Jagernath Singh and Others vs Ramjas Singh

Dhavle, J.—In this case a rule was issued by Scroope, J., calling upon the lower Court to show cause why the matter should not be dealt with under 8. 145 instead of Section 144, Criminal P.C. The dispute between the parties related to the possession of about 14 bighas of newly accreted diara land. The police report was that the second party, now the opposite party before me, was in possession, and on a mass of materials before the Subdivisional Magistrate, that authority came to the conclusion that it was the second party that was in possession.

He therefore confirmed the prohibitory order u/s 144 as against the first party who are now the petitioners. The initial notice u/s 144 which was issued against both the parties is dated 1st November 1932 and the Subdivisional Magistrate''s final order is dated 1st December. It appears that in January the first party who had been unsuccessful before the Subdivisional Magistrate applied to the District Magistrate and on 24th January the District Magistrate came to the conclusion that there was no reason to interfere with the order of the Subdivisional Magistrate in favour of the second party. It was in these circumstances that the first party obtained the rule.

Mr. Sahay who appeared in support of the rule has urged that this is a case where there was a bona fide dispute regarding possession between the two parties and that in accordance with well known authorities the matter should have been dealt with not u/s 144, but u/s 145. Observations of that kind have undoubtedly been made in more than one decision of this Court; but the latest decision to which my attention has been drawn, Muni Lall Sao v. Gatti Ahir AIR 1925 Pat 514 , which is a decision of a Bench of this Court (Bucknill and Kulwant Sahai, JJ.), and which refers to the Full Bench decision of this Court in Shebalak Singh Vs. Kamabuddin Mandal and Others, shows that though where there is a bona fide dispute of possession between the parties, the Magistrate ought to proceed u/s 145 and not u/s 144, this Court will not interfere with the order u/s 144 after it has spent its force by reason of the expiry of the two months to which its effect is confined:

The observation of the learned Subdivisional Magistrate as regards the possession of the first party is simply an incidental observation in order to enable him to make an order u/s 144 This observation cannot have the force of an order u/s 145 of the Code and is therefore of no use in determining the question of actual possession, if the question arises in a sub sequent proceeding: see Muni Lall Sao''s case AIR 1925 Pat 514.

There is another reason advanced by Mr. Manohar Lall, who appears for the second party, why nothing further should be done by this Court and that is the decision of this Court in Karan Singh and Others Vs. Ram Kishun Lal, . My conclusion therefore is that it is unnecessary and undesirable to direct the Subdivisional Magistrate now to begin u/s 145, Criminal P.C.

His order u/s 144 has already spent its force, and his incidental observation regarding the possession will have little, if any, effect upon the question of actual possession if it should arise in a subsequent proceeding. The rule is therefore discharged.