Bibi Soghra vs Emperor

Varma, J.—The second party in a proceeding u/s 145, Criminal P.C., are the petitioners before this Court, The dispute was with regard to four plots Nos. 432, 566, 474 and 1094 of Khata No. 277 in village Sarkanda within the jurisdiction of Govindpur police station in the district of Gaya.

The trial Court declared possession in favour of the first party who happen to be tenants. The second party, petitioners before this Court are the landlords. After going through various pieces of evidence adduced in the case the Court below came to the conclusion that the possession of the first party was established.

This order was passed as early as 15-11-1944. The petitioners, however, moved this Court on 15-8-1945 and obtained a Rule The most important point that has been urged by Mr. Rahman is on the question of procedure A proceeding u/s 145 was initiated on the report of a second class Magistrate on 3-7-1940 and the subject-matter of the dispute was attached, but curiously enough no step seems to have been taken to inquire into the question of possession by the Magistrate till 11-5-1944 when Nago put in an application before the learned Magistrate when another proceeding was drawn up. If I have understood Mr. Rahman''s argument aright, his argument is that when a previous proceeding u/s 145 was ponding, the Magistrate had no jurisdiction to initiate a second proceeding u/s 145 with regard to the same subject matter in dispute But this argument is not maintainable if one considers the contents of the petition filed by Nago and the first order in the order-sheet on that petition. The very opening paragraph of Nago''s petition says that the aforesaid case is pending for disposal since the last several years and in this period there have been considerable changes in the members of the first party and so it is essential that a fresh proceeding should be started making the persons named below party in this case and the prayer of Nago is that Your Honour would be graciously pleased to start a fresh proceeding after amalgamating the fornfisr two proceedings into one and further be pleased to order for issue of proceedings in the names of the following persons etc. This petition was evidently put up before the Magistrate on 12-5-1944 when he passed the following order:

Perused the petition for action u/s 145, Criminal P.C. There is apprehension of breach of the peace Draw up proceedings u/s 145, Criminal V.C., and serve on the parties. The lands are under attachment. The parties to file their documents and written statements on 29-3-44.

So from the quotations that I have given both Nago as well as the Magistrate were conscious of the fact that proceedings u/s 145 were pending, but that certain changes had taken place in the constitution of the first party as it then was and therefore it was necessary to issue fresh proceedings. The original first party, I may mention, was later on relegated to the position of second party in the new proceedings. I think the real grievance must be of the party which was deprived of his possession by the attachment in 1940, but I see no illegality in the proceeding which was drawn up on 12-5-1944. The Court was entitled to amend the proceedings in view of new circumstances and there is nothing illegal in this.

The next point that was urged was that the enquiring Magistrate should not have relied upon the local inspection that he held and if he relied upon it at all, he should have referred to the important facts mentioned in his report his inquiry was held u/s 148, Criminal P.C., which mentions the purpose for which such inquiries are to be held. The learned Magistrate has prepared an inspection note and he has mentioned all the material facts both for and against each party.

At one stage Mr. Rahman thought that certain matters in favour of his clients were not mentioned in the judgment, but later on it was pointed out to him that they were mentioned and considered by the learned Magistrate

Then there was another argument to the effect that the case was decided in contravention of the provisions of Sub-section (8) of Section 145, that is to say, that before the service returns were received by the Court with regard to certain individuals, the inquiry proceeded; but the learned Sessions Judge aptly pointed out that these were instances in which either those individuals had accepted the contention of Nago or had granted receipts to Nago. No prejudice can be said to have been caused to those individuals.

The next argument was that if the property was under attachment from the year 1940, then possession could not have been declared in favour of Nago inasmuch as Nago could not be said to be in possession within two months of the date of the initiation of the next proceeding. But this argument assumes that the proceeding which was drawn up under the order passed on 12-5-1944 was a new proceeding altogether which it could not be in view of the fact that the attachment was recognised by that order.

All the points urged having failed the role is discharged.