Kameshwar Tiwary and Others vs Bishnudeo Jha and Others

Madan Mohan Prasad, J.—This is an application for quashing an order simultaneously starting a proceeding u/s 145(1) of the Code of Criminal Procedure (hereinafter referred to as the ''Code'') in respect of certain lands and attaching the same u/s 146(1) thereof.

It appears that on the 26th November, 1975, a proceeding between the parties was started u/s 144 of the Code in respect of the lands in dispute. This was converted into a proceeding u/s 145 of the Code by an order dated the 12th January, 1976. The order further, stated that it was a case of emergency and, therefore, the lands were attached u/s 146(1) of the Code. It appears that the parties had filed their petitions showing cause in the proceeding u/s 144 of the Code. The first party (opposite party) claimed to be In possession of the lands as sikmidar and on the g round that he was recorded in the recent survey record of rights as such. The second party (petitioners) claimed that petitioner No. 2 had purchased the aforesaid lands from one Bishwanath Pathak who is so recorded in survey papers and is admittedly the raiyat of the lands in question. Further it was contended on behalf of the petitioners that there had already been another proceeding u/s 145 of the Code and the petitioners'' vendor had been declared in possession of the lands in question by an order dated the 22nd February, 1965. The petitioner, therefore, objected to the proceeding being converted into one u/s 145 of the Code.

After hearing the parties and going through the materials produced before him, the Magistrate rejected the contentions of the parties with the result stated earlier. Hence, this application.

Counsel for the petitioners has urged that the learned Magistrate acted illegally and without jurisdiction in starting a second proceeding u/s 145 of the Code when there had been an earlier proceeding declaring the possession of the vendor of petitioner No. 2 and rejecting the case of possession put up by the opposite party.

It is not disputed that there was earlier a proceeding u/s 145 of the Code between the vendor of the present petitioner No. 2 and the opposite party.

The first question, therefore, is whether the present parties and the parties to the earlier proceeding are the same. The point need not betain me, for it is obvious that the present petitioner No. 2 claims to have derived title from her vendor and since she stepped into the shoes of her vendor, she will be deemed to be a party to the earlier proceeding. Learned Counsel for the petitioners in this respect placed reliance on the decision of a learned single Judge of this Court in the case of Radha Krishna Prasad Sao v. Lalgopal Bose and two Ors. 1968 P.L.J.R. 165. The proposition is so obvious that it does not require any authority.

The second question which arises and has been raised here on behalf of the opposite party is whether the lands are the same. The point arises be cause the learned Magistrate mentions in his order that the copy of the order of the earlier proceeding showed that the lands in dispute in that proceeding were plot Nos. 448, 449, 450 and 460 whereas in the present proceeding plot Nos. 448 and 450 are not in dispute. The case of the petitioners before the Magistrate was that in the order there were typographical errors inasmuch as plot Nos. 458 and 459 were typed for plots 448 and 450. The learned Magistrate does not appear to have probed into the matter further. It appears, however, that the learned Magistrate was conscious of the fact that cadastral survey plot No. 109 was divided into four plots during the revisional survey and they were numbered as plot Nos. 449, 458 and 460: the plots which are in dispute in the present proceeding. It appears next from the show cause petition filed on behalf of the opposite party that the objection taken was, to the effect that the order in the previous proceeding disclosed plot Nos. 448, 449, 450 and 460 and plot Nos. 458 and 459 were not in dispute in the earlier proceeding. It appears however, from the same show cause petition that the dispute even on the earlier occasion was admittedly regarding the land of cadastral survey plot No. 109 and thus with respect to the very plots which are in dispute now. The opposite party had stated in their show cause petition that the plots in dispute in the present proceeding were ordered to be attached and an inquiry was made and a Sikmi khatian was prepared in the name of the opposite party and hence Bish wanath Pathak the vendor of petitioner No. 2 had filed a petition u/s 144 of the Code, on the earlier occasion. Further it appears from the said show cause petition that the claim was that the lands of cadastral survey plot No. 109 were recorded in the name of a Mahanth which was cultivated on batai basis by the opposite party because the Mahanth himself could not cultivate the lands. It is on this basis that the opposite party has claimed to be sikmidars. The learned Magistrate does not appear to have considered these matters at all. m any case, apart from these statements of the opposite party, no specific denial was made before the Magistrate that the dispute in the earlier proceeding did not relate to the very same lands which were originally under cadastral survey plot No. 109 and now under revisional survey plot Nos. 449, 458, 459 and 460 ; as is the specific case made out by the petitioners. There is no affidavit filed even in this Court challenging the aforesaid fact. It seems to me, therefore, that there is no basis for this contention and in the circumstances of the present case, it cannot seriously be urged that the lands in the two proceedings are not the same.

