Jalim Mian vs Raghunath Prasad

C.P. Sinha, J.—Jalim Mian, who is the first party in a proceeding u/s 145 of the Code of Criminal Procedure (herein-after referred to as "the Code") in the Court below, has filed this revisional application for quashing of the Magistrate''s order, dated the 22nd April, 1972, whereby he has initiated the proceeding between the parties in respect of the disputed land consisting 2 kathas on the southern side of plot No. 984, under khata No. 132, within Ramgarhwa Bazar, in the district of Champaran (the total area of the plot being 3 kathas 19 dhurs). This proceeding appears to have commenced in the following circumstances. Regarding the disputed land, a proceeding u/s 107 of the Code was stated against the petitioner Jalim Mian. That proceeding was between Jalim Mian, and Raghunath Prasad and others. On the 9th September, 1971, the Magistrate heard Jalim Mian on his petition to start a similar proceeding u/s 107 of the Code against the opposite party, Raghunath Prasad and others, as an apprehension of breach of the peace was alleged at their hands also. On that day, the Magistrate called upon the other side to show cause by the 24th September, 1971 why a proceeding u/s 107 of the Code should not be drawn up against them. In due course, they showed cause and both sides heard on the 24th March, 1972, and orders were reserved for the 22nd April, 1972, with a direction to the parties to file their documents in the meantime. On the 22nd April, 1972, the Magistrate passed the impugned order. Since the dispute related to land and, notwithstanding the previous rule u/s 144 of the Code having been made absolute against Raghunath Parasad as also pendency of a proceeding u/s 107 between them, the controversy continued and gave rise to an apprehension of breach of the peace, the Magistrate thought it worth* while to initiate a proceeding u/s 145 of the Code to decide the matter once for all. On those reasons, he decided to draw up the impugned proceeding and called upon the parties to file their written statements, affidavits and documents in support of their respective claims by the 25th May, 1972. Simultaneously, he attached the lard in dispute u/s 145(4) of the Code. Being aggrieved by this order, the petitioner Jalim Mian has preferred this revision to have it set aside.

The case of the petitioner is that, by virtute of a a private partition between the two owner branches of this plot No. 984, which took place in 1945, the disputed had (southern 2 kathas) fell to the share of two brothers, Maimuddin and Zainuddin, who subsequently (in 1952) gave it in usufructuary mortgage to one Thakur Sah. On the 4th January 1963, the said mortgagors sold it to the petitioner under a registered sale deed for Rs. 1,500/-, out of which the vendee paid Rs. 700/- in cash to the vendors and Rs. 800/- to the mortgagee, which had been left in deposit with him (vendee) for such payment. Thereafter, the petitioner got into physical possession of this land and has been enjoying it since then. In the partition of 1945, the northern 1 katha 19 dhurs of this plot had fallen to the share of the other branch Noor Mohammad, who subsequently sold 5 dhurs each to two different persons and on the rest inducted tenants. Subsequently, there was a proceeding u/s 144 of the Code between the petitioner and the opposite party with respect to this land which was eventually made absolute against the opposite party on the 26th August, 1971. While that proceeding u/s 144 was going on, the opposite party filed Title Partition Suit No. 114 of 1971 in the court of the Subordinate Judge at Motihari against the petitioner and others as defendants. In that suit, which, is still pending, the opposite party has sought for a declaration of his title to 2 kathas 15 dhurs of this plot by virtue of its purchase from Noor Mohammad''s daughter, Fatima, on the 26th April, 1971, and also for being put in possession thereof by '' getting the same separately carved out at the spot through a pleader commissioner. In that suit, the opposite party (plaintiff) also prayed for injunction against the defendants restraining them to make any construction on the suit land. The interim order of injunction in that suit was subsequently made absolute against the defendants on their giving an undertaking not to make any construction on the land during the pendency of the suit.

In the show cause filed by the opposite party in this revision, he has tried to show how he had acquired title to and possession over the 2 kathas 15 dhurs of the disputed plot by virtue of his purchase from Fatima on the 26th April, 1971. His assertion is that in the proceeding u/s 107 of the Code pending against this petitioner, when the Magistrate, on being approached by the petitioner to rope in the opposite party in a similar proceeding, felt satisfied regarding the existence of a bona fide dispute concerning this land, which was likely to result in a breach of the peace, he was perfectly justified to initiate the present proceeding u/s 145 of the Code to settle the point of physical possession between the parties as it still continued to be the live issue in the matter.

