Gobind Ram Marwari and Another vs Basantilal Marwari and Others

Jwala Prasad, J.—This is an application against an order of the Magistrate, dated 11th September 1927, making absolute a preliminary order u/s 144, Criminal P.C., against the petitioners. The order has been confirmed by the District Magistrate by his order of the 28th September 1927.

The subject-matter of the dispute consists of about 75 or 76 bighas of bakasht lands which belonged originally to one Parmeshwar Chaudhri. The contention of the first party is that the land in dispute was settled with one Chaman Chaudhri by a registered deed on 15th November 1922, who came into direct possession of the land in dispute and gave some portion of it on usufructuary mortgages, settled some portion and remained in khas cultivation of the rest of the portion. On 17th July 1927, he is said to have sold the entire disputed land to the first party by means of a registered deed for a consideration of Rs. 4,000. On the strength of these transactions the first party claims to be in possession of the land directly and through the mortgagees.

The contention of the second party is that the land in dispute appertains to the milkiat share of three annas of Parmeshwar Chaudhri in the village; that two annas 14 gandas of it was sold in execution of a decree obtained by the second party against Parmeshwar Chaudhri and others. The decree is said to be dated September 1925, and the dakhaldehani was obtained in April 1926. On the strength of this Court sale and dakhaldehani, the second party contends that they are in direct possession of the land in dispute. They impugn the transactions set up by the first party as being farzi and collusive.

According to the police report of 5th August 1927, both the parties were collecting lathials to commit a breach of the peace in connexion with the transplantation of paddy crop which was then standing on the land. Upon the report of the Sub-Inspector the Magistrate by his order of 6th August 1927, directed notice to issue upon both the parties u/s 144, Criminal P.C., directing them "not to come near the plots in question" and not to do anything in respect thereof that may cause a breach of the peace. He called upon the parties to show cause, if any, on or before the 16th August 1927. In the meantime the Sub-Inspector submitted as complete report promised in his first report. In this report the Sub-Inspector summarized the documentary evidence adduced on behalf of the parties as well as the oral evidence as regards the actual possession of the land respectively claimed by the parties. He concluded his report in the following words:

In fact both parties in order to overcome one another have managed to secure numerous documents in their possession. Inquiries disclose that the possession over the land is disputed, and both parties in order to take forcible possession are ready to create disturbance and break the peace. I, therefore, pray that both parties may be ordered to produce their respective claims which should be decided once for all u/s 145, Civil P.C.

While submitting this report to the Sub-Divisional Officer, the Inspector endorsed the opinion of the Sub-Inspector that action u/s 145 be taken. On 11th August 1927, the Sub-Divisional Magistrate disposed of the police report noting thereon that he had already taken action on the previous report, meaning the proceeding adopted by him u/s 144, Criminal P.C. On 16th August both parties showed cause. On 25th August the Magistrate heard arguments and perused the documents produced by the parties and reserved the passing of the final order after �considering the question thoroughly.

On 10th September the Magistrate went to the locality and "got hold of 18 men of Telia and 7 of Matukichak and asked them to state the truth." These persons stated to the Magistrate that Basantilal Marwari of the second party was in possession and the tenants paid rent to him, and that the first party did not get possession over the land directly or through tenants. Solely on the strength of the statement of these witnesses the Magistrate came to the conclusion that the first party was not in possession of the land and that he had knowingly "purchased litigation", and accordingly he made the order absolute u/s 144. The order in question does not refer in any way to the arguments or the documentary evidence produced by the parties and referred to by the Magistrate in his order of the 25th August. The Magistrate was clearly wrong in passing his order solely upon the statement of witnesses examined ex party and behind the back of the parties and without having given any notice to them of the local inspection that he held. Such a procedure is not sanctioned by law and has been rightly condemned by Sen, J., in In Re: Adbud Misser, . The learned District Magistrate has justified the procedure adopted by the Magistrate upon the ground that the proceeding u/s 144 is not a judicial proceeding. The District Magistrate also is in error in this view. Section 144 no doubt empowers a Magistrate to pass an ex-parte order in an urgent and immediate urgency, and the party against whom such an order is passed is entitled to apply to the Magistrate to rescind or alter the order made by him, and the Magistrate is bound to consider the cause shown by the party. Clause (5), Section 144 makes it imperative by saying that

the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the order; and, if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.