That brings me to the question whether the Counsel''s contention that the order u/s 145(1) of the Code in the present proceeding is without jurisdiction, or illegal or improper. In this connection, I may mention that admittedly the order in the earlier proceeding was against the opposite party. It is also not disputed that the opposite patty did not go to the civil court even after having been prohibited to interfere with the possession of the petitioner''s vendor.

Coming back now to the question as to whether the order is illegal or without jurisdiction, learned Counsel has placed reliance on the decision in the case of Radha Krishna Sao (Supra). In that case also there was an earlier proceeding u/s 145 of the Code between the petitioner and the vendor of the opposite party and an order favourable to the opposite party''s vendor was made. A fresh proceeding within 18 months of that order had been started. The learned Judge quashed the proceeding on that ground. The other decision on which reliance was placed by learned Counsel is the case of Mahendra Bhagat and Ors. v. Bacha Pandey and Ors. 1959 PL.R. 21. Thare it was urged that there was no bona fide dispute because the predecessor-in-interest of one of the opposite party there had lost in the Civil Court. The learned Judges accepted the argument. It is contended on this basis that if one of the parties has been held in a proceeding u/s 145 of the Code as not being in possession of the land an order having been made in favour of the other party, the claim raised by the party which had lost the earlier proceeding cannot be said to be bona fide.

The point as to whether a Magistrate has jurisdiction to start a second proceeding has been directly in issue in some of the decisions of this Court, which will refer to presently. The earliest one is in the case of Krishna Dayal Gir and Anr. v. Nirmali and Anr. AIR 1971 Pat 220 decided by Mullick, J. In that case there was an earlier proceeding u/s 145 of the Code resulting in the first party haying been declared to be in possession, a dispute arose and instead of taking action u/s 107 of the Code, the Magistrate had decided to take action u/s 145 of the Code. It was contended that the Magistrate had no such jurisdiction to start a second proceeding so long as the first order remained in force. The learned Judge held that the Sub-divisional Magistrate had no jurisdiction to initiate a fresh proceeding between the same parties. The next case in which the question arose is the case of Bajit Lal Pathak and Ors. v. Harakh Singh and Ors. AIR 1920 Pat 211 In that case again the proceeding included a piece of property which was in dispute in the earlier proceeding. Adami, J. said that by initiating a fresh proceeding relating to the claim of possession of the lands covered by the earlier proceeding, the Magistrate acted without jurisdiction. Next, we find the case of Raghunandan Pande v. Krishna Mohan Singh 10 PLT 685. In that case Jwala Prasad, J., hold that once a proceeding u/s 145 is over, the question of possession is, so far as the Magistrate is concerned, set at rest once for all, and thereafter he should maintain the order by taking action under Sections 107 and 144 of the Code, as the case may be, against persons interfering with the possession of the party declared to be in possession; whether or not they were parties to the proceeding u/s 145 of the Code. Then comes the case of Jainath Pati Vs. Ramlakhan Prasad and Others, In that case against the same question arose and Wort, J., held that the order initiating a second proceeding was without jurisdiction. In that case reliance was placed on the earlier decisions of this Court in the cases of Bajit Lal Pathak (Supra), Krishna Dayal Gir (Supra) and the case of Raghunandan Pandey (supra).