Mr. Rami Kant Verma, appearing for the petitioner, has urged the following points as his grounds for quashing of the impugned order. The first is that, in view of the opposite party''s claim for partition in the above Title Partition Suit No. 114 of 1971 based on his admitted case of joint possession of the parties over the land in suit, coupled with his prayer for delivery of possession of his share after getting it carved out at site through a pleader-commissioner, it was not open, at least not at all proper, for the Magistrate to initiate a proceeding u/s 145 of the Code in respect of. the same subject matter. Secondly, since the Civil Court is already seized of his partition suit regarding this land, in which injunction has also been granted against the defendants, including this petitioner, the parties'' remedy for relief in respect of this dispute lies with that Court, and an action u/s 145 of the Code in the matter must be held to be quite misconceived and against law. Thirdly, since the Magistrate had already started a proceeding u/s 107 of the Code against this petitioner regarding this dispute, the appropriate course for the Magistrate was to take similar action against the opposite party, on the petitioner''s complaint of apprehension of a breach of the peace at his hands, and not to convert that complaint into the impugned proceeding u/s 145, which was unwarranted in law.

So far as the third contention of Mr. Verma is concerned, it seems to be without substance. From the impugned order itself it will appear that this is not a case of conversion of the petitioner''s complaint against the opposite party into a proceeding u/s 145 of the Code. On the other hand, the Magistrate can well be taken to have considered the question of taking steps u/s 145 of the Code irrespective of that petition of the petitioner in which he prayed before him for binding down the opposite party also u/s 107 of the Code, alleging apprehension of a breach of the peace at their hands. In this connection Learned Counsel pointed out that such an action against the opposite party was also called for because the Magistrate had already initiated a proceeding u/s 107 against the petitioner. As stated earlier, while hearing the grievance of the petitioner on his petition, since the Magistrate found that the dispute between the parties related to land and, notwithstanding the fact that the rule u/s 144 of the Code had been made absolute against the opposite party Raghunath Prasad, the apprehension of a breach of the peace still persisted, in spite of the proceeding u/s 107 of the Code going on between the parties, he thought it expedient to start a proceeding u/s 145 of the Code to decide the question of possession once for all. It is, therefore, not quite correct to say that the Magistrate, while starting the proceeding u/s 145 of the Code, had simply converted the petition of the petitioner for action u/s 107 against the opposite party into a proceeding u/s 145, without in any way applying his judicial mind to find out if the necessary requisites for starting such a proceeding were there to justify his doing so.

The argument on behalf of the petitioner that, because the Magistrate had already taken steps u/s 107 of the Code against him and that proceeding was still pending between the parties, the only course open to the Magistrate was to start a similar proceeding against them also, when the petitioner had made a specific prayer to that effect, cannot be taken to be well-founded. The further submission of the petitioner that, in the above circumstances, the Magistrate was not empowered to start the proceeding u/s 145 also appears to be without merit. The power of a Magistrate to start a proceeding u/s 145, if necessary requisites therefore, as enjoined by law, are found satisfied cannot be doubted. Merely because a proceeding u/s 107 between the parties was pending at that time, the jurisdiction of the Magistrate to initiate such a proceeding could not be ousted, if on materials produced before him he was satisfied about its necessity. Sub-section (10) of Section 145 of the Code specifically lays down that "Nothing in this Section shall be deemed to be in derogation of the powers of the Magistrate to. proceed u/s 107''''. This means that the power of the Magistrate to proceed u/s 107 notwithstanding the pendency of a proceeding u/s 145 between the parties, is there. On this provision, the power of the Magistrate to initiate a proceeding u/s 145 in an appropriate case, even though a proceeding u/s 107 between the parties is pending, can well be assumed in law. A similar view appears to have been taken by Wasi-uddin, J. in (1) Kaushal Kishore Singh V. Rambrikasha Singh (Criminal Revision No. 2614 of 1962, disposed of on the 15th December, 1969). In that case, the learned Judge negatived the contention of the petitioners that, since a proceeding u/s 107 of the Code had been going on between the parties, there should have been no proceeding u/s 145, and held that the power of the Magistrate to start proceedings under both the sections simultaneously, if, on materials produced before him, he was satisfied about taking such action, was not barred. The Single Judge decision of this Court in (2) Mathura Singh V. Ramakant Missir (1972 Bihar Law Journal Reports 365), relied upon by the Learned Counsel for the petitioner in support of his contention, to my mind, is not helpful to him for this proposition. The observations in that case, on which Learned Counsel for the petitioner has placed reliance, are to the effect:

