Kishori Jha and Another vs Anand Kishore Jha

Mullick, J.—The learned Sub-Divisional Magistrate''s proceedings were irregular from the outset.

We have not got the order of 19th December 1927 which is referred to in his order dated 17th January 1928. Section 144, Criminal P.C. provides that in certain contingencies the Magistrate may direct a person not to do any act which causes obstruction, annoyance or injury or risk of obstruction to any person lawfully employed or a, disturbance of the public tranquillity. The Magistrate may make this order ox parte or he may make it after issuing notice to the person concerned and hoar in the cause shown by him. But sometimes a Magistrate makes the order straightway ex parte and at, the same time orders the party affected to show cause. This does not seem to be quite regular because Clause (4), Section 144, provides that the party affected may show cause after the order has been made and then the Magistrate may either rescind the order or modify it.

However, in the present case it would seem from the order of 17th January 1928, that an order absolute was made ex parte in the first instance against the opposite party and therefore the two months'' time provided by Section 144 runs from 19th December and the order has spent itself.

The petitioners dissatisfied with the Magistrate''s order of 17th January in which he confirmed his ex parte order, made an application to the District Magistrate, who on 10th February 1928, declined to interfere. Then there was an application to refer the case to the High Court made to the Sessions Judge who on 15th February rejected the application.

The present application is made by the petitioners in revision u/s 439, Criminal P. C.

Having regard to the fact that the order of 19th December 1927, has spent itself no further proceeding with a view to setting aside that order will be effective; but I desire to bring to the learned Sub-Divisional Magistrate''s notice that it has been repeatedly held that ordinarily unless the facts are on the face of them quite clear a proceeding should be drawn up u/s 145 for the purpose of investigating the question of actual possession to land.

The learned Sub-Divisional Magistrate appears to have made the ex parte order of 19th December without any investigation and the order of 17th January 1928 did not improve matters because it was passed upon an inspection of the records without examining witnesses as to actual possession. If then there is still any further apprehension of a broach of the peace, the proper course will be to take proceedings u/s 145, Criminal P.C.,

I desire at the same time to observe that on 30th August 1923, Mahanth Bishambar Das obtained a decree on compromise against Bhagbat Das and Shivanandan Thakur and an ex parte decree aginst Anand Kishore Jha, the opposite party in the proceeding now before me. In that decree Bishambar Das obtained an order for recovery of possession of certain lands belonging to the muth in Kaitya. The defendants Bhagbat Das and Shivanandan Thakur were the persons concerned in resisting his possession in respect of those lands. Against Anand Kishore Jha there was a prayer for recovery of possession in respect of those lands. Against Anand Kishore Jha there was a prayer for recovery of possession in respect of the lands in mauza Kanigaon. These lands were covered by Schedule 2 in the suit, and the petitioners before me Kishori Jha and Aklu Jha have obtained a lease of the interest of Bishambar Das in respect of them. The petitioners, therefore, stand in the shoes of Bishambar Das and Anand Kishore Jha cannot be heard to say that he was in possession of the lands on 30th August 1923. Although the decree was passed ex parte against him, it must be assumed that notice of the suit was served upon him and the possession of Bishambar Das on 30th August 1923. cannot be challenged now.

It is urged that Bishambar Das acted fraudulently in obtaining the ex parte decree and also that while he was asking for recovery of possession the Court had no jurisdiction to give him a decree for confirmation of possession. In my opinion the charge of fraud cannot be examined in the present case, it is open to Anand Kishore Jba to take such steps as he considers necessary to get the civil Courts'' decree set aside; and as regards jurisdiction it is obvious that the Court had jurisdiction to pass a decree for confirmation of possession even though recovery of possession had been asked and the Court''s order cannot be challenged on the ground that it was a nullity.

It is, however, urged before me on behalf of the opposite party Anand Kishore Jha that even though it be admitted that Bishambar Das was in possession on 30th August 1923, it does not follow that he was in possession on 19th December 1927. Now, that is a matter which I do not propose to investigate All I desire to observe is that if a proceeding u/s 145 is instituted, the Court will assume that on 30th August 1923 Bishambar Das was in possession and that his possession has continued until the opposite party Anand Kishoro Jha disturbed that possession, if at all. So far as onus is concerned, it is upon Anand Kishore Jha, the judgment-debtor in the previous suit, now to establish that he was entered into possession by some means or other since 1923.

With those remarks the application is dismissed.