Next comes a contrary decision reported in Inderdeo Singh Vs. Kesho Singh and Others, in which Dhavle, J., sitting single considered the aforesaid question. That was a reference by the District Magistrate for setting aside an order u/s 145(1) of the Code in view of a previous proceeding under the same Section having been decided against one of the parties concerned. The cases of Raghunandan Pandey and Jainath Pati (Supra) were cited in support of the reference. The learned Judge held that on the terms of Section 145 of the Code, it did not appear to be beyond jurisdiction. The learned Judge was of the view that such an order would not be without jurisdiction within the meaning of that term in its precise and technical sense as contained in Sub-section (1) of Section 145 of the Code. On the facts of that case, however, he found that the parties in the two proceedings were not the same and in any case, therefore, the order could not be said to be without jurisdiction.

In the case of Ambika Thakur and Others Vs. Emperor, a Division Bench of this Court consisting of Mohamad Noor and Dhavle, JJ., noticed the difference of opinion in this Court on the aforesaid question viz., whether a second proceeding u/s 145 of the Code is permissible, in the decisions in the cases of Raghunandan Pandey and Jainath Pati (Supra) on the one hand and Inderdeo Singh (Supra) on the other hand. The learned Judges laid down the general principle which is as follows:

The whole object of the section is to stop a breach of the peace by deciding which party is to remain on the land and which party is to seek his remedy in the Civil Court. Breaches of the peace will continue, and the object of the Legislature will be frustrated if the party who, has on the finding that he is not in possession of the successful party until eviction in due course of law, is allowed to interfere with the possession of the successful party and to plead once more that whatever the order might have been he is still in possession or has been able to regain possession by force, and thus either compel the successful party to go to the Civil Court or to coerce a Magistrate to proceed again u/s 145, Criminal P.C. This will be a definite encouragement to disobedience of order under the Section.

It is obvious thus that the learned Judges held that a second proceeding could not be maintained. I would next refer to a case of Baburam Rajeshwari Prasad Ojha and Others Vs. Deo Narain Sao and Others, , The same principle as laid down in Ambica Thakm''s case (supra) was accepted by K. Dayal, J. That again was a case of reference to this Court made by an Additional Sessions Judge and the same earlier cases of this Court were noticed and followed. The next case is Ramrachya Singh Vs. Singeshwar Rai and Others, where Shearer, J. held that where a Magistrate in an earlier proceeding u/s 145 of the Code had put a party in possession, he was bound to maintain his possession in a subsequent dispute. The learned Judge further said that the second proceeding would be without jurisdiction. The next case I would refer to is the case of Radha Krishna Prasad Sao v. Lalgopal Bose and two others (11) in that case there was an earlier proceeding between one party and the vendor of the opposite party and was disposed of in favour of the latter, and a fresh proceeding had been started in respect of the same matter between one of the parties. Shambhu Prasad Singh, J., in the above case held that the purchaser must be deemed to be a party to the earlier proceeding because his vendor was such a party and the proceeding must, therefore, be treated as between the same parties. The learned Judge further held that in view of the order forbidding one party from interfering with the possession of the other party in the earlier proceeding, it was highly improper for the Magistrate to second proceeding. In support of this proposition reliance was placed on the cases of Bajitlal Pathak, Ambika Thakur, Inderdeo Singh and Ramrachya Singh (supra).