"It may also be recalled that a proceeding u/s 107 of the Code is pending before the same Magistrate with regard to the same subject matter. The petitioners are the same. It is true that all the members of the opposite party of the instant proceeding are not represented in that proceeding as opposite party, but that would not make much difference. It is open to the Magistrate to add such members also as party to the proceeding u/s 107, as he may think necessary. It is inadvisable that there should he multiplicity of the proceedings."

A perusal of the judgment will show that the above observations of the learned Single Judge were, more or less, in the nature of obiter, in the context of the facts of that case, and, as they stand, they cannot be regarded as laying down any general principle of law on this subject. Moreover, as I have already pointed out with reference to the provisions of the relevant statute, under law-there is no bar to the powers of the Magistrate to initiate proceedings both u/s 107 and u/s 145 of the Code simultaneously between the parties, provided he has necessary and justifiable reasons for doing so.

So far as the above contentions of the petitioner are concerned, his counsel, Mr. Verma, at the very outset of his arguments made it clear that he should not be understood to argue that be is challenging the initiation or maintainability of the impugned proceeding merely for the filing and pendency of the aforesaid title civil suit; his challenge is, however, based on the ground that it is improper and uncalled for for (Sic) the reason that in that suit this opposite party as plaintiff has himself averred his joint possession of the suit property, which undisputedly includes the land forming subject of this proceeding, along with this petitioner and others (defendants), and one of the reliefs claimed is for physical partition of those lands and delivery of possession to him in respect of his share through court. Moreover, he (plaintiff) has already obtained injunction against the defendants restraining them from going upon the land and making any construction daring the pendency of the suit. On these undisputed facts, in counsel''s Submission, the Magistrate''s action in initiating this proceeding to decide the question of possession of the disputed land and its attachment till the disposal of the proceeding must be taken as quite unwarranted and improper.

Before I proceed to examine the other relevant facts of the case, I would like to refer to the two authorities cited on behalf of the opposite party, namely (3) Sajjan Singh son of Jagan Nath Singh V. Sajjan Singh son of Bhairu Singh and another. [The 1970 unreported judgments (Supreme Court) 75] and (4) State of Bihar Vs. Hari Mishra and Another, , to meet the petitioner''s point regarding non-maintainability of the impugned action u/s 145 of the Code merely because of the pendency of a civil suit between the parties regarding the same subject-matter. As already observed, the petitioner''s counsel, during his arguments, has clarified that his objection to the impugned proceeding is not based purely on this score, but on other reasons also. In this situation, it does not seem necessary to probe and find out how far they negative the petitioner''s objection to the maintainability of the impugned proceeding only because of the pendency of that suit from beforehand.

In the above Patna case, the Division Bench held that "The pendency of a title suit between the same parties and with respect to the tame properties is no bar to the launching of a subsequent proceeding u/s 145, Criminal Procedure Code, if there is any apprehension of breach of peace in the meantime, and once such a proceeding is drawn up, it has to be disposed of according to law, unless the Magistrate would decide to stay the proceeding till the disposal of the title suit." In this case, the Bench was considering the competence of the Magistrate to refer the case u/s 146 (1) of the Code to the Civil Court, without drawing up the statement of the facts of the case and without expressing his opinion that he was unable to decide the question of possession.