The order passed by the Magistrate is subject to the revisional jurisdiction of this Court under Sections 435 and 439 of the Code which implies that the proceeding adopted by the Magistrate u/s 144 is a judicial proceeding and the order passed by him is a judicial order. In the present case the Magistrate by his order of 6th August while directing notice u/s 144 to issue, called upon the petitioners to show cause, if any. The petitioners having showed cause the Magistrate was bound to dispose of it judicially, and not in the manner in which he has done by holding an ex-parte local inspection and examining witnesses behind the back of the petitioners. A judicial proceeding is one in the course of which evidence is or may be legally taken on oath Section 4(m). This in itself is sufficient to vitiate the order of the Magistrate and to set it aside.

He, however, has committed a further error in deciding and practically upholding the possession of a party under the cloak of an order in a proceeding u/s 144, when according to the police report the possession was a disputed fact between the parties. On 6th August 1927, the Magistrate might have been justified in directing an immediate order u/s 144 to issue when there was a report submitted to him of a likelihood of a breach of the peace. He ought to have stayed his hands and drawn up a proceeding u/s 145 when, on 9th August the Sub-Inspector submitted his further and complete report stating in the words already quoted that the possession over the land is disputed. The Magistrate has not come to any finding.

In fact, he did not direct his attention to come to a finding that the first party was clearly in the wrong and was threatening to usurp the rights of the second party and that the latter was in actual possession of the land in dispute and that the claim of the first party was a mere pretext and not a bona fide one. Upon the police report, which alone was the foundation of the proceeding u/s 144 adopted by the Magistrate, it was a clear case for adopting a proceeding u/s 145 of the Code under which it was the bounden duty of the Magistrate, when there was a dispute regarding land tending to a breach of the peace, to enquire into the fact of actual possession of the subject-matter in dispute. The word "shall" in Section 145 is mandatory, and what was pertinent and permissible in the initial stage of the police report, namely, to prevent a breach of the peace by an urgent order u/s 144 ceased to be so and the mandatory obligation u/s 145 was cast upon the Magistrate by the second report of the police disclosing a bona fide dispute as to possession of the property to start at once a proceeding u/s 145 of the Code. The law is clear and has been set at rest and the appropriate procedure to be adopted under the different Sections 107, 144 and 145 relating to the stoppage of a breach of the peace has been fully laid down in the Full Bench decision of this Court in Shebalak Singh Vs. Kamabuddin Mandal and Others, .

Yet another important fact seems to have been overlooked by the Magistrate that the dakhaldehani upon which the second party claims to have entered in possession of the land in April 1926, related to the zemindari share in the village of the judgment debtors Parmeshwar Chaudhri and others, namely, 2 annas-14 gandas. It included no doubt the kamat and the nijjote and other kinds of land. They, however, would go with the zemindari interest but were not specifically mentioned and described in the dakhaldehani in order to identify them with the bakasht land of 75 or 76 bighas in dispute in the present case. In other words, the civil Court dakhaldehani did not specifically refer to the lands in dispute which might or might not have passed into the hands of the second party purchaser.

The case of the first party is first the lands in dispute were settled with Chaman Chaudhri in 1922, three years: before the decree even of the second party, what to speak of the dakhaldehani: in April 1926. It is further the case of the first party that Chaman Chaudhri had mortgaged portions of the land is disputes and settled some portions with tenants-and was in khas possession in respect of the remaining. These contentions of the parties could not be appropriately decided in a summary proceeding u/s 144. I refuse to go into the merits of the case.

I set aside the order of the Magistrate, dated 11th September 1927, and of the District Magistrate, dated 28th September 1927. Although the order has spent itself by reason of lapse of two months, yet it is a case in which the order being prejudicial and not coming properly within the scope of Section 144 must be set aside. The Magistrate will in case of his being satisfied that there is still an imminent danger to a breach of the peace within the words of Section 145, inquire into the dispute under that section.