Basudeo Singh vs Mahadeo Lal

Macpherson, J.—In this application in revision the petitioner impugns the order of the District Magistrate drawing up proceedings u/s 145 of the Cr.P.C. on the ground that the order is without jurisdiction because that provision is not applicable to the circumstances. The Sub-Divisional Magistrate of Nawadah passed an order u/s 144 of the Code against the petitioners and the opposite party restraining them from removing any of the crops which had been paid as bhaoli rent by the tenants and which were deposited in the khalihan, and upon an application to him under Sub-section (4) the District Magistrate set aside the order as unwarranted by law, but in view of the definition of "land" in Clause (2) of Section 145 as including "the rent or profits of any such property" and as "the Police report shows that a breach of the peace was imminent and clearly, as long as the dispute regarding the extent of the share is not decided, there will continue to bean apprehension of a breach of the peace" directed that proceedings u/s 145 should be drawn up in his Court in respect of the six annas bhare in dispute and be transferred to the Court of the Sub-Divisional Magistrate of Nawadah for disposal.

In the formal proceeding drawn up u/s 145 the parties were directed to lodge "Written statements as to their actual possession of the right of collection of the six annas share of the produce rents which is in dispute" and a six annas share of the produce rent deposited in the khalihan was attached pending disposal of the case.

The following facts are admitted: Pasdeo Singh and Mahadeo Lal are joint thikadars for seven years of Majhla mahal but the lease does not specify what is the share of each. For about four years the same gomasta Dilwar Khan, who had also worked for their lessor, represented both in the village but Mahadeo Lal being dissatisfied with him re-placed him, so far as his interest was concerned, by Behari Singh. The dispute between the parties is whether the share of Mahadeo Lal is two annas or eight annas and the collection is no longer joint. When the report of the Police which led to the order u/s 144 was made, the thikadars share of the produce rent of the village was gathered, in the khalihan, and was awaiting distribution. After the attachment in the Section 145 proceedings, the Sub Divisional Magistrate directed the Agricultural Inspector to sell" the attached produce rent (six annas of the whole) and the sale-proceeds have been placed in deposit.

Now it is not in controversy that proceedings u/s 145 are not warranted by Sub-section (2) in respect of disputed crops or other produce of land, or of disputed bhaoli rents or profits of such property when these have been severed and removed from the land. In the present instance the dispute between co-thikadars as to the extent of share in the distribution of the bhoali rent collected in the khalihan could not be decided u/s 145. The pending proceeding, however, apart from the order of attachment which is not here assailed, does not relate to the six annas of the bhoali rent deposited in the khalihan. The subject of dispute h the right to collect the six annas share of the rent of mahal Majhla.

The petitioner claims that Section 145 is no applicable to the circumstances as tin parties are in joint possession of the village Mr. Fazle Ali on their behalf relies upon the rulings in Beni Narain v. Achraj Nath 5 A. 607 : A.W.N. (1883) 163 : 3 Ind. Dec. 544 approved in Surb Narain Singh v. Birj Mohan Thakur 23 C. 80 : 12 Ind. Dec. 54 Nritia Gopal Singh v. Chandra Charan Singh 10 C.W.N. 1088 : 4 Cr.L.J. 215 and also Akaloo Chandra Das v. Mohesh Lal 4 Ind. Cas. 496 : 36 C. 986 : 11 Cr.L.J. 28 as showing hat a dispute as to the right to realise rent of an undivided share of land is not, dispute falling within Section 145. In reply Mr. Shiveshwar Dayal relies on Sri Mohan Thakur v. Narsingh Mohan Thakur 27 C. 4 C.W.N. 420 : 14 Ind. Dec. 171 referred to with approval by Spencer, J., n Bulkis Bivi v. Nagoor Kanni Rowther 28 Ind. Cas. 332 : 17 M.L.T. 225 : (1915) M.W.N. 167 : 16 Cr.L.J. 284 and to two cases of this Court, Sham Lal Mahton v. Ragendra Lal 58 Ind. Cas. 518 : 1 P.L.T. 594 : 21 Cr.L.J. 790 and Ramjharia v. Piar Koeri 73 Ind. Cas. 173 : 4 P.L.T. 308 : A.I.R.(1923) (Pat) 369 : 24 Cr.L.J. 757 : 2 Pat. L.R. 6 Cr.

The first two cases cited by Mr. Fazle Ali were decided prior to the amendment of the Cr.P.C. in 1898 in which the terms of Section 145 were greatly altered and in particular by the extension of the defintion of "land" made by Sub-section (2) so as to include inter alia the rents of land. No doubt the principle has been approved in Nirtta Gopal Singh v. Chandi Charan Singh 10 C.W.N. 1088 : 4 Cr.L.J. 215 but that case related to impartible property in which the possession of co-shebaits was necessarily joint. It was also there admitted that the facts in Sri Mohan Thakur v. Nanivg Mohan Thakur 27 C. 4 C.W.N. 420 : 14 Ind. Dec. 171 were distinguishable. In Akaloo Chandra Das v. Mohesh Lal 4 Ind. Cas. 496 : 36 C. 986 : 11 Cr.L.J. 28 which relates to tolls of hat, the decision was that there is no jurisdiction u/s 145 to determine the method by which the possession of the parties is to be exercised or the agency whereby the party in possession is to collect the rents. These rulings and others relating to management of property to which the parties are jointly entitled are distinguishable and do not afford assistance in the present circumstances.

Here the two partners in the lease are admittedly in separate possession of their shares; there is no dispute that, the parties hold actual separate possession of the right of collection in respect of eight annas and two annas respectively of the rent of the village. It is not a casein which one party claims joint possession and another contests the claim. There is no dispute as to management. It is a pure case, of rival claims to exclusive possession of six annas of "land" as denned in Sub-Section 2. It does not appear that the authority of Sri Mohan Thakur v. Narsing Mohan Thakur 27 C. 4 C.W.N. 420 : 14 Ind. Dec. 171 decided soon after the Code of 1898 came into operation has been seriously impaired and it goes much further than is necessary for the purpose of the present case. It was there held that there is no want of jurisdiction u/s 145 when the dispute is regarding the right to the collection of rent between joint owners of the land under Mitakshara Law. The two rulings of this Court which have been cited show that the criterion is whether the parties claim exclusive possession; if they do, Section 145" is not inapplicable. In the present case each party claims separate possession of the "land" in dispute.

Accordingly on the facts as represented, the proceeding u/s 142 drawn up by the District Magistrate is not without jurisdiction. As to the order of attachment and the subsequent sale of six-sixteenths of the crop of the past year deposited by'' the tenants in the ''khalihan nothing has been said in this Court, the parties apparently realising that that order; whether made with jurisdiction or not, was in the circumstances the most beneficial order for all concerned which could have been made.

The Rule is accordingly discharged. An endeavour should be made to dispose of the case u/s 145 with all reasonable expedition.