Lachmi Singh and Others vs Emperor

Jwala Prasad, J.—The petitioners are agnates of one Ram Charitar Singh, who died seven years ago in a state of separation from the second party. His property was succeeded by his widow Musammat Ramjhari Kuer. On her death, in February 1920, the property devolved upon her daughter, Musammat Indermani Kuer.

The present proceeding u/s 107 of the Code of Criminal Procedure was instituted on the 16th Marsh 1920 on a Police report to the effect that Lachmi Singh and others of the second party were interfering with the possession of Musammat Indermani Kuer over the property of her father, Ram Charitar Singh, inherited by her and that a breach of the peace was imminent. There was a notice u/s 144 of the Code issued against the second party on the 3rd March 1920.

The second party shall enged the proceedings instituted against them on the ground that Bam Charitar Singh died as a member of joint family and that the property after his death devolved upon them by survivorship, and that his widow and daughter did not sauced and had no right to succeed and were not in possession of the property. They went so far as to suggest that Ram Charitar Singh had a posthumous son born to him a few months after his death, with a view to defeat the right of the first party to the property in question. This has been found to be false by the Court below and need not be adverted to any more. The petitioners further claimed that the proceeding should be u/s 145 of the Code, and not u/s 107 inasmuch as the dispute was with regard to the possession of land.

Both the parties adduced evidence, oral and documentary. Admittedly, the name of the widow was recorded in the Collectorate Register D., soon after the death of her husband, Ram Charitar Singh, This shows not only separation of Ram Charitar Singh for the petitioners, but also the possession of his widow over the property in Question.

The application for the registration of her name was unopposed and was even verified by one of the petitioners. The receipts filed by the Musammat lead to the same conclusion, namely, her possession over the property and the separation of Ram Charitar Singh from the petitioners.

The evidence in the case is overwhelming and conclusive to establish the possession of the first party. There could, therefore, be no possible dispute as to possession of the property in question so as to justify a proceeding u/s 145, instead of Section 107.

The following passage in the judgment of the lower Court has been made the foundation of the strenuous argument of Mr. Pal that the petitioners could not be bound down u/s 107 of the Code:

It is true, no doubt, that there are no very definite allegations against each particular appellant, but they all belong to the party which wants to get Ram Charitar''s property by violence and no reason is alleged why some should be falsely implicated.

Reference on the same point is made to the remarks of the Trial Court in the last paragraph of its judgment to the effect that it is not necessary for the purpose of this case to prove definite specific acts against each individual of the second party, showing that each, severally, is likely to commit a breach of the peace, inasmush as their interest, as gotias of Ram Charitar Singh and as slaimants to the disputed property are amalgamated, and it would be sufficient to prove that, as a whole, or as a party, they are likely to break the peace, I must, at the outset, observe that as an abstrast proposition the Trial Court has overstated it and does not accord either with the evidence summarized by it in the preceding paragraph or the conclusion drawn by it. I think that the Trial Court does not really moan what it says and the order passed cannot be set aside upon the misstatement of law when the facts found really lead to the conclusion that the petitioners were determined to dispossess the first party or to interfere with her possession by wrongful means and acts. I stick to the view taken by me in the case of Ghasi Bam v. Emperor 49 Ind. Cas. 642 : (1919) Pat. 98 : 20 OLJ 194 That view was expressed upon a consideration of the authorities on the subject, notably Ajodhya Prasad Singh v. Emperor 35 C. 929 : 12 C.W.N. 932 : 8 CriLJ 207 and a true interpretation of Section 107 of the Code. An order under that section can only be passed when there is a finding that the persons sought to be bound down are guilty of wrongful acts committed or sought to be committed by them. This san only be proved by overt acts against each individual. When wrongful overt acts are committed or threatened to be committed jointly by a number of persons, the act is really committed severally and jointly by each and all of them, and all of them would be liable to the penalty of Section 107. True, that overt acts committed by some of a body of persons cannot be a justification for binding all of them, howsoever interested they may be in the commission of the act or in the result intended to be achieved thereby. The learned District Magistrate is apparently of this view, when, in the passage quoted above, he says that there is no reason why some should be falsely implicated. On this point may also be referred the decision reported in Gouri Butt v. Gobind Singh 53 Ind. Cas. 8291 PLT 44 : CriLJ 829 It is to be judged on the fasts and circumstances of each case whether there is evidence of overt acts having been submitted by the accused persons severally or jointly. The aforesaid remarks made by the Courts below led me to suspect of there being no sufficient evidence of overt acts committed by the accused persons. The Trial Court has summarized this evidences. Three witnesses testify that the second party went to turn out the Musammat by force. They obstructed her maid, threatened Gopi Singh, her agent and karpardaz, on the publio road and they stopped her water supply. The evidence imputes the acts to all the accused persons, it has not been elicited in cross examination that any of the accused persons did not commit the acts imputed to them, and the only interpretation of the evidence could be that all these persons by their various acts detailed above wanted to dispossess the Musammat wrongfully from the land in dispute. If the accused wanted to show that some of the accused did not take part in those acts, it was their duty to clear it up and when the word ''accused" was used in the evidence, it referred to all the accused as having committed the aforesaid wrongful acts. To support this, there is the specific case of house trespass committed by four of the petitioners, Nos. 2, 9, 10 and 11, and assault on the Musammat''s labourers. The fasts of the present case as well as the finding of the Courts below take it out of the purview of the decisions quoted above.

There is, therefore, to my mind clear evidence of wrongful act a committed by all the accused persons. This fully answers the contention of the learned Vakil and disables me to differ from the view taken by the Courts below that the petitioners are determined to oust the Musammat from her land by unlawful means.

I, therefore, decline to interfere with the order passed in this case. The petition is rejected.