Gobordhan Das vs Suresh Chandra Mukherji and Others

Dhavle, J.—This rule must be made absolute. It arises out of a proceeding u/s 145, Criminal P.C., in which Mr. Flack, Subdivisional Magistrate of Dhalbhum, declared the second party to be in possession of the disputed land 23 acres out of plot No. 2 in Khatian No. 2, coming under the pradhani Khewat of mauza Keonla. The first party moved the Sessions Judge in revision, and the learned Sessions Judge did not by any means overstate the case when he observed "It appears that the learned Magistrate did not write the judgment very care, fully, and the language of the judgment in some places supports the argument that there were contradictory findings on the question of possession." For, even before dealing with the evidence, the Sub'' divisional Magistrate accepted the contention of the second party that the proceedings were bad in law because there was no likelihood of a breach of the peace, but went on to add that he did not think this was an incurable defect in the proceedings. In this he erred both in law and in fact, as has been well shown in detail by the learned Sessions Judge. Mr. Jha, predecessor of Mr. Flack, had ample material before him in the complaint of 19th August 1940 against the second party and the further petition filed by the first party on 22nd for apprehending as he did a breach of the peace and first dealing with the matter u/s 144, Criminal P.C. On 4th October Mr. Jha drew up proceedings u/s 145, in which he spoke of a land dispute which may lead to a breach of the peace; and this was done after hearing the parties, out of whom the first partyad in his application of 2nd September spoken of a serious likelihood of a breach of the peace. Mr. Flack erred in overlooking all this and was also clearly in error in thinking if he really did so that proceedings u/s 145 could be validly initiated or continued without an apprehension of a breach of the peace.

After dealing with the Evidence adduced by the two parties the learned Magistrate refers to the admitted fact that the second party was in possession--rightly or wrongly--"at the time of making the order"--it is by no means clear whether he meant the order of 22nd August (which, as will be seen later, would have been correct) or that of 4th September. He then says:

Only the question of possession is at issue, and the only point to be decided in this case is whether or no the first party was forcibly and wrongfully dispossessed within two months before the date of the order (Section 145(4), Proviso, Criminal P.C.). The allegations of the first party that they previously exercised possession appear to be true.

This would seem to imply an acceptance of the allegation of the first party that on 17th August 1940, that is to say, five days before the proceeding u/s 144 was drawn up, he was forcibly dispossessed by the second party. This allegation was apparently supported among other things by the evidence of a Deputy Magistrate, but the learned Magistrate has not clearly said that he accepted it. Though he considered the allegations of the first party as to previous possession to be true, he refrained from passing an order in his favour because he considered the "crucial point" to be "a question as to the rights of the Raja and the Pradhan," which was plainly contrary to the requirement of; Sub-section (4) that the decision is to be arrived at "without reference to the merits of the claims of any of the parties to a right to possess the subject of dispute," After observing correctly that the question (of right) was properly a matter for the civil Court and that he had already given his reasons for thinking that the proceeding was bad in law, he turned to the Pradhan''s right to settle the land in dispute and considered that he had no such right on the documents filed. On his own showing, he should not have dealt with this matter at all; and he has further fallen into error when he speaks of the Pradhan''s having the right to settle cultivated land and of neither party producing convincing evidence about the Pradhan''s right to settle the land with which we are now concerned. It is not disputed before me that the record of rights which are in Evidence show clearly that the Pradhan and the Pradhan alone had the right to settle the land in question with others for reclamation. Stick a settlement was made by the Pradban on 20th June 1940, and made for purposes of cultivation. The first party has, it is true, built a hut on the land, but this was ancillary to the purpose of cultivation. Because the learned Magistrate thought that the Pradhan had no right to settle the land in question, he proceeded to hold that the first party had not been wrongfully dispossessed. The dispossession was clearly wrongful, but the Magistrate''s view to the contrary made it Unnecessary for him to consider specifically whether or not it was also forcible, a point on which the decision of the case must turn.

