Bindhyachal Prasad Varma vs Madho Singh and Others

Das, J.—These two cases arise out of a proceeding u/s 145, Criminal P.C. The dispute relates to about 230 bighas of land in village Bharsara, Mangit within police station Shahpur of the district of Shahabad. The dispute appears to have arisen soon after the death of Lady Jwala Prasad, which event took place on 8th June 1941. The property in dispute belonged to the late Sir Jwala Prasad, a Judge of this Court. After his death on 25th March 1983, there was a dispute between his widow (Lady Jwala Prasad) and his brother Bindhyachal Prasad Varma, the petitioner in Cri. Revn. No. 290 of 1945, and first party in the proceeding before the learned Magistrate. Sir Jwala Prasad left two nephews also, Ramchandra Prasad Varma and Parsuram Prasad Varma, and a grand nephew, Bijoy Pratap Varma. Ramchandra Prasad Varma is concerned in Cri. Ref. No. 8 of 1945. The dispute between Lady Jwala Prasad and the aforesaid members of the family was ultimately referred to the arbitration of two Judges of this Court. The said arbitrators decided the dispute by an award. It is sufficient to state that under the award, the property was given in equal shares to Bindhyachal Prasad Varma and the nephews, with the proviso that during her lifetime, Lady Jwala Prasad would be in possession of, and entitled to, exclusive possession of the immovable property and to be entered in the land registration in respect thereof and receive and appropriate all profits therefrom and

otherwise to deal with the said property as proprietor having a life-interest only therein, subject nevertheless to personal liability in respect of all the ordinary expenditure of such a proprietor in respect of public demands and other burdens on the property not hereinafter excepted and in respect of the ordinary upkeep of the property and subject to such other conditions and reservations as are hereinafter set out.

Under Clause 6 of the award it was provided that

if a certificate is issued by the Collector in respect of any arrear of cess or other public demand payable upon any item of immovable property aforesaid by the first party (Lady Jwala Prasad), it is open to either the second or the third party (Bindhyachal Prasad Verma or the nephews) to pay to the Collector the amount due and such party is thereupon entitled to take possession of the said item of property until the first party has repaid to such other party the amount so paid to the Collector with interest at twelve and a half per cent, per annum etc.

The property in dispute in the present case has been described in three schedules. Schedule A consists of about 160 bighas of canal irrigated land said by the first party to be the bakasht of the proprietors. According to the first party, this land came into the possession of the first party on 27th September 1939, on payment by him of canal dues which had been allowed to fall in arrears by Lady Jwala Prasad and in respect of which a certificate had been issued by the Collector. This possession is claimed to have been taken in accordance with para. 6 of the award. Schedule B consists of about 12 bighas of land of which the first party claims to be in possession under a deed of trust executed by Lady Jwala Prasad on 30th September 1936, appointing the first party as trustee. Schedule C consists of about 57 bighas of land which has been referred to in the proceeding as inheritance land. It is said that the first party, Bindhyachal Prasad Varma, and the nephews came into possession of this land on the death of Lady Jwala Prasad on 8th June 1941.

On the other side, the second party to the proceeding u/s 145, Criminal P.C., claimed possession of the lands in dispute under a lease executed by Lady Jwala Prasad on 12th June 1940, in favour of her tahsildar, Madho Singh, and three of his relatives, namely, Sadho Singh, Awadh Singh and Gaya Singh. Besides these four persons, there are others included in the second party, and according to the second party''s case, these persons are relatives on whose behalf the settlement was taken by Madho Singh and others, and they were amicably in separate possession of the disputed lands which were acquired by the lease.

The present dispute arose in the following way. Soon after the death of Lady Jwala Prasad in June 1941, there was a report by the chaukidar of an apprehension of a breach of the peace. The local police thereupon submitted a report to the Sub-divisional Magistrate. On this report, a proceeding u/s 144, Criminal P.C., was drawn up. This proceeding appears to have terminated in favour of Bindhyachal Prasad Varma, and when the matter was brought to the High Court, this Court declined to interfere, as the order u/s 144, Criminal P.C., was likely to expire in a few days. An observation appears to have been made by this Court to the effect that the appropriate Section for deciding the question of possession would be Section 145, Criminal P.C. Subsequently, a proceeding u/s 107, Criminal P.C., was drawn up against the second party (Madho Singh and others). Again, the matter came up to the High Court and the proceeding u/s 107, Criminal P.C., was quashed. The decision of Dhavle J. who dealt with the case, is reported in Madho Singh and Others Vs. Emperor, . After the aforesaid decision, the learned Magistrate drew up a proceeding u/s 145, Criminal P.C., on 14th March 1942. This proceeding was drawn up on the earlier police report, inasmuch as the learned Magistrate was satisfied that an apprehension of a breach of the peace between the parties still continued. This proceeding terminated on 8th January 1943. The learned Magistrate stated that he was unable to satisfy himself as to which of the parties was in possession, and he attached the lands u/s 146, Criminal P.C. I have failed to mention that when a proceeding was drawn up on 14th March 1942, the learned Magistrate had passed an order of attachment pending his decision of the dispute. Against the order attaching the land u/s 146, Criminal P.C., there was a reference to this Court, which was disposed of by Shearer J., in Cri. Ref. No 29 of 1943. The reference was accepted, and the order of the learned Magistrate was set aside. The case was remanded with directions to the learned Magistrate to hear further arguments and then pronounce judgment.

