Kirpal Singh and Others vs Hari Choudhury and Others

Varma, J.—This is an application against an order passed u/s 145, Criminal P.C., against the present petitioners who happened to be first party to the proceedings. The proceedings were in connexion with plot Nos. 33, 72, 85 and 87-457 of village Parora, Police Station Balia, in the District of Monghyr. The area of the lands in dispute comes up to 37 bighas odd. Two pleader commissioners were appointed, who as a result of their measurements divided the lands in dispute into various blocks. Block No. 1 contained plot No. 33 and a few other plots. Block No. 2 contained plot No. 72 and some other plots and block No. 3 contained plot Nos. 85 and 87-457 and some other plots. The order of the learned Magistrate declaring possession is as follows:

Considering all facts, u/s 145 (6), Criminal P.C., I declare the persons named in Clause 2 of the under mentioned table, to be entitled to possession of the lands mentioned against their names in Clause 1 of the table, until evicted therefrom in due course of law:

Land | In possession of (1) | (2) (1) Twelve bighas out | Basuki Ghaduhury under of Block 1, that is, the|the Malik Hari Pd. Chau- eastern and southern |dhry. portions of Block 1 | (2) Rest of Block 1 | Borhan Singh, Baiju |Singh and Dukhan Singh, |Maliks. (3)Blook 2 | Saudagar Singh, Uohit |Singh and Shyambahadur |Singh. (4) Block 3 | Basuki Chaudhry under |the Malik Hari Prasad |Chaudhry. I further forbid all disturbance of such possession until such eviction.

Now, looking at the proceedings and the order of the learned Magistrate, it is clear that the order includes lands outside the proceedings, and as was held in Sukhari Monia v. Ramkhelawan Thakur A.I.R (1923) Pat. 528, in a proceeding u/s 145, Criminal P.C., as regards a dispute concerning land, a Magistrate acts in excess of his jurisdiction if he deals with a larger area of land in his order than what is included in the proceeding and his order is liable to be set aside.

The proper course for the Magistrate was to confine his order to the plots'' mentioned in the proceedings. Evidently, at the time of passing the order, the learned Magistrate lost sight of the fact that the proceeding referred to the plot numbers and not to the block numbers and this has brought about the result which necessitates interference with the order passed by him. It appears that arguments were heard and judgment reserved in the case on 14th June 1938, and the judgment was delivered not earlier than 10th November 1938, and the learned Magistrate has observed at the foot of his order that for certain important administrative reasons the order could not be passed earlier. The delay in delivering the judgment might have led to the error of not conforming to the proceeding while passing the order about the disputed lands.

There is one more point, which has not been seriously contested by the learned advocate appearing on behalf of the opposite party, that the order relating to block 2 is not in order. Block 2, as will appear from the order quoted above, has been declared to be in possession of Saudagar Singh, Uchit Singh and Shyam Bahadur Singh; but it appears that by a petition dated 26th February 1938 Uchit disclaimed possession, and similarly Saudagar also disclaimed possession over any of the disputed lands. There is no mention of this matter in the judgment of the learned Magistrate but it appears from the judgment of the learned Sessions Judge that this point was agitated before him. If the petitions of Uchit and Saudagar were dealt with by the inquiring Magistrate, an order like the above could not be passed. In view of the order that I propose to pass, it is not necessary for me to deal with the other points raised by the learned advocate for the petitioners, namely that the inquiring Magistrate failed to notice an important document like Ex. 3 relied upon by the petitioners to show that Basuki (the second party) was a member of the joint family to which Hari Chaudhuri belonged.

For the reason that the order passed by the learned Magistrate does not conform to the proceedings issued in the case inasmuch as it extends to lands outside the proceedings, I would set aside the order of the learned Magistrate. The rule is made absolute.