Doulat Koer vs Rameshwari Koeri alias Dulin Saheba

Prinsep, J.—This is a case under sec. 145, Code of Criminal Procedure, in which the Magistrate has passed an order in favour of Mussummat Dulina Saheba, known as the first party. The rule has been granted on the application of Mussummat Doulat Koer, the second party, to show cause why the proceedings should not be set aside on the ground that they were taken without jurisdiction, inasmuch as they were inconsistent with the orders passed by the District Judge relating to the possession of this property. In the present state of the law, as we understand it, the power of revision to be exercised by this Court is limited to matters of jurisdiction, that is to say, to cases in which it-is found that the Magistrate by taking proceedings under sec. 145, has acted without jurisdiction. It is in that sense that we have to consider the point raised on this application.

The property which is the subject-matter of these proceedings has formed part of a litigation which has been taken up in appeal to Her Majesty in Council, and the result has been that the case was decided in favour of Doulat Koer by an order declaring that she is entitled to letters of administration in respect of the estate of her deceased husband. It seems to us that Dulin Saheba also holds a share in this property under a different title. In 1893, a Receiver was appointed to manage this property until the final results of that suit and, having regard to the order passed in favour of Doulat Koer, we must take it that the Receiver has been acting as on her behalf and in her interests. In December 1897, there was some interference on the part of Dulin Saheba in regard to this property, and the District Judge passed an order warning her to abstain from interference. Doulat Koer, having obtained an order in her favour, was consequently entitled to possession of this property, and we find that, on the 11th June 1898, she obtained an order from the District Judge of Gya declaring that, as soon as the Receiver shall have completed his accounts with reference to these properties, he should make them over to Doulat Koer. It further appears that, on the 29th August following when the Receiver vacated, possession of some sort was made over to her. On the 1st November the Magistrate took proceedings under see. 145 to determine the possession of this property so as to prevent a breach of the peace which, in his opinion, was likely to take place, and he has after a trial decided in favour of Dulin Saheba and against Doulat Koer.

Now the object of sec. 145, as we understand it, is to enable a Magistrate to intervene and to pass a temporary order in regard to the possession of the property in dispute to have effect until the actual right of one of the parties has been determined by any competent Court. It is consequently his duty, when that right has been declared within a time not remote from his taking proceedings under sec. 145, to maintain any order which has been passed by any competent Court, and, therefore, to take proceedings which necessarily must have the effect of modifying or even cancelling such orders, is to assume a jurisdiction which the law does not contemplate. In this case we have it, that, so late as the end of August, possession was formally given over to Doulat Koer. Nevertheless the Magistrate has found that Dulin Saheba obtained possession about the same time and that she and not Doulat Koer is shown to have been in actual possession, and he comes to this conclusion from evidence regarding the receipt of rents from some of the tenants between the end of August and the first of November. Dulin Saheba, as has already been mentioned, is a co-sharer in this very property and, therefore, it would be a matter of no difficulty on her part to obtain such evidence from persons who would be her raiyats certainly in regard to that right. Her title, we are told, is derived from one Mahadoo, who is said to have taken a dar-mokurari of the same property from Doulat Koer, the lease being given for the purpose of obtaining money to carry on litigation to the Privy Council, and Dulin Saheba is said to have purchased the dar-mokurari title from Mahadeo. It is not for the Magistrate in this summary proceeding to consider whether as against Doulat Koer, this confers a perpetual title to possession. The duty of the Magistrate was to carry out the orders of the Civil Court and to maintain those orders by assisting the possession of any person whose title is found by that Court. Under such circumstances, we are of opinion that the proceedings under see. 145 were without jurisdiction, and that the Magistrate on a breach of the peace being certified to him, ought to have contented himself with declaring that the orders of the Civil Court should be maintained, In this view we think that the proceedings under see. 145 were without jurisdiction and must be set aside, and the possession of Doulat Koer maintained until a competent Court awards possession to some other person.

Wilkins, J.

I generally concur in what has been said. I would like to add that it seems to me that the Magistrate was debarred from exercising jurisdiction in this matter under sec. 145; for, from 1893, when the Receiver was appointed, the Civil Court was in possession through that Receiver and on behalf of the parties to the suit, and that Court was not concerned with any claims of, or rights which may have accrued to any third party by reason of any assignment or transfer during the pendency of that suit. Any interference with that possession by any such third party would be a contempt of the authority of the Civil Court. When the Petitioner had been declared entitled to the property by the final decree in the suit, the Civil Court had no option but to give her possession of it, upon her taking out the usual letters of administration and, therefore, the order of the 11th June 1898, was not only a legal order, but it was the only order which could properly be made under the circumstances. The Court having been in possession of the property on behalf of the parties to the suit, was bound to give possession to the successful party in that suit. Anyone else entering into possession would be a trespasser. This being so, there remained practically no question of possession within the power of any other Court, such as the Court of the Magistrate, to decide. All that the Magistrate could do was to leave it to the Civil Court to dispose of the property and direct Dulin Saheba to assert her rights as she might be advised. It seems, therefore, quite clear that this was certainly a case in which the Magistrate had no jurisdiction whatever under sec. 145, Code of Criminal Procedure, and I agree in making this rule absolute.