The learned Magistrate heard further arguments on 19th September 1948, and then again on 13th February 1944. On 6th April 1944, he passed orders holding the second party (Madho Singh and others) to be in possession of the disputed land except a few plots and he forbade the first party from disturbing the possession of the second party. Against this order, there were again a reference and an application in revision, the reference being Cri. Ref. No. 23 of 1944 and the revision being Cri. Revn. No. 689 of 1944. These were disposed of by Reuben J. by his order dated 22nd September 1944. The application in revision was dismissed, and the reference was accepted in part with regard to some formal defects, which were directed to be corrected in the order under Sub-section (6) of Section 145, Criminal P.C., which was still to be issued. The matter again went back to the trying Magistrate, who heard the parties on 14th October 1944, and then on 16th December 1944, the Magistrate passed the formal order under Sub-section (6) of Section 145, Criminal P.C. It is against this order, dated 16th December 1944, that the two cases under our present consideration are directed. It would appear from what I have stated above that the present proceeding u/s 145, Criminal P.C., has now been pending for more than three years, and the dispute itself has been pending for more than four years, thereby frustrating to a great extent the very purpose for which the preventive Sections of the Code of Criminal Procedure were intended.

It would be convenient to take up the reference and the revision separately, inasmuch as the questions raised are not exactly the same. These cases were originally before a single Judge and have come to us, because it was considered desirable that the uncertainty of the legal position regarding a particular point, which I shall presently mention, should be set at rest by a decision of the Division Bench. The "uncertainty of the legal position," referred to above, arises in Cr. Ref. No. 8 of 1945, and is the following. I have already stated that the first party in the proceeding u/s 145, Criminal P.C., was Bindhyachal Prasad Varma, and the 2nd party were Madho Singh and others. The nephews of Bindhyachal Prasad Varma were not made parties to the proceeding. When the matter came up before Reuben J., one of the points taken before him was that the order of the learned Magistrate was bad, because of non-joinder of the nephews. Reference was made in this connection to the cases in Raghunandan Pandey v. Kishin Mohan Singh AIR 1922 Pat. 210; Jainath Pati Vs. Ramlakhan Prasad and Others, and Inderdeo Singh Vs. Kesho Singh and Others, . Reuben J., then observed as follows:

The point is a difficult one, and, in my opinion, it is not necessary to consider it in the present case, because Inderdeo Singh Vs. Kesho Singh and Others, is itself an authority that proceedings u/s 145 are not without jurisdiction, and, therefore, void merely because certain persons who might have been impleaded have not been impleaded. In the present case, the nephews have not made an application to be impleaded or to challenge the validity of the proceedings. When they do so, it will be time enough to consider what the effect of not impleading them will be.

When the case went back to the Magistrate for the purpose of removing some of the formal defects as directed by Reuben J., Ramchandra Prasad Varma made an application on 18th October 1944, to be made a party to the proceeding. It is to be noted that this application was filed after the proceeding had terminated in favour of the 2nd party by the decision of, the learned Magistrate given on 6th April 1944. All that remained to be done was to issue a formal order under Sub-section (6) of Section 145, Criminal P.C. The application filed by Ramchandra Prasad Varma was rejected by an order of the learned Magistrate in the following terms:

It is too late now. He was not a party in the proceeding. Babu Bindhyachal Prasad Varma has already claimed to represent him.

