Domon Gope and Others vs Het Narain Singh and Others

Rowland, J.—This is an application to revise an order passed u/s 144, Criminal P.C., on 15th July 1939, which was confirmed against the petitioners on 6th September 1939 but on the same date withdrawn against the opposite party. In the application presented in this Court the propriety of the original order is not questioned, but it is said that by the subsequent order withdrawing it against the opposite party and keeping it in force against the petitioners the Magistrate has in effect given a decision intended to be permanent on a question of possession which ought to have been decided u/s 145 after hearing evidence. The dispute giving rise to the proceeding concerned 13.79 acres of land in village Jhakua entered in the record of rights as bakasht lands of the Maharaja Bahadur Raj Gidhour. The village, it appears, was in lease from 1332 to 1338 Fasli with one Biseswar Singh.

Then from 1931 to 1937 A.D. it was in lease to a son of Biseswar named Basuki. Then from Asin 1345 Fasli the village was let to Jamuna Singh. A dispute arose as Het Narain. Singh, a cousin of the former thikadar Biseswar, claimed to be in possession of most of the bakasht lands as a raiyat. Jamuna Singh on the other hand asserted that most of the lands were in the direct cultivation and possession of certain bataidars, Mahabir Singh, Lakho Singh, Ramsa-gar Singh, Bhuno Singh and Hari Misser. These persons claimed not to have been inducted on the land by Jamuna but to have been in possession from long before under the previous thikadars. On the other hand, Het Narain asserted that he had not been inducted on the land by his cousin Biseswar and propounded an alleged earlier settlement of land with him by the Raj itself.

On 1st November 1938, the local police reported for proceedings u/s 144 naming as first party Het Narain and as second party Jamuna Singh and the bataidars alleged to hold under him. The Magistrate drew up a proceeding u/s 145, Criminal P.C., and a compromise was entered into on 19th January 1939 between Het Narain of the first party and Jamuna Singh of the second party by which both of them disclaimed in favour of the Gidhour Raj all their alleged rights of possession over the land and accepted the position that the lands should be possessed by whichever party should obtain settlement from the Gidhour Raj. On that the proceeding was dropped.

The lands were settled by the Court of Wards on behalf of Gidhour Raj with Het Narain on 29th June 1939 and the present proceedings were initiated by a report dated 12th July 1939, by the Sub-Inspector who recommended that a proceeding should be taken u/s 145. The Magistrate passed urgent orders on 15th July u/s 144 directing both parties to keep away from the disputed land pending further orders. Thereafter the parties filed written statements and brought papers relevant to their respective cases on which the Magistrate could have proceeded u/s 145, Criminal P.C., after taking evidence so as to decide the dispute once for all. Instead, he took no evidence but took one of those short outs in procedure which are so constantly found to be unsafe.

He passed an order (presumably based on documents which were not exhibited or on submissions by advocates or pleaders who were not witnesses) reciting the history of the dispute, assuming the lands to be kamat or privileged proprietor''s private lands, and drawing the inference that on the expiry of successive thikas the lands must have reverted to the malik in their original condition because he thought the malik was entitled to get them back in their original condition and to reject any persons who might be on the land. It was not, however, admitted that the land was true zirat and it is said to be entered in the Record of Bights as bakasht : that raises a question requiring evidence for its determination. The petitioners before me are persons who claim to have been bataidars from before the date of Jamuna''s thika and to have not been in fact ejected either on the expiry of previous thikas or by the surrender on the part of Jamuna Singh to the landlord of his thika right.

Assuming that the landlord had a right to khas possession, that raises a question of fact whether the bataidars had actually been dispossessed. If there was a dispute regarding possession of land likely to cause a breach of the peace, and requiring a definite decision regarding the possession of land, the normal procedure for the Magistrate to follow was that laid down in Section 145, Criminal P.C., unless the claim of one party is on the face of it a mere pretence so that it can be said that there is no real dispute. There is a discussion of Sections 107, 144 and 145 in Musammat Dulhin Sona Kuer and Others Vs. Maulvi Jamil Ahmad, where it is pointed out that:

In order to avoid the taking of evidence and the making of a definite order u/s 145 a summary procedure u/s 144 has been substituted in very many cases in which without possible doubt proceedings u/s 145 should have been taken....The substitution of proceedings u/s 144 for proceedings u/s 145 appear to us to have no logical object whatever save to avoid the labour of the taking oral evidence of possession.

These Sections were again considered by a Pull Bench of this Court in Shebalak Singh v. Kamaruddin Mandal AIR 1922 Pat 9 where it was pointed out that though a Magistrate''s powers u/s 144 are very wide the Court must deprecate the habitual and unjustifiable use of Section 144 as a substitute for Sections 107 and 145. And if it is found that the use of Section 144 instead of Section 107 or Section 145 was a mere abuse of the process of the Court, or that owing to the exercise of that jurisdiction the order has-resulted in something akin to the denial of the right of fair trial, then, as pointed out by Mullick J. this Court would have felt bound to interfere in the exercise of its powers of superintendence. The Magistrate''s order does not show that there had been in January 1939 any admission by the present petitioners or disclaimer by them of rights to the land.

The petition of compromise dated 19th January 1939 does not show whether the pleader who signed it had any authority to act for any members of the second party other than Jamuna Singh. In my view, this case is analogous to that in Musammat Dulhin Sona Kuer and Others Vs. Maulvi Jamil Ahmad, and I propose to pass an order similar to the order passed in that case. The notices issued to the parties calling on them to state their claims in respect of the land in dispute are, as in that case, in effect the notices contemplated in Section 145. In response to those notices the parties have appeared and filed written statements and documentary evidence in the manner indicated by Section 145. But, as was stated in that case,

under the pretence that the proceedings were u/s 144 the Magistrate did not proceed under Clause 1 of Section 145(4), but decided upon a summary inspection of the documents before him that one of the parties should remain in undisturbed possession for two months.

It was there held that the original order was in substance an effective order u/s 145 and the Magistrate was ordered to proceed to complete the proceedings instituted by that action. The written statements already filed are to be considered; any documents filed, if they are to be used as evidence, must be marked as exhibits. The Magistrate must hear such evidence as the parties may adduce and he will then make an order u/s 145(6) or u/s 146 in accordance with his finding upon the question which of the parties was in possession on the date the notices issued that is 15 July 1939. The rule is made absolute.