub-Inspector of Police submitted a report, dated the 23rd of October 1921, holding that the land was in possession of the 2nd party and asking for a notice u/s 144 of the Code of Criminal Procedure against the members of the 1st party, and also for taking action u/s 107 of the Code. The Senior Sub-Inspector also enquired into the matter and submitted his report on the 31st of October 1921, pending that of the Junior Sub-Inspector. In that report also the Police found that the 2nd party was in possession of the property in dispute and the 1st party "seemed to be aggressive" and were trying to dispossess the 2nd party by force. He, therefore, asked for a notice u/s 144 to be issued against the 1st party, and a proceeding u/s 145 to be instituted "to clear off the future disturbance." On the 10th of November, the Magistrate called upon 1st party to show cause, why a proceeding u/s 107 of the Code should not be drawn up against that party. Cause was shown by the members of the 1st party on the 1st of December separately. Tilak Gope filed one petition and Chhedi and his wife filed another petition. Tilak in his petition alleged that he had taken settlement of the land from Basawan Pandey, the 2nd party, some three years ago, namely, one bighz six kalhas, at an annual rental of Rs. 5, and since then he has been in possession of the property. He objected to the proceeding u/s 107 on the ground that the dispute was concerning land, and consequently a proceeding u/s 145 should be instituted. Before that, another petition by Tilak was filed on the 29th of October to the same effect. We are not concerned with the petition filed by Chhedi Gope and his wife in the present case.

On the 2nd of December the Magistrate heard the parties, and Chhedi''s wife was directed to produce copies of certain sudbharna deeds by the 8th of December. On the 8th of December the case was adjourned to the 13th of December. On the 13th of December the Magistrate passed the following order : "Heard parties. Draw up a proceeding u/s 145 and put up to-morrow." The next day, that is, on the 14th December the Magistrate passed the following order: "Orders passed." In the order in question, he has upheld the Civil Court dakhaldehani in favour of the 2nd party Basawan Pandey, and against Chhedi Gope and his wife Musammat Bhikuni members of the 1st party. Chhedi Gope was the judgment-debtor in the Civil Court decree. Neither he nor his wife now dispute the order of the Magistrate. The order must, therefore, stand so far as they are concerned.

The 2nd party challenges the order with respect to 1 bigha 6 kathas claimed by Tilak in respect of which the Magistrate has declared the possession of Tilak u/s 145 of the Code. The Magistrate has shown no cause. Tilak has appeared in this case and has opposed the application of the 2nd party through a Vakil. It is obvious that the order of the Magistrate cannot be sustained for a minute.

