Dulare Kumar vs Subans Kumar

Ray, J.—The learned Additional Sessions Judge of Monghyr has made a reference to this Court recommending that the order passed by the Sub-Divisional Magistrate of Begusarai in a proceeding u/s 145, Criminal P.C. is liable to be set aside as being contrary to law.

The letter of reference contains a very careful analysis of the facts that led to the dispute and he has very clearly formulated the points on which the order of the Magistrate can be successfully challenged. I need do no more than give a very brief outline of the facts of the case in order to clearly bring out the points in dispute. The disputed properties consist of three classes of lands. They appertain to 15 gandas proprietary interest in tauzi No. 940 in village Fatehpur. They consist of 4 bighas 9 kathas 10 dhurs of bakasht land, 15 kathas 16 dhurs of ghairmazrua khas lands and 3 bighas 13 kathas 14 dhurs of raiyati lands. Admittedly the disputed property belonged to some members of the 1st party and Dularo, who is a member of the 2nd party, from the time of their ancestors. It appears that sometime in 1917 these properties were sold in execution of a decree in title execution case No. 147 of 1917 and was purchased by one Achambhit Thakur, admittedly a farzidar of Mathura Jha. Achambhit executed a deed of release in favour of Mathura Jha on 1-7-1926, and by two sale deeds dated 20-3-1934 and 6-1-1939, Mathura Jha sold them to Dulare. That is how Dulare claims the property to be his and also claims to have been in possession of himself and before him of his vendors since dakhaldehani which is proved (Ex-S) in the case. Out of the members of the 1st party, five people belonged to Dalare''s family being descendants of Teka Kumar, and it is not clear on record what constituted the interest of the other three who were included as members of the 1st party. This proceeding was first started on 11-6-1943, and the learned Magistrate by his order dropped the proceeding in relation to the jot lands and with regard to the rest, he expressed an opinion that the evidence on both sides was so equally balanced that he could not come to any finding and passed an order of attachment of the property u/s 146, Criminal P.C. Against this order, a criminal revision was filed in this Court, and the matter was sent back to the Magistrate with a direction that if necessary, he should allow the parties to adduce further evidence and should try to come to a finding as to which side is in possession.

On remand, the learned Magistrate recorded further evidence adduced by the parties and passed an order declaring the members of the 1st party to be in possession. The 2nd party moved the Additional Sessions Judge for making a reference u/s 438, Criminal P.C., and accordingly a reference has been made.

The order of reference points out several errors of law as vitiating the order of the Magistrate. I should deal with those points seriatim. The proceedings in relation to the raiyati holdings having been dropped, it was outside the jurisdiction of the Magistrate to declare possession of the 1st party in regard to these lands, and it is urged by Mr. Imam, who appears in support of this reference that this mistake vitiates the order of the Magistrate as a whole. In support of his contention he cites the authority of (23) 4 P.L.T. 372. In that case the real dispute as to possession was with regard to 4 bighas while the Magistrate passed orders about the possession of 6 bighas, and it was impossible to be sure with regard to any of the really contested area whether that was included within the proceedings or not. The whole order is, therefore, bad and must be set aside. Reliance is also placed upon the case in Kirpal Singh and Others Vs. Hari Choudhury and Others, . The relevant passage runs as follows:

For the reason that the order passed by the learned Magistrate does not conform to the proceedings issued in the case inasmuch as it extends to lands outside the proceedings, I would set aside the order of the learned Magistrate.

In view of the, facts of the present case, the argument takes this form, namely, that the tenanted lands having been dropped from the proceedings by the Magistrate''s first order, the present order declaring possession in respect of an area larger than that contained in the proceedings as they now stand is not in accordance with the proceedings, and, therefore, the order as a whole should be set aside. I do not quite agree with this contention in view of the particular facts of this case. In the cases cited there was hardly anything to" distinguish between the lands actually in dispute and the excess area in respect of which the question of possession was dealt with by the Magistrate. In the present case the raiyati lands are of quite different character and the evidence as to possession with regard to the other lands cannot be said to have been confused with the evidence in respect of these lands. I am unwilling to accept as an absolute proposition of law that where the lands, are distinguishable and the evidence of possession adduced in relation to them are also easily separable, they being of a different character,'' the Magistrate''s order with regard to the other lands in respect of which possession has been found with the party and which has really come within the ambits of the proceedings will not be sustained. In this view, I would accept the reference to the extent that the order of the Magistrate is in excess of the proceedings in respect of the raiyati lands, and his finding of possession with regard to the raiyati lands must be vacated.