Therefore, the question for consideration is if the order of the learned Magistrate is bad for non-joinder of Ramchandra Prasad Varma, one of the nephews of Bindhyachal Prasad Varma. This question has been examined in great detail in Inderdeo Singh Vs. Kesho Singh and Others, with reference to the earlier decisions in Raghunandan Pandey v. Kishin Moha Singh AIR 1922 Pat. 210 and Jainath Pati Vs. Ramlakhan Prasad and Others, , and it has been held that the two essential conditions for the foundation of jurisdiction of the Magistrate u/s 145 are that there should be a dispute likely to cause a breach of peace and that the dispute should concern land: it is not correct to say that because Section 145(8) provides for local publication, therefore, the question of possession is set at rest once for all and the final order u/s 145(6) is binding on the whole world.

It is, therefore, open to a Magistrate to start fresh proceedings u/s 145 in respect of the same land, when the parties to the proceeding are not the same as in the previous proceedings. This very question was referred to the Full Bench of the Calcutta High Court in as far back as 1902, and the decision of the Full Bench was given in Krishna Kamini v. Abdul Jubbar 30 Cal. 155. At the time when the said decision was given, orders u/s 145, Criminal P.C., were excepted from the revisional jurisdiction of the High Court, though they were subject to superintendence u/s 107, Government of India Act, 1915. The nature of this latter jurisdiction was among the questions dealt with by a Special Bench to this Court in Parmeshwar Singh v. Kailashpati AIR 1916 Pat. 292, where the decision of the Calcutta High Court in Krishna Kamini v. Abdul Jubbar 30 Cal. 155, was referred to with approval. On the question as to how nonjoinder affected jurisdiction, Hill J., whose judgment was concurred in by the majority of the Full Bench, observed as follows in Krishna Kamini v. Abdul Jubbar 30 Cal. 155:

Then as to the question of jurisdiction. On being satisfied of the existence of a dispute likely to cause a breach of the peace concerning land, etc., within his local jurisdiction, the duty, which is imperative, is cast upon the Magistrate of taking action u/s 145. The two essentials are that there should be a dispute likely to cause a breach of the peace, and that the dispute should concern land, etc The Section does not primarily contemplate cases in which there have already been overt acts of violence. All the disputants may be persons of peaceable disposition, but if the dispute is in its nature of such a kind that it is likely, having regard to the known conditions of society, to lead to a breach of the peace, that is enough to warrant the Magistrate''s intervention and to give him jurisdiction over the subject of dispute. Upon the existence of those conditions and those conditions only, is the jurisdiction of the Magistrate in my opinion dependent. The object I think, is to take the subject of dispute, so to speak, out of the hands of the disputants, and to constitute one of them, whose possession the law will protect, its custodian until the other has established his right (if any) to possession in a civil Court. In certain instances indeed the Magistrate is authorised himself to take possession so that none of the parties concerned may have possession, until a civil Court has decided upon the right. But be this as it may, questions of the misjoinder or non-joinder of parties do not ordinarily go to the jurisdiction. A Magistrate would no doubt be acting without jurisdiction, if he entered upon his inquiry without having issued the orders contemplated by Clause (1) of the section. But questions of whether A ought to have been added as being a person likely to be affected by the proceeding, or B omitted as not being concerned in it, or whether C was added at too late a stage, and such like, are questions of procedure by which in my opinion, the jurisdiction of the Magistrate is not affected.

It was further pointed out in that case that up to the point of the beginning of the inquiry, the Magistrate has very wide powers with respect to the person whom he will bring into the proceeding; he may alter or add to the array of parties either of his own motion or on the application of any one claiming to be concerned in the dispute in the sense that he claims to be in possession; but after the enquiry has opened, it is not intended, subject to the provisions of Clause (7), that any new parties should be brought in. It would lead to much inconvenience and delay, and it would be necessary in such a case to start the inquiry afresh, as the party added would have a right to have the evidence taken in his presence; if several claimants successively were to come in this way, it is evident that the proceeding might be indefinitely prolonged. This view taken in Krishna Kamini v. Abdul Jubbar 30 Cal. 155 was accepted in Nandan Singh and Another Vs. Siaram Singh, , where it was observed that the question of misjoinder and non-joinder of parties being a question of procedure did not ordinarily affect jurisdiction. The same view was again expressed in Inderdeo Singh Vs. Kesho Singh and Others, , where several earlier decisions on the same question were examined. This view was also approved by a Division Bench in Ambika Thakur and Others Vs. Emperor, where the effect of an order u/s 145, Criminal P.C., came to be considered in an appeal from a conviction of certain persons. It was observed there as follows:

Though both of us agree in the view taken in this last case, Inderdeo Singh Vs. Kesho Singh and Others, , the general principle, which we have enunciated above, remains the same. A third party, not bound by the order in a proceeding under the section, is in a different position from a party who has been definitely prohibited from disturbing the possession of the successful party.