The relevant order of the Magistrate in that case read as under :--

".... Heard lawyers of both parties. Admittedly there is a title suit pending between the parties in which the question of possession will be gone into. It is, therefore, not desirable for this Court to take up consideration of the question in this proceeding, I am fortified in this view by Rugga Natha V. Moona Nanda AIR 1959 Raj. 153(1). The lands in dispute are attached u/s 146 Cr. P. C. Send the record to the Munsif Araria for needful. Parties directed to appear before him on 1.3.0(sic)."

In the Supreme Court case the dispute related to the house of Bhairu Singh, which he had vended to the appellant Sajjan Singh son of Jagan Nath Singh. Preceded by civil litigations between Bhairu Singh and Sajjan Singh son of Jagan Nath Singh as also Galab Kaur (wife of Bhairu Singh) Sajjan Singh son of Bhairu Singh got a proceeding u/s 145 of the Code started against (Sic) appellant Sajjan Singh son of Jagan Nath Singh. In that proceeding the Magistrate attached the house in question. The appellant then applied for dropping of the proceeding u/s 145. When this prayer of his was pending before the Magistrate, he filed a civil suit for a permanent injunction against Sajjan son of Bhairu Singh, and obtained a temporary injunction against him. The appellant then moved an application before the Magistrate on that basis for stay of the proceeding u/s 145. The Magistrate dismissed the said application and directed the Tehsildar to take possession of the house as a receiver. In revision against the order of the Magistrate, the High Court held that both the orders of attachment of the house and the appointment of receiver were valid and that the civil court''s temporary injunction had no effect upon the proceedings before the Sub-divisional Magistrate. The appeal by Special Leave was also dismissed by their Lordships of the Supreme Court and the case was remanded to the Sab-divisional Magistrate for decision of the proceeding before him.

On the above authorities, it has, however, been further urged for the opposite party that in the present case no interference by this Court with the impugned order is called for, because the Magistrate must be taken to have initiated it after being satisfied about its necessity to stop breach of the peace and the only course open to this Court is to reject this application and allow the proceeding to be dealt with in accordance with law to its termination in the court below, as had been done by the Supreme Court in the above case. I am unable to accept this argument. Had the facts of the instant case been the same or even similar to the facts of those cases, there might have been some force in this connection of the opposite party. But, from their facts as enumerated above it will be manifest that there is no meeting ground between them. In such circumstances, I am inclined to think that the decisions in those cases cannot be helpful to the opposite party to claim dismissal of this revision, leaving the decision in the matter solely into the hands of the court below. If the facts of the case justify revisional interference by this Court on merit, it has got to be done in the interests of justice. It has, therefore, to be examined if on merit of the matter such an interference is actually warranted or not. From the discussions hereinafter it will, however, appear that the order of the Magistrate initiating this proceeding in the background of the relevant facts cannot be held propel and justified.