On the 13th of December, the Magistrate directed proceedings to be drawn up and the case to be put up the next day. The order-sheet does not show for what purpose the case was to be put up and what was to be done the next day. There appears to be a proceeding drawn up in the record purporting to be u/s 145 of the Code of Criminal Procedure. This proceeding was not served upon the parties or their Pleaders, nor was it served upon the locality as is required by Section 145, Clause (3) of the Code. No written statement was filed by the parties, nor any evidence, oral or documentary, seems to have been adduced by them. It is contended on behalf of Tilak, one of the members of the 1st party, that the parties were present on the 13th of December, and the order to draw up a proceeding u/s 145 was passed in their presence, and consequently there was no necessity of a copy of the proceeding to be served upon them under Clause (3), of Section 145 of the Code. He cannot advance a similar argument in favour of dispensing with service of notice on the spot. His argument with respect to the non-compliance of the aforesaid clause of Section 145 is that, at best, it is only an irregularity and does not vitiate the trial or affect the jurisdiction of the Court which passed the order u/s 145. The clause in question (3 of Section 145) was newly added in the present Code of Criminal Procedure (1898), in order to give the parties full opportunity of putting in their claims, and also to any other person who may be interested in the subject-matter in dispute. The first is intended to be achieved by directing the service of notice upon the parties, and the second by service of the proceeding upon a conspicuous place at or near the subject-matter of dispute. The legislature has not added this provision in vain, and the reason of this addition has been fully discussed by me in the case of Ram Sahai Chowdhury v. Demandan Prasad 43 Ind. Cas. 103 : 4 P.L.W. 183 : Cri.L.J. 71 (Criminal Revision No. 341 of 1917). I have also in that case discussed the history of this change in the law, its effect and the authorities bearing upon it whatever difference there may be as to whether the non-compliance with the requirement of Clause (3) of the Section is an illegality or an irregularity. There has been a consensus of view upon the point that the non-compliance of the aforesaid requirement constitutes such a grave irregularity as, when it has caused a failure of justice or a prejudice to any party, the order u/s 145 is vitiated and the jurisdiction of the Magistrate is affected. As a result of my investigation into the authorities, I observed in that case that all the Judges agreed that the High Court had jurisdiction to set aside the order, when the provisions in Clause (3) of Section 145 were not complied with and the parties were prejudiced thereby. Taking the proviso at its lowest there can hardly be any doubt that its non-compliance in the present case has gone to the root of the jurisdiction of the Magistrate. Basawan Pandey, 2nd party-petitioner before us, has had in his favour the Civil Court writ of delivery of possession of such a recent date as the 9th of June 1921. Tilak claims through Basawan on the basis of an alleged Permanent Settlement 3 or 4 years ago. The Police reported that he has no document in his favour, no receipt of payment of rent and no evidence of possession. His settlement was not admitted. It lay upon Tilak, who claims possession of the land as against the Civil Court dakhaldehani, to prove that he took a valid settlement of the land from Basawan and that he actually cultivated and grew the crop in question. No evidence was given by him in this case. The learned Magistrate talks of having heard the parties and considered their evidence. I wonder what that evidence is. Surely, it cannot be any evidence oral or documentary under the Evidence Act, The Magistrate does not particularise that evidence in his judgment. The only reason why he thinks that Tilak, a member of the 1st party, is in possession of the land., as stated by the Magistrate to be, is that the possession was delivered by the Civil Court on the 9th of June 1921 and it was too late for the 2nd party to cultivate the land and grow makai and marwa. This is not evidence but a surmise. The real issue before him was as to who cultivated and grew the crops upon the land in question. Unless it WES admitted by Basawan, the 2nd party-petitioner, the Magistrate was not in a position to hold that the 1st party must have necessarily cultivated it, without any evidence of witnesses to prove it. He does not also refer to any document, if any, which would conclusively show the crops on the land were grown by the 1st party. The 2nd party has, therefore, been seriously prejudiced by the order in question, and the order mast be set aside. The Magistrate has not even considered the effect of a Permanent Settlement set up by the 1st party. Such a settlement is not admissible without a registered document; whereas Basawan who was not the decree-holder purchased the property at an auction-sale only recently. His right to settlement would arise after his purchase and dakhaldehani.

To draw up a proceeding on the 13th of December and to pass a final order on the 14th December is an extraordinary feat that could be performed only by the Magistrate in question. He is capable of doing so is obvious from a similar procedure adopted by him in Criminal Revision No. 17 of 1922. A reasonable expedition in the performance of one''s work is no doubt commendable, but an attempt to cut too short the procedure prescribed by law would amount to an inexcusable haste and perfunctoriness. The Magistrate has not, it seems to me, properly apprehended the procedure laid down in Section 145 of the Code. It is summary but it cannot be cut too short. I have, therefore, no hesitation in setting aside this order 01 the Magistrate. The Rule is made absolute.

I do not think the Civil Court dakhaldehani which the Magistrate has upheld in this case, so far as Chhedi and his wife, two members of the 1st party are concerned, can be so lightly treated as the Magistrate has done so far as Tilak is concerned. The Police reports upon which the action was taken by the Magistrate and which were the only documents before him at that stage clearly showed that the Civil Court dakhaldehani was given effect to and that the 2 ad party was in possession of the land, and Tilak was only creating troubles.

In case of future dispute, I have no doubt the Magistrate will take proper action to prevent a breach of the peace.