The question of not impleading some co-sharer landlords in a dispute u/s 145, Criminal P.C., was also considered in Raja Gope and Others Vs. Sukan Singh and Another, and it was observed as follows:

In the case of cosharer landlords, possession of one is the possession of all, and one set is capable of representing the entire body in a proceeding u/s 145, Criminal P.C.

The decision in Anesh Mollah v. Ejaharuddi Mollah 28 Cal. 446 was distinguished on the ground that it was a case in which there were different sets of landlords, some of which were not parties to the proceeding. In the case before us, the written statement of Bindhyachal Prasad Varma claimed that he and his nephews were jointly in possession. The statement is "that the petitioner along with his nephews is in possession of all the lands described in Schedules A and C." Whether Bindhyachal Prasad Varma could and did represent the nephews in the present proceeding u/s 145, Criminal P.C., is a question which need not be decided here. No application was filed on behalf of any of the nephews for being added as a party, till after a decision had been given by the learned Magistrate on 6th April 1944. The application was made for the first time by Kamchandra Prasad Varma on 18th October 1944, after the case had gone back to the learned Magistrate for issuing a formal order under Sub-section (6) of Section 145, Criminal P.C., as directed by Reuben J. In these circumstances, I am unable to accept the contention that the order of the learned Magistrate is bad for non-joinder of Ramchandra Prasad Varma. In my opinion, the view taken in Krishna Kamini v. Abdul Jubbar (03) 30 Cal. 155 is still good law, and two single Judges of this Court and a Division Bench have accepted that view as correct. As at present advised, I see no reasons to dissent from that view.

The only other question, which arises in Criminal Reference No. 8 of 1945, is the order supposed to have been given by the learned Magistrate for delivery of possession on 16th December 1944. It is in respect of this order that the learned District Magistrate has made a reference to this Court. It appears from the explanation of the learned Magistrate that no writ of delivery of possession in the ordinary sense was issued: what the learned Magistrate meant was the withdrawal of the attachment by the Court after he had decided the question of possession in favour of the second party. It is admitted that the order of the attachment has now been withdrawn. It is clear to us that no order of attachment can subsist after the learned Magistrate has found in favour of the second party on the question of possession.

Therefore, there are no grounds for interference with the order of the learned Magistrate on this account. This disposes of Criminal Ref. No. 8 of 1945. I now turn to Criminal Revn. No. 290 of 1945. The learned Advocate-General for the petitioner has urged before us that the order of the learned Magistrate is bad because some of the members of the second party were dead before the proceedings were drawn up and some more probably died during the proceedings. It was not alleged during the pendency of the proceedings that any of the parties had died; even when the cases were heard by Reuben J. it was not alleged that any of the members of the second party had died. It was during the pendency of the two cases now before us that an allegation was made that some of the members of the second party had died. An affidavit filed by Madho Singh stated that Deshraj Singh and Kedar Singh had died in the year 1942, Mukhi Singh died in 1943 and Suraj Nath Singh in 1944. A counter affidavit was filed on 27th June 1945, on behalf of the petitioner, Bindhyachal Prasad Varma, in which it was stated that Deshraj Singh died on 17th March 1942, Kedar Singh died on 16th October 1941, Mukhi Singh on 10th November 1941, and Suraj Nath Singh on 13th July 1944. It has been very strongly contended by the learned Advocate-General that the entire proceeding is bad, because an order has been passed by the learned Magistrate upholding the possession of certain dead persons. We are not in a position to decide the question as to the dates on which these persons died, on affidavits only.

Moreover, the written statement filed on behalf of Madho Singh and others (second party) clearly shows that the members of the second party were in possession under one title, and separate possession amongst them was a matter of private arrangement. One of the points which was made before Reuben J., and which was sought to be re-agitated before us, is that the order of the learned Magistrate is bad, inasmuch as he has not considered separately the possession of different members of the second party. Reuben J. disposed of this point as follows:

As I have indicated, the claim of the second party is that they all derived their title to, and their possession over, these lands under the lease executed by Lady Jwala Prasad in the year 1940. The separate possession of the land by different sets of the second party is a matter of private arrangement between themselves. I do not see how the failure of the Magistrate to specify the different portions in his proceedings can have prejudiced the first party.

