Bhuneshwar Prasad and Others vs Rommoy Roy

Dhavle, J.—This is an application in revision against an order passed in proceedings u/s 144, Criminal P.C. The original order which was passed ex parte against the petitioners is dated 24th August 1939. The petitioners thereupon appeared before the Magistrate and asked him to rescind the order. This application was refused by the Magistrate on 10th October 1939, though the opportunity was seized to make some small amendments in the order. Against this order of 10th October, the Deputy Commissioner was moved in revision, and on the 30th of that month he rejected that petition. The petitioners applied to this Court on 18th December in revision against the order of the Sub-divisional Magistrate which the Deputy Commissioner had declined to interfere with.

It appears that lot Itkhori was a khorposh jagir under the Hamgarh Raj; and it is stated on behalf of the petitioners, representing some servants and some tenants of the Ramgarh Raj, that such grants are resumable on failure of the male line of the grantee. The last holder of the Itkhori lot khorposh was Degnarain Sahi, and it is common ground that he died on 18th July last. In 1934-36 the opposite party before me, representing one Buto Kristo Roy, purchased six villages of the lot from Degnarain Sahi, and it is common ground that the purchaser came into actual possession. The case of the opposite party is that Degnarain has left a son. The case of the petitioners, on the other hand, is that Degnarain left no issue and that consequently on his death the Ramgarh Raj became entitled to resume possession of the jagir and that it succeeded in doing so peacefully by publishing notices u/s 51, Chota Nagpur Tenancy Act. The order of the Sub-divisional Magistrate as finally settled by him concerns, I understand, these six villages out of the jagir.

About a month after the death of Degnarain, Buto Kristo Roy began to move the authorities against the interference of the Ramgarh Raj with his possession. Police officers were deputed to Itkhori to see that the peace was preserved. The Magistrate himself appears to have been at Itkhori on 24th August, when he directed the Senior Police Officer deputed there to report clearly "in respect of which properties the Ramgarh Raj people wanted to exercise acts of possession and who has been in possession of these properties." ''The result was a police report that there was an imminent danger of a breach of the peace as the employees of the Ramgarh Raj would "certainly do some overt acts to take possession over the villages" which had been coming on in the possession of Buto Kristo Roy.

In his order of 10th October, the learned Sub-divisional Magistrate says:

In fact at the time of arguments it was clearly stated on behalf of the second party (that is to say, the petitioners before me) that B. K. Roy has been in direct and sole possession of the aforesaid six villages....that the second party had not so far exercised any act of possession except making a proclamation u/s 51, Chota Nagpur Tenancy Act, that the second party wanted to take possession peacefully by accepting rent from those tenants who offered it voluntarily and that so no action under S, 144, Criminal P.C., was necessary. The learned Magistrate referred to the police report, which was endorsed by the Inspector of Police, that the second party wanted forcibly to dispossess B. K. Roy, and he found it impossible to think that Buto Kristo Roy who had purchased these villages for a very big sum of money would tamely allow the second party to dispossess him.

He came to the conclusion that all the members of the second party had been acting jointly and severally forcibly to dispossess the first party, and he therefore affirmed his ex parte order u/s 144(2) with certain modifications which do not require any specific mention.

It has been contended by Sir Sultan Ahmad who appears on behalf of the petitioners that the Subdivisional Magistrate had completely

misunderstood the petitioners, for they could not have pleaded themselves out of Court by conceding that they had not so far exercised any act of possession except making the proclamation u/s 51, Chota Nagpur Tenancy Act, and by adding that they wanted to take possession peacefully by accepting rent from those tenants who offered it voluntarily. In support of the contention that the Magistrate must have misunderstood the petitioners, learned Counsel has referred me to para. 10 of the petition in revision made by these petitioners to the Deputy Commissioner.

It seems to me, however that the misunder-standing, if any, is of little consequence in the circumstances of this case. There is no dispute that Buto Kristo Roy was in possession down to the death of Degnarain, and the Deputy Commissioner, no less than the Sub-divisional Magistrate, has found it impossible to think that Buto Kristo Roy would have allowed himself tamely and quietly to be put out of possession by what, ever tactics that may have been adopted by the petitioners.

Sir Sultan Ahmad points out that the petitioners before me are not all employees of the Ramgarh Raj, but include some tenants as well. The mere fact that the Ramgarh Raj has got a few tenants on its side does not by any means indicate that the Ramgarh Raj is in peaceful possession of these khorposh villages, or even make out a fair case of a bona fide dispute as regards possession.

The Ramgarh Raj may if Degnarain has died without issue, be entitled to resume possession, but unless the transferee from Degnarain chooses voluntarily to walk out (which one need hardly say is unlikely to a degree), the Raj will have to sue to recover possession from him.

Sir Sultan Ahmad has urged that this was not a case to which Section 144 should have been applied at all. As I have already indicated, there was an apprehension of a breach of the peace which the police reported as an "imminent danger of a breach of the peace," and though the dispute did refer to the possession of these mauzas, it was not a'' case where, under the principles laid down in Bhebalak Singh v. Kamar-ud-din Mandal AIR (1922) Pat 435 and Laohman Das v. Ramohhabila AIR (1929) Pat 415, it was obligatory on the Magistrate to drop the proceeding u/s 144 and proceed to act u/s 145, Criminal P.C., for his finding (endorsed by the learned Deputy Commissioner) is perfectly clear that there was not a bona fide dispute about possession at all and that what had happened was that while Buto Kristo Roy was continuing his possession the Ramgarh Raj was trying to, take it by means which it called peaceable, but which appeared to the police and the Magistrates to be very likely to lead to breach of the peace.

It is only where there is a dispute likely to cause a breach of the peace concerning any land or water or boundaries thereof and the dispute requires to be decided on evidence that resort to Section 145 becomes necessary; and it must be remembered that for this purpose the dispute has to be a real dispute and not a mere pretence on behalf of one of the con-testing parties. The judicial pronouncements already referred to are clear that where there is no such real dispute orders u/s 144 are not improper. There may even be occasions where an order is first appropriately passed u/s 144 and the proceeding is afterwards converted into one u/s 145 in order to pass an even more appropriate and permanent order. But this is not a case of that kind; and though I can quite believe that the petitioners did not intend by their pleader to say to the Magistrate what the Magistrate took him to mean, his decision really turns not so much on what the pleader stated as on facts which to use the term adopted in Laohman Das v. Ramohhabila AIR (1929) Pat 415 can be called transparent.

Sir Sultan Ahmad has also argued that the petitioners have not been given an opportunity of proving that they are in fact in possession; but the answer to this is that the case was not put on that footing either before the Magistrate or before the Deputy Commissioner, for the contention only means that there should have been proceedings u/s 145 rather than a final order u/s 144. The initial contention before me was that there was no dispute such as to warrant an order u/s 144, and this fails in view of the definite police report received and accepted by the Sub-Divisional Magistrate. From this point of view it does not seem necessary to deal with the contention of Sir Manmatha Nath Mukherji for the opposite party that the period of two months for which the order of the Magistrate was to remain in force runs from the date of the ex parte order and has expired long ago--indeed this is not disputed by the other side--and that this Court should therefore not entertain the application in revision. As I have already shown, the application fails on the merits. The application is dismissed.