But there are other errors and other points of law which vitiate the Magistrate''s order with regard to the other two classes of lands mentioned above. It has been pointed out in the matter of reference and has been found to be correct on examination of the record that the learned Magistrate in considering the evidence of possession has not taken into consideration the evidence of the witnesses who had been examined before the order of remand. It is a very serious error. The order of remand did not direct him to reject the evidence that was already on record. On the contrary, the direction of the Court was to come to a finding either on reference to the evidence already on record or on such evidence along with such further evidence as the parties might be given opportunity to adduce and might adduce. In this view, there, fore, his finding cannot be accepted as correct.

The third error pointed out by the learned additional Sessions Judge is that 3 out of 8 members of the 1st party disclaimed any interest in the disputed properties. The learned Magistrate, however, in declaring possession of the 1st party declares possession in their favour too. It is difficult to make out what is the basis of this order of his. Dr. Bannerji appearing in opposition and representing the 1st party wants to justify by saying that these people were bataidars of the other members of the 1st party. At any rate, that is not before me. It was for them to say so. This no doubt vitiates the order as a whole. If the learned Magistrate has relied upon the evidence which proceeds to prove possession in favour of the people who themselves do not claim to be in possession of the property, such evidence and the finding based upon that evidence is hardly inspiring and worthy of credence.

The next error pointed out is that the learned Magistrate has made absolutely no reference to the dakhaldehani Ex. S which I have already mentioned in favour of Achambit Thakur who was the benamdar of Mathura Jha, the vendor of Dular. This is a very important piece of document bearing directly on the question at issue. It is the duty of the criminal Court to support the delivery of possession given by the civil Court unless it is found on evidence that that possession so delivered by the civil Court has been subsequently disturbed and the party in whose favour the possession is declared contrary to the writ of delivery of possession got possession after dispossessing the party who obtained possession through Court. The learned Magistrate has completely overlooked this aspect of the case, and besides he had committed an error of record in referring and relying upon certain documents, namely, a decree in Title Suit No. 159 of 1928 and places reliance upon a passage which has been quoted in the letter of reference, namely, "I am not disposed to hold that Dakhaldehani was actually served at the spot. To me it appears that while Mathura and Achambhit had been creating evidence in their favour in respect of the suit land, actual possession was all along with the defendant (Khanro) whose possession was actually found by the Criminal Courts once in 1915 and again in 1928". On referring to the records of that case, it is clear that the lands referred to in this passage are the lands of Mirzapore and not Fatehpur. There can be no doubt that the learned Magistrate''s finding has been very highly influenced by his misreading of this document. Secondly, the Magistrate has also relied upon another passage which too has been quoted in the letter of reference and the passage reads: "It is curious that though Khanro Kumar, defendant 1, is mentioned as one of the judgment-debtors in Ex. 10, his name is not found in the writ of Dakhaldehani (EX. 4)". Here again the Magistrate cannot be acquitted of a serious mistake of record. He has fallen into the same error as the Munsif himself was from whose judgment he gives quotation. I have examined Ex. 1 myself which is the same as Ex. S here and in fact it does contain the name of Khanro Kumar as one of the judgment-debtors. On reading the learned Magistrate''s judgment it is clear that but for these documents and the passages occurring therein he should not have been inclined to declare the possession in favour of the defendants 1st party. As it is found that these references are completely wrong and do not refer to the property in dispute and he has misread the documents referred to therein, his finding can never be supported as good law.

In my view, therefore, the order of the Magistrate declaring the 1st party to be in possession cannot be supported. I therefore accept the reference and set aside the order of the learned Magistrate.