Reuben J. had disposed of the point, and it is no longer open to the petitioner to raise the same point over again. Our attention was drawn in this connection to the case in Ram Kishun Singh v. Faujdar Gope AIR 1937 Pat. 413 . The facts of that case, however, were different, inasmuch as the tenants in that case claimed under different titles, and there was no unity of title or possession amongst the tenants who were members of the second party. In those circumstances, it was observed that the order of the Magistrate had resulted in the absurdity of passing an order declaring the possession of a person who was dead before the proceeding was drawn up. This case was considered in Raja Gope and Others Vs. Sukan Singh and Another, , where the distinction mentioned above was pointed out and reference was made to the case in Gulab Kuer and Another Vs. Ganouri Koeri and Others, , where Noor J. had pointed out that it was not necessarily illegal or irregular to combine a large number of plots in a proceeding u/s 145, when the dispute between a landlord, who claims a large number of plots on one side and different sets of tenants, who claim different plots, on the other. Here the members of the second party were claiming as a body under the lease of 1940. In such circumstances, I am unable to accept the contention that the order of the learned Magistrate is bad, because he did not consider the separate possession of each particular member of the second party or because some members of the second party have died during some stage or other of the proceeding.

The learned Advocate-General laid great stress on the fact that the lease, on the basis of which the second party claimed to be in possession, has now expired by efflux of time, the lease being for a period of five years only. He has contended that the petitioner, as landlord, is entitled to take possession of the land now on the expiry of the lease, and an adverse order u/s 145, Criminal P.C., might prevent him from exercising his ordinary right as a landlord. Reliance has been placed on the case in Gita Prasad Singh v. Emperor AIR 1925 Pat. 17, where it has been observed that the tenant whose right is determined after the expiry of the lease has no right to remain forcibly upon the land and say to his landlord that he will cultivate that land till he is evicted by a civil Court, and that the landlord is entitled to go upon the land and, if necessary, to use force for the purpose of asserting and maintaining his possession. This contention, however, loses sight of the fact that in a proceeding u/s 145, Criminal P.C., the material question for decision is the question of possession at the date of the order under Sub-section (1) of Section 145. Therefore, the material question for decision in the present case was the question of possession in March 1942, when the proceeding u/s 145, Criminal P.C., was drawn up. The Magistrate is bound to uphold the possession of the party who was in possession on that date. It is not admitted by the second party that they have given up pos-session after the expiry of the lease, and it would be obviously improper to drop proceedings or set aside the order of the Magistrate when the dispute between the parties still subsists.

There are certain other points raised on behalf of the petitioner, which were disposed of by Reuben J., and the petitioner cannot be allowed to re-agitate them now. With regard to the formal defects, which Reuben J. had directed to be corrected, the learned Magistrate appears to have corrected them in his formal order, dated 16th December 1944, except with regard to two particulars which I shall presently mention.

With regard to those plots, which were not claimed in their entirety by the second party, the learned Magistrate has now specified the portion which the second party claim, instead of merely stating "disputed land" as he had done before. With regard to some of the plots, it appears that the first party claimed a particular half either western, eastern, southern and northern, whereas the second party claimed from a different direction. It has been contended before us that only the overlapping portion will be the disputed portion, and not the entire half. The learned Magistrate has, however, specified the particular half which the second party claim, and in respect of which the learned Magistrate has found the second party to be in possession. I am unable to see how any prejudice has been caused to the first party by such specification. The matter has now been made clear by the learned Magistrate, and there is no difficulty in finding out the particular portion in respect of which the possession of the second party has been upheld.

I now mention the two particulars, in respect of which the defects still exist. There are four plots, Nos. 277, 148, 590 and 351, which were not claimed by the second party; yet they have been given to the second party. Learned Counsel for the second party has stated before us that these four plots were not claimed by the second party. Therefore, the order of the learned Magistrate with regard to these four plots must be set aside. As these four plots were not claimed by the second party, they cannot be held to be in possession thereof. Then there are seven plots, Nos. 534, 219, 135, 137, 568, 578 and 579, which it is stated, were not included in the proceeding, but in respect of which an order has been passed by the learned Magistrate in favour of the second party. Learned Counsel for the second party has pointed out that two of these plots, namely, Nos. 534 and 579, are included in the proceeding. Therefore, the learned Magistrate has made no mistake regarding these two plots. The remaining five plots, namely, Nos. 219, 135, 187, 568 and 578, were not included in the proceeding: this has been conceded by the learned Counsel for the second party. Therefore, the learned Magistrate could make no order regarding these five plots.

The net result, therefore, is that the reference is discharged, and the application in revision is dismissed, subject to the modifications mentioned above. The order of the learned Magistrate will stand except with regard to the four plots mentioned above, which were not claimed by the second party, and the five plots not included in the proceeding. The order of the learned Magistrate will be set aside regarding these nine plots.

Manohar Lall, J.

I entirely agree.