Kali Pershad Gope and Others vs Dhodhai Gope

Jwala Prasad, J.—This is an application by the 2nd party against the order of the Magistrate, dated the 5th January 1921.

This order was passed on the application of the first party, dated the 9th October 1920, praying for an action u/s 107 against the petitioners for interfering with the possession of kamat lands of the first party in village Rasulpur. The petition was referred to the Police for enquiry, who reported that the lands in dispute are the kamat lands of the Zemindar of which the first party is the mustojir and that on the 9th October 1920, the opposite party forcibly cultivated about 200 bighas and sowed wheat and gram, and accordingly they prayed for an action u/s 107 of the Code of Criminal Procedure. The Police described the boundaries of the disputed land in one plot as follows:

East--Mouza Tatpur Banga.

West--Patti Babu Ugrah Mohan Thakur

North--Mouza Talsahadat,

South--Dadpur.

The petitioners claimed the entire disputed land as their kosht land and as being in their possession from the year 1315 or 1316, on the basis of a settlement made by the Malik, in respect of which they alleged that a rent suit was brought against them by the proprietors in the year 1911 which resulted in a compromise decree.

Thereupon the Magistrate directed two proceedings to be instituted: (1) u/s 145 of the Cede of Criminal Procedure, making six of the petitioners second party with respect to 41 bighas of land; and (2) against ten of the petitioners with respect to the remaining lands u/s 107 of the Code.

On the motion of the second party, this Court (Adami and Bucknill, JJ.) issued a notice calling upon the Magistrate to report if there is a dispute as to actual possession of the lands with respect to which the proceeding u/s 107 was instituted. The Magistrate in his report does not definitely give the information asked for, as to whether there is any such dispute or not as to actual possession of the lands, but be justifies the proceeding u/s 107 on the ground that the second party ''''cannot admittedly produce any documentary evidence and wanted to take possession by force." In the present case the second party does not Only claim possesion of the properties but have, as reported by the Police, really succeeded in taking possession of the lands prior to the Police arrived on the spot on the 9th October. Both the parties have referred to me the pleadings in the Civil Court and the decree and seek to put constructions favourable to each of them. I cannot be tempted into a construction of these document at this stage, for it is not desirable at this stage to enter into the merits of the claims of the parties. It does not matter in the least whether the title of the second party is good or bad. It is sufficient for their contention that there is a dispute as to actual possession. This is not a case of undisputed possession, which alone can entitle the Magistrate to institute a proceeding u/s 107. The Magistrate ought to have, just after the Police report and the cause shown by the second party claiming possession over the land, instituted a proceeding u/s 145 instead of trying to split up the disputed land included under one boundary in the Police report and starting two kinds of proceedings with respect to portions thereof. Such a distinction, if any, could have been done after a full enquiry and scrutiny of all the documentary and oral evidence offered by the parties, read with the Survey Record of Rights, u/s 145 of the Code. By this time the dispute could have been decided and the danger to a breach of the peace would have been effectively stopped permanently. Some complications have already arisen by the delay caused by the Magistrate. I am not concerned with that at present, but under the circumstances of the case I have simply to set aside the order of the Magistrate instituting against the petitioners the proceeding u/s 107 of the Code.