The learned Magistrate next refers to what he calls three "peculiar points" which strike him, and then says "these and other similar aspects of the case make it seem probable that the contentions of the second party may be correct: that the settlement was a collusive one and the first party was merely trying to get an easy declaration of possession in the criminal Court." This hardly looks like an introduction to a definite finding of possession in favour of the second party, as the learned Magistrate has in fact meant it to be. His reasoning here is also not very easy to follow. One of the three peculiar points which struck him is that the first party filed a Section 144, Criminal P.C., petition. Why this should be regarded as peculiar I am quite unable to imagine; parties in possession not infrequently move Magistrates under this section, and the first party had already complained of offences under Sections 448, 379, 143, etc., against the second party. Another point that he refers to is that the police station is within a stone''s throw of the land and that the first party did not seek police aid as one would have expected him to do. But there are numerous occasions on which parties prefer to go direct to the Magistrate. His only other point was that the settlement alleged by the first party was made in the name of a student who does not live in the village; but the student had an adult brother-in-law to attend to his cultivation. How considerations of this kind could in reason lead to the conclusion that the settlement was a collusive one it is impossible to understand; and the learned Magistrate, who had already said on the evidence that the allegations of the first party that they previously exercised possession appeared to be true, now finds the settlement of the first party to be a collusive one because this party, though dispossessed, was not wrongfully dispossessed. If the first party did come into possession under the settlement from the Pradhan, it was plainly erroneous to ignore this on the ground that the settlement was "collusive," whatever this epithet may have been intended to convey in the context.

Mr. De who appears for the second party, the opposite party before me, has argued that this Court does not interfere in revision with findings of fact or exercise any wider power than would be exercisable in a second appeal under the Code of Civil Procedure. The power of the High Court in criminal revision is, however, not restricted by statute in any manner. But for the reasons given by Rankin C.J. in Fakir Chand Mondal and Others Vs. Madar Mondal and Others, the High Courts have laid it down as a rule of practice that they will not go into the evidence in such matters unless it is necessary to do so by reason of special circumstances or by reason of the character of the error of law. Mir. De has laid stress on Rankin C.J.''s observation that orders u/s 145, Criminal P.C., are merely "police orders to be made by Magistrate to quiet disputes and which are in no way final." But this again was not intended to negative the power of the High Court to interfere in revision in a suitable case. I cannot recall any order u/s 145 so full of inconsistencies and errors as in the present case. The order of the Subdivisional Magistrate must, therefore, be set aside.

Mr. De has further endeavoured to support the order of the Subdivisional Magistrate by urging that the period of two months mentioned in the first proviso to Sub-section (4) of Section 145 is to be counted backwards from the date of the proceeding u/s 145 and not from that of the proceeding u/s 144. Asa matter of fact, this contention, even if accepted, will not help the second party for the dispossession is dated 17th August, while the proceeding u/s 145 was drawn up no later than 4th October. But even apart from this, the order-sheet of the Subdivisional Magistrate shows that though the, proceeding u/s 145 was drawn up on 4th October, it was drawn up on the same materials as (and in continuation of) the proceeding of 22nd August u/s 144, except, of course, that parties had been heard in the meanwhile. In the circumstances the Magistrate dealing with the proceeding u/s 145 would have been obliged to hold--as James, J. put it in Saddique and Others Vs. Sheikh Mohid and Others, --that no evidence could be offered to show the possession of either party for the period during which the order u/s 144 was in force. The learned Judge referred to Joyanti Kumar Mukherjee v. J.B. Middleton 27 Cal. 785, a case in which the Magistrate had begun with a proceeding u/s 144 which was afterwards followed by a proceeding u/s 145. Under the former proceeding both parties had been prevented from going upon the disputed property, and the learned Judges came to the conclusion, in counting the period of two months, that the intervention of the Magistrate in order to prevent a breach of the peace could not be allowed to operate to disturb lawful possession and that the point of time with reference to which the possession of either party was to be shown in that case was to be the date when the proceeding u/s 144 had been started, the Magistrate''s intervention being taken to suspend the previous possession whatever it might be. In the present case the proceeding u/s 144 seems to have been intended to be no more than a forerunner of a proceeding u/s 145, and I am inclined to think that if the two months to be considered under the first proviso to Sub-section (4) should in such cases not be counted backwards from the date of the order u/s 144, manifest injustice might result to a party forcibly and wrongfully dispossessed in this period but more than two months before the date when the proceeding u/s 145 is actually drawn up.

The case must now go back to the Subdivisional Magistrate for disposal in accordance with the law. He will endeavour to arrive at dear findings regarding not only who was in possession on 22nd August 1940 (as a matter of fact there does not seem to have been any dispute that it was the second party that was in possession on this date), but also whether the first party had within two months next before this date been forcibly and wrongfully dispossessed, and whether in that event this party ought not to be treated under proviso (1) to Sub-section (4) of Section 145 as if he was in possession on 22nd August and 4th October 1940. The record of rights (relating to this plot, though it may not be a record u/s 132, Chota Nagpur Tenancy Act, is a record entitled to the presumption of correctness u/s 84 of the act and should not be overlooked.