Gulab Kuer and Another vs Ganouri Koeri and Others

Mohamad Noor, J.—This application is against an order u/s 145, Criminal P.C., passed in a proceeding between the landlords (first party) and some of the tenants (second party) of the village Noni Jalalpur in the District of Gay a. The landlords admittedly had certain bakasht lands in the village which were recorded as such in the settlement records. Then there are certain lands which were recorded as uncultivated land of the landlords. Some other lands which were recorded as raiyati lands of some of the tenants who no longer claim them were also in dispute and regarding them the version of the landlords was that they had abandoned them and they became their (landlords'') bakasht. All these lands form khatas Nos. 119, 18, 70, 71, 90, 91, 98 and 99. The landlords claimed all these lands and alleged that they have all along been in their khas possession., The tenants (second party), on the other hand, though they did not dispute that the lands were bakasht lands of the landlords, claimed that most of them were settled with them on batai by the landlords and had been in their possession. There were a number of plots of the said khatas which were not claimed by the tenants. The proceeding started at the instance of the landlord who asked that the tenants (second party) should be bound down as they were prepared to take forcible possession of their bakasht lands. At first it was one u/s 107, Criminal P.C., but was later converted into one u/s 145, Criminal P.C.

In the first written statement the tenants-(second party) claimed possession of the disputed lands without specifying which plot was in possession of which of the tenants. In a supplementary written statement however they specified this in the schedule. They did not lay any claim to plots 109, 158, etc., etc., and 5 bighas of gairmazrua land. About 22 tenants did not claim any portion of the disputed land, but the remaining members of the second party (about 37 in number) claimed some land or the other. The learned Magistrate examined a few witnesses on behalf of the landlord and a few on behalf of the tenants and held that all the lands of the said khatas excepting those which were not claimed by any of the members of the second party was in possession of the second party. He however did not specify which of the second party was in possession of which plot. The landlords first party moved the District Magistrate for reference to this Court. This was rejected. The first party has therefore moved this Court.

The procedure adopted by the learned Magistrate has been characterized by the learned District Magistrate as irregular but the irregularity being of a minor kind, he has held that on the whole the first party was not in any way prejudiced and therefore he has not referred the case to this Court. I do not for a moment suggest that one enquiry u/s 145, Criminal P.C., in a case in which the landlord claims a large number of plots to be in his possession while different sets of tenants claim different plots in their respective possessions separately is illegal or necessarily irregular. But when there is such a combination of the claims of different sets of raiyats against one landlord in one enquiry, the question of prejudice will have to be examined.

In my opinion the case is on all fours with the case in Ram Kishun Singh v. Foujdar Gope AIR 1937 Pat. 413. The first party have a just grievance in this respect. The proceeding did not specify which of the plots was claimed by which raiyat. Though in the supplementary written statement the tenants did specify which of the plots was claimed by which of them, the order was a general one. The judgment of the learned Magistrate does not show that he applied his mind to individual holdings. Then a case like this where a body of tenants rightly or wrongly claim a large area of lands as having been settled with them, there is always the danger that from general evidence conclusions will be drawn in respect of specific lands. The allegation of the tenants may be perfectly true, say in respect of 90 per cent, of the plots, but it may be false in respect of 10 per cent, of them. It may be that the case of the landlord that none of the disputed plots was ever settled with the raiyats was not true but on the other hand there is also the possibility that the claim of the raiyats that all the lands were settled with them ;may not be true. It was therefore essential jfor learned Magistrate to apply his mind to the case of each individual holding.

It must be borne in mind that according to the Record of Rights most of, the disputed lands were at the time of the survey in the possession of the landlord and settlement with the raiyats, if any, must have been made in subsequent years. The learned Magistrate ought to have considered the case of each settlement. The general enquiry has prejudiced the landlords in meeting the case set up by the second party. There will be another difficulty. Supposing for instance some of the members of the second party surrender their holdings, the landlord will be in difficulty to get possession of them in the absence of specifications of the lands in the order which is in favour of the second party as a whole. Then the landlord will be in difficulty if he wants to institute a civil suit against the order of the learned Magistrate. Taking all the circumstances into consideration I think that

I should pass the same order which was passed by Rowland, J. in the case above referred to. I am not unmindful of the administrative difficulties to which the learned District Magistrate had made a reference in his judgment. That difficulty is certainly great, specially as the disputes of this nature have become common. But it is all the more necessary that cases like this should be tried with utmost care with due regard to the individual cases and that conclusions should not be arrived at on general evidence.

I understand that the lands have been attached and are being managed by the Khas Mahal. As I believe that the case will be disposed of before the next cultivation season comes, I do not think that the order I propose to pass will cause any undue hardship to either party. I therefore set aside the order of the learned Magistrate and remand the case with these directions: The proceeding u/s 145 drawn up by the learned Magistrate should be amended. Those members of the second party who did not claim any portion of the disputed land should be discharged from the proceeding and their names should be expunged. Those plots of land to which no claim has been laid by any member of the second party, namely those which the learned Magistrate has found to be in the possession of the first party and any other plot which on examination be found to be unclaimed should be omitted from the proceeding. Lands, claimed by each set of the second party should be separately specified in the proceeding. Copies of the amended proceeding will be served upon the parties and also published in the locality.

Both parties will be entitled to file any supplementary written statement they think fit. The parties will then be allowed to adduce any additional evidence they desire to produce and then the learned Magistrate will dispose of the case in accordance with law. He must come to a conclusion in respect ef each holding separately.

I believe that the Magistrate who heard the case is still available in Gaya. If so, the case will go back to him to carry out the directions given above. There will not be a do novo trial. The evidence already adduced will remain on the record and utilized. If he is not available the District Magistrate will make over the case to some other Magistrate who will hear the case de novo on the lines indicated above.