Chadhari Ahir and Another vs Raja Ram Singh

Ali Imam, J.—The petitioners, who are the second party in this case, assail the jurisdiction exercised by the Magistrate who dealt with this case on three grounds.

The first ground is that the proceedings were void because the provisions of Sub-clause 3 of Section 145 of the Code of Criminal Procedure were not complied with.

The second ground is that it was not open op the Trying Magistrate to rely upon the delivery of possession given to the first party two years before he passed his

The third ground refers only to costs the objection taken with reference to this being that the order as to costs was not passed at the time that the decision regarding possession was given in this case, but that on a subsequent date the order for costs having been passed was an illegal one.

In regard to the first point it appears that the proceedings were original initiated in this case u/s 144 of the Code and that after the matter under this section had proceeded for a time the learned Magistrate on the 19th of September 1917 intimated to the parties his intention to draw up proceedings u/s 145 of the Code. On the 20th, that is the day following, the Magistrate drew up'' proceedings in the presence of the parties.

It is contended by the learned Counsel appearing on behalf of the petitioners that this was not sufficient; that the Magistrate should have served the proceedings upon his clients in the manner provided for in Chapter VI of the Code of Criminal Procedure. Sections 68 and 69 of that Code are germane to this point raised by the learned Counsel. There is nothing in these two sections to show that the action taken by the learned Magistrate in drawing up proceedings u/s 145 in the presence of the parties was ultra tires of the provisions contained in them. I am, therefore, of opinion that no legal ground exists for the contention that the service of the proceedings on the parties was not effected in a legal manner. Moreover, the parties had due and sufficient cognizance of the contents of the proceedings, not only because they were present before the Magistrate, but also because on the next day when the case was taken up they were present and because on the date subsequent to that, they actually filed their written statements in the case. In fact they were present right through and had hotly contested the case before the Magistrate. On the authority, therefore of Sukh Lal Sheikh v. Tara Chand Ta 33 C. 68 : 2 C.L.J. 241 : 9 C.W.N. 1046 : 2 Cri.L.J. 618 (F.B.) as well as other rulings that have been referred to before me, the irregularity, even if it was so, would be regarded not as an illegality committed by the Magistrate; but I hold in this case that in fact the Magistrate was not guilty of any irregularity in proceeding with the case as he did.

The next question regarding the value of the delivery of possession requires an examination of some dates. It appears that one Sureba Kuer was the registered tenant of the holding which is the subject of this case. Her landlord proceeded against her and obtained a rent-decree. The first party are the auction-purchasers in the execution of the decree that was passed on the 21st February 1908. The delivery of possession took place in 1915. It appears that after the passing of the decree Musammat Sureba Kuer, the registered tenant, apprehended the sale of the holding and the consequent dispossession. In 1912 the Record of Rights was published and it appears that the name of her grandson was entered as a tenant. Mr. Akbari appearing on behalf of the second party contends that the presumption arising out of the Record of Rights should have been sufficient for the Magistrate to hold that the possession of the grandson continued. I find from the order of the learned Magistrate that the question had engaged his attention. He rightly holds in his judgment that with a view to avoid the '' rent-decree Sureba Kuer got, the name of her grandson entered in the survey papers. The presumption on which the learned Counsel relies is a presumption which must be consider-ably negatived by the delivery of possession, which took place subsequent to the publication of the Record of Rights; but it is contended that this delivery of possession was only a symbolical delivery of possession. Regard being had to the fact that the sale was in execution of a rent-decree, regard being had to the fact that, nothing has been shown before me as to how I am to hold that: that delivery of possession was a mere symbolical possession and not actual and regard being bad to the fact that there is a distinct finding by the Magistrate that it was through the Civil Court that the first party got possession of the land in dispute, I am unable to hold that the presumption; arising from the Record of Rights has not been completely disestablished. The Magistrate has come to the distinct finding that the delivery of possession was not a paper transaction as has been contended by the second party. I am, therefore, unable to accept the proposition that it has been proved that this delivery of possession was a symbolical one.

On the question of costs the point seems to be concluded by authority: In the present instance the order for costs was passed only 10 days after the order recording possession was given. This delay is not by any means a delay which is not permitted by the provisions of the Code of Criminal Procedure. This view has received acceptance in various cases. Among them are Doulat Koer v. Siva Pershad 10 Ind. Cas. 615 : 15 C.L.J. 267 : 12 Cri.L.J. 319 and Vythinada Tambiran v. Mayandi Chetty 29 M. 373 : 4 Cri.L.J. 232.

In the circumstances of the case nothing has been placed before me to show that the exercise of jurisdiction by the Magistrate in this case was not a proper one. The petition is rejected.