Prior to the initiation of the impugned proceeding, this opposite party (plaintiff) had admittedly filed Title Partition Suit No. 114 of 1971, In that suit, he had prayed for declaration of his title and partition of his 12 annas share in the suit property and for its delivery of possession to him after getting the same carved out at site through a pleader-commissioner. It is also not disputed that in that suit the ad interim injunction granted in favour of the opposite party was made absolute on the 6th July, 1971 on defendants'' giving an undertaking that they were not going to make any construction on those lands during the pendency of the suit. The disputed land, which is homestead, situates in Ramgarhwa Bazar. In view of this injunction, there can be no question of this petitioner going upon the land to make any construction till the disposal of this suit. That being so, the question of any tension between the parties on this account cannot arise in the ordinary course. Moreover, there was already a proceeding u/s 107 of the Code pending against the petitioner in this matter. The Magistrate''s power to the similar action against the opposite party, in case be apprehended disturbance of public peace at the hands of the opposite party, was there. In other words, if, on materials before him, the Magistrate found that the opposite party was also cut to create mischief which was likely to give rise to an apprehension of a breach of the peace, he could well take steps to bind him down similarly. Regard being had to these facts, I do not think the Magistrate''s action in initiating a proceeding u/s 145 of the ''Code in the same matter can be held to be fully justified. The reasons which had weighed with the Magistrate to initiate impugned proceeding in the matter have already been mentioned. No doubt, as laid down by the Supreme Court in the case of (5) R.H. Bhutani Vs. Miss Man J. Desai and Others, , the satisfaction under Sub-Section (1) of Section 145 is of the Magistrate, and the question whether, on the materials before him, he should initiate a proceeding or not is, therefore, in his discretion. This discretion, as laid down in this authority, is, however, required to be exercised in accordance with well recognised rules of law in this behalf, and no hard and fast rule can be laid down as to the sufficiency of materials for his satisfaction. In the background of the aforesaid facts relating to the institution of the'' title suit by the opposite party, wherein he has himself admitted joint possession over the land in suit along with this petitioner, his prayer for partition of his alleged share and delivery of possession thereon through court, the grant of injunction against the defendants restraining them from going upon the land to make any construction thereon till the disposal of that suit, coupled with the fact that the Magistrate had already taken out a proceeding under - Section 107 of the Code against this petitioner and can do so against the opposite party if be found reasons for it. I am unable to accept that the Magistrate''s discretion in initiating the impugned proceeding had been exercised in accordance with tee well recognised rules of law in this behalf. As the matter stood, I think, if the opposite party needed any further remedy in connection with this dispute, he could well approach the Civil Court in the title suit for it. In my judgment, the Magistrate''s impugned action in respect of the disputed land, only on the above grounds, which, I have already observed, could not be regarded as having been taken in accordance with the well recognised rules of law, was not proper and justified. In the case of (6) Kamo Sharma V. Jagdambi Mahto 1968 Pat LJR 42, B. N. Jha, J. had held that, when the matter was pending in the Civil Court it was desirable that the parties should seek proper remedy before that court. In that case, the opposite party had brought a partition suit for partition of his 1/3rd share in the suit land, impleading the petitioners as defendants. His petition for appointment of receiver had been dismissed by the learned Subordinate Judge on the ground that the plaintiff was not in actual cultivating possession of the suit lands. In the meantime, a proceeding u/s 144 of the Code started on the 30th November, 1967 in respect of the suit lands, which was later converted into a proceeding u/s 145 of the Code on the 16th January, 1968. The petitioners moved this Court for quashing that proceeding and it was quashed, In holding so, learned Judge relied on an earlier decision of this Court in (7) Criminal Revision Nos. 1579 and 1461 of 1963 and 749 of 1964 (Harikant Prasad Singh V. Chandrika Singh) decided on the 29th November, 1965, In those cases also there was a previous partition suit between the parties and an application for appointment of receiver filed by the plaintiff Tejwanti Kuer had been dismissed by the learned Subordinate Judge on the 7th April, 1962 on the ground that actual possession over the disputed land was not with her. Narasimham, C. J., quashing the proceeding u/s 145 of the Code, observed as follows :--

"The primary object of initiating a proceeding u/s 145 of the Criminal Procedure Code is to prevent breach of peace and hold a summary inquiry for the purpose of ascertaining which of the rival parties is in actual possession of the property and to maintain the possession of that party until the rival party seeks appropriate relief in the Civil Court. But when the parties have already applied to the proper forum for the purpose of effectively giving final relief to them, there is no point in subsequently starting a proceeding u/s 145 of the Criminal Procedure Code. It must be left to the parties to seek an appropriate interim relief by way of injunction, appointment of a receiver, or otherwise, in the very Civil Court where the litigation is pending. Here such an interim relief was actually asked for and was refused to Musamat Tejwanti Kuer.''''

In the instant case, as already observed, the opposite party''s clear and specific averment in his previously instituted title suit, which is still pending, is that he is jointly in possession of this land along with the defendants, including this petitioner, and he has prayed for separate possession of his share by having it separated at site through a pleader-commissioner. It has thus clear that the opposite party did not make out any case of his exclusive physical possession of the disputed land to the exclusion of the petitioner. For the foregoing reasons, I am of view that the impugned order of the learned Magistrate initiating a proceeding u/s 145 of the Code cannot be regarded as proper and justified in law and does not deserve to be sustained. The application is, accordingly, allowed and the impugned order of the Magistrate, dated the 22nd April, 1972, passed in Case No. 348M of 1972, drawing up a proceeding u/s 145 of the Code and attaching the subject of dispute, is set aside.