Faitali Singh vs Musammat Ganapati Kuer

Jwala Prasad, J.—This is an application against an order of an Honorary Magistrate of Dinapore, dated the 25th September 1917, u/s 145 of the Code of Criminal Procedure, declaring the second party to be in possession of the land in dispute.

The first party represents the landlords and the second party are the tenants. The first party obtained a rent decree against the second party on the 19th December 1912. This decree was passed in the presence of the second party and was a contested one. The sale certificate was obtained on the 19th June 1912. The contention of the first party is that on the strength of the decree and the sale certificate obtained from the Civil Court, they applied to the Court for delivery of possession and accordingly possession was delivered to them of the land in dispute with the crop standing thereon by a Civil Court peon deputed by the Court. On the 23rd September 1916, in order to prove the delivery of possession, the first party filed the writ of the Civil Court along with a report of the peon Nabi Hussain, who is said to have delivered possession on the spot. Nabi Hussain was summoned as a witness on behalf of the first party; and on an application of the first party a Rubakar or letter was addressed to the District Judge by the Magistrate calling for the records mentioned in its margin. The note in the margin giving the specification of the papers is as follows:--

Ganga Dayal Singh and others--Appellants

versus

Musammat Ganpati Kuer--Defendants.

Case No. 2568 of 1910 disposed of on 19th December 1912.

Case No. 587 of 1914 disposed of on 23rd September 1917.

Disposed of by the Munsif, 2nd Court.

This Rubakar was returned to the Magistrate with a note of the record-keeper on the back of it saying--"that the Case Nos. 2568 of 1910 and 587 (2587) of 1914 is not found in the catalogue of Munsif, 2nd Court. It may be returned to the Court concerned for information." This was received by the Magistrate on the 12th September, and upon that date it was ordered to be shown to the Mukhtear of the first party for giving correct numbers of the cases. Neither the order-sheet nor the petition shows that this order was communicated to the Mukhtear of the first party. The date of the case was the 11th September and it was received on the 12th, and so it cannot be presumed that this order was at all known to the party concerned. On the 11th the case was adjourned to the 13th, so from the 12th to the 18th there does not appear to be any reason for presumption that the first party must have known of the order passed in the case unless it was expressly communicated to the first party. The result was that the original papers called for were not produced in Court. On the 18th September, the date fixed for the case, the first party put in another petition praying for an adjournment of the case as the original papers were not forthcoming, in order that they may be called for and proved by witness Nabi Hussain who was then present in Court. Babu Nabi Hussain peon could not possibly be examined without these original papers, and hence he was not examined. The Magistrate by his order on the top of the petition refused it, because the order of the 12th September was not complied with. As shown above no opportunity was given to the first party to comply with that order of the 12th September. On the 18th September, therefore, the case was disposed of without the evidence of the peon or the documents referred to above, whereby possession was said to have been delivered to the first party by the Civil Court. The Court decided, therefore, upon oral evidence of the first party, and came to the conclusion that possession, under the sale certificate, had not been given and decided this upon a contradiction in the statements of the Patwari and Chaukidar. The Magistrate disbelieved the Patwari witness for the first party for the reasons given by him in his order. But the question here is what would have been the effect of the papers which the first party wanted to prove in the case, and the evidence of the peon who is said to have given possession. Upon the evidence of the peon corroborated by the dakhl dehani or delivery of possession, the Court, notwithstanding the fact that it disbelieved the evidence of the Patwari and the Chaukidar, might have come to the conclusion that possession was actually delivered to the first party. If that were so, the Court necessarily would have held that the second party had no claim to possession over the property in dispute. Ordinarily the rejection of evidence in certain cases might not be accepted as a good ground for revision u/s 145 of the Code of Criminal Procedure, but the rejection of material evidence offered by a party, as in this particular case, to my mind, would be a refusal to exercise jurisdiction vested in the Court by section 145. There does not appear to be any laches on the part of the first party in the case. I am also impressed in this case by the fact that the second party contested the rent suit and that the decree was obtained in his presence in 1912. The rent decree was not satisfied up till 1914 and the plea of the second party as summarized by the Magistrate that he would have paid up the decree if he had known of the execution of the decree, does not appear to me to be tenable. I am also impressed by the fact that possession is said to have been delivered only in September 1916 and the present dispute arose just after the delivery of possession by the Civil Court, which, if proved, the Criminal Court is bound to respect and give effect to. It appears to me also that the first party did all that it could in order to secure the papers. The details given in the margin of the Rubakar appear to me to agree exactly with the certified copy. The record-keeper reported that the papers of the cases mentioned in the Rubakar were not traced in the catalogue of the Second Munsif''s Court but the decree was passed and the dakhl dehani was issued by Second Munsif. And although there appears to be no mistake in the number of the cases cited in the margin of the Rubakar, still the Magistrate by his order directed the correct numbers of the cases to be given. I, therefore, think that the Magistrate ought to have, on the 18th September when the case was first taken up, drawn the attention of the party to the report of the record keeper and tried to find out where the mistake was and why the papers asked for were not sent by the District Judge. In any case the Magistrate should have allowed an adjournment of the case, as prayed for by the first party, so that necessary steps could have been taken to get the papers. The case was taken up only six days after the first date of hearing, namely, the 11th September and so there does not appear to have been any delay of the case by the first party. I, therefore, with reluctance set aside the order of the Magistrate and remand the case to him in order that the first party may be given an opportunity to get the papers properly, proved, and also to examine the peon Nabi Hussain and then to decide the question of possession.

The costs, if already paid, will be taken into account in the final order of the Magistrate.