A review of the cases aforesaid would show that in most of the decisions of this Court ones starting a second proceeding, where there had been an earlier proceeding, resulting in favour of one of the parties by which the opposite party was forbidden to interfere with the possession of that party until a competent court decided to the contrary had been held to be without jurisdiction. The only note of dissent was struck by Dhavle, J., who observed that the word ''jurisdiction'' was not used in same of those cases in a technical sense, but in a loose sense and that the requirements of Section 145(1) of the Code which spelt out the jurisdiction of a Magistrate do not contain this requirement. With very great respect to the learned Judge, the point which arose and was considered in some of the cases aforesaid had not been taken into account, viz., whether a party who has been forbidden to interfere with the possession of another party by a previous order u/s 145 of the Code can be allowed to say either that the order was wrong or that he was in actual possession on that date or that in spite of the order, he had been successfully and wrongfully in possession of that property without going to a competent court against the earlier decision in the proceeding u/s 145 of the Code, which was adverse to him. The answer to that is given in the negative by a Bench decision of this Court.

The question which seems to me, to arise is whether such a claim can be treated by a court of law to be a bona fide claim giving rise to a bona fide dispute as urged in the case of Mahendra Bhagat (supra). It is well known that u/s 145 of the Code, a Magistrate derives jurisdiction only from evidence of two facts, namely, the apprehension of a breach of the peace and secondly a bona fide dispute. It is well settled that where a dispute is not bona fide, but a mere pretence, a Magistrate has no jurisdiction to start a proceeding u/s 145 of the Code. It is obvious thus that a dispute which has already been settled once by a Magistrate u/s 145 of the Code so far as the Criminal Court is concerned, though temporarily, cannot be said, to be existing still, and the claim to be in actual possession by such a party to be a bona fide claim. Considered in this perspective, the order of a Magistrate starting a proceeding may be without jurisdiction, if the earlier proceeding had resulted in and order against the party forbidding interference with the possession of the other party. True it is that in most of the cases of this Court this specific reason was not given and yet the order was said by so many learned Judges to be without jurisdiction. This perhaps was the underlying reason for their coming to the conclusion that the order would be without jurisdiction. Speaking for myself, I do not see any reason for not saying that the order would be without jurisdiction in view of the absence of a bona fide dispute which is shown by the fact of dispute having been decided in an earlier proceeding. The jurisdictional facts itself being absent, it must be without jurisdiction. For the reasons aforesaid, I come to the conclusion that an order starting a second proceeding u/s 145(1) of the Code in such cases would be without jurisdiction.

I must, however, be cautious to say that I need not be misunderstood to mean that in all cases where there has been a previous order in favour of one party u/s 145 of the Code, the second proceeding under that Section would, be ipso facto without jurisdiction. It will depend upon the subsequent circumstances and the nature of the subsequent claim and other relevant facts regarding the question whether the dispute is bona fide. There may be fresh events subsequent to the order u/s 145 of the Code, which may lead to the conclusion that that order did not subsist or that the circumstances had changed, or that possession was claimed subsequently by the same party on account of some new cause of action, and in such cases surely, the existence of the previous order u/s 145 of the Code would not make the subsequent dispute to be mala fide or a mere pretence.

Assuming that I am not right in saying that it is without jurisdiction, in the technical sense of the term, there can be no two opinions as to the conclusion that the order is in any case improper and cannot be allowed to stand. It is well settled that where a party asserts to usurp the right of another or does wrongful acts of possession in a case where one party has been declared to be entitled to possession, the proper remedy is a proceeding u/s 107 of the Code against the wrong-doer and not to reopen the question of actual possession which has already been decided.

.17. In the present case the circumstances are that the matter in controversy in the earlier proceeding and the subsequent proceedings were the same, that the basis for the claim of the opposite party was the same, the petitioners'' claim was on the basis of his predecessor-in-interest, that the earlier order had been passed against the opposite party forbidding the opposite party from going upon or near the disputed land till evicted by a competent court and that admittedly the opposite party did not go to any competent court against this order. There is thus no escape from the conclusion that in the present case, the order starting the second proceeding is without jurisdiction, and in any case, improper,

In the result, the application is allowed and the impugned order dated the 12th January, 1976 of the Sub-divisional Magistrate, initiating the proceedings is hereby quashed.