Leela Singh and Others vs B.P. Singh and Others

Varma, J.—This a reference by the Additional District Magistrate of Gaya recommending that the order passed by the inquiring Magistrate in favour of the first-party u/s 145, Criminal P.C., be set aside.

The case of the respective parties has been very well summarised by the learned Additional District Magistrate. The dispute is between Leela Singh and others who happen to be the first party and are raiyats of village Gaffa, on the one hand, and Mr. B.P. Singh and others, the landlords of the village who happen to be the second party, on the other. It relates to eighteen holdings, namely, plots Nos. 54, 55, 44, 45, 183, 184, 27, 129, 216, 193, 194, 66, 67, 134, 136, 137, 264 and 265, covering about 70 acres of bhaoli and 25 acres of naqdi land. The case of the first party is that these holdings were in possession of tenants originally but were sold by the civil Court at the instance of the Chunibigha Co-operative Society in execution of money-decrees obtained by the society. The society was put in possession of the holdings by the civil Court in 1936 and 1937 but they sold them to S. Ibrahim who took possession shortly after the delivery of possession to the society. S. Ibrahim is said to have taken possession of the holdings in 1937 although the formal sale deed in favour of Section Ibrahim in respect of the holdings was executed on 3rd April 1940, (the deed is Ex. 15, in these proceedings). S. Ibrahim settled the holdings with the original tenants and allowed them to cultivate the disputed land. Later on, he sold the holdings to Mahanth Shiva Ram Bharathi, by Ex. 15(a), in August 1940, in the farzi name of Baran Singh. It is said that the Mahanth also allowed the original tenants to cultivate the land. That is to say, the case of the tenants is that the Mahanth settled the land with the original tenants who had continued to cultivate the holdings from 1937 when the society was put in possession, till June 1943, when the Mahanth, partly orally and partly by sale deeds, transferred the holdings to the tenants. Hence the tenants claimed to be in possession of the disputed land ever since 1937 till the proceedings were started in 1943.

Before setting out the case of the second party I should note here certain relevant dates in connection with the proceedings. A report was made u/s 144, Criminal P.C., on 19th November 1943, and proceedings were drawn up under that section on 22nd November 1943. The proceedings were converted into one u/s 145 of the Code on 13th January 1944; and the notices were actually issued on 26th January 1944.

The case of the second party was that the holdings in question were purchased by the Chunibigha Co-operative Society and the society was put in possession in 1936 and 1937; but that the society abandoned the holdings and made no arrangements for the cultivation of the land, and, therefore, the then maliks, the predecessor in interest of the second party, took possession of the holdings in June 1937, cultivated the land from that time, and that the second party to whom the interest of the then maliks was subsequently transferred, have continued to cultivate the holdings as bakasht. That is to say, the case of the second party is that the disputed holdings are their bakasht and they have been cultivating these lands.

The inquiring Magistrate has not relied on the evidence, oral and documentary, of the second party, and has accepted the evidence adduced on behalf of the first-party. The learned Additional District Magistrate has recommended on three grounds in his letter of reference for setting aside the order of the inquiring Magistrate. Firstly, he points out that, whereas the notice issued u/s 145(1) was against Leela Singh, Bhajan Singh, Baran Singh, Rohan Lohar, Gokul Kahar, Mohan Gope, Lekha Gope, Churaman Gope, Chhotan Gope, Basudeo Singh, Brahmadeva Singh and Mahanth Shiva Ram Barathi, the Magistrate has declared possession of Bhajan Singh, Gokul Kahar, Lalji Singh, Sibal Gope, Lekha Gope, Mohan Gope, Firangi Singh, Chhatar Gope, Mohan Lohar and Churaman Gope. The learned Additional District Magistrate points out that four of these persons, namely, Lalji Gope, Sibal Gope, Firangi Singh and Chhatar Singh, were not mentioned in the order u/s 145(1) and, therefore, no order could be made in their favour. He is of the opinion that although these four persons filed written statements before the inquiring Magistrate, that will not make them parties to the proceedings. I am afraid, this view of the law cannot be sustained. Sub-section (1) of Section 145 authorises the Magistrate in the given circumstances to record order,

requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

Now, the parties concerned "may be persons who are not mentioned in the original notice." As was pointed out by the Full Bench in Krishna Kamini v. Abdul Jabbar 30 Cal. 155 the term "parties concerned" in this section should not be so narrowly construed as to mean only the persons actually disputing but should be extended to persons who are concerned in claiming to be in possession. In selecting the persons whom he will require to attend his Court for the purpose of laying their claims before him, the Magistrate acts only upon the basis of the information conveyed to him. But so as to attract all persons or parties concerned Sub-section (3) lays down that a copy of the order made under Sub-section (1) shall be served in manner provided by the Code upon the person or persons as the Magistrate may direct, "and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute." The purpose of the inquiry u/s 145 is to declare the possession of the party actually in possession; and as soon as a Magistrate decides to investigate under the section, Sub-section (3) requires that the order must be duly notified. The reason is obvious, because it is possible that if the order is not notified on the spot and in manner provided by the Code, persons may collude to have an order passed as to possession of a property in favour of one or the other so as to deprive the person actually in possession.

In the present case, it appears that on the order being notified, Sibal Gope, Firangi Singh, Lalji Gope with Bhajan Gope and two other persons appeared and in their written statements described themselves as "persons interested in the proceedings and members of the first party." No objection seems to have been taken with regard to their appearance before the inquiring Magistrate. With regard to Chhatar Singh it seems to be a mistake for Chhotan. In my opinion, therefore, the order of the Magistrate cannot be set aside on this ground.

The next ground recommended is that Lekha Gope who was a party to the proceeding and in whose favour the Magistrate passed the order of possession on 6th February 1945, had died in November 1944, and, therefore, the order was without jurisdiction. For this piece of information, the learned Additional District Magistrate relies on an affidavit filed before him on behalf of the second party, and he points out that no counter affidavit had been filed on behalf of the first party. I am afraid, the learned Additional District Magistrate had not all the information before him on this point. It appears from the evidence of Tetar (Witness No. 28 of the second party), who was deposing on 13th January 1945, that Lekha Gope was alive. The case continued till 24th January 1945, and the order was made on 6th February 1945. The affidavit relied on by the learned Additional District Magistrate was filed on 3rd April 1945. When there was the positive statement of a witness on behalf of the second party on 13th January 1945, that Lekha Gope was alive, no counter affidavit was called for from the first party. I am afraid, the learned Additional District Magistrate was under a misapprehension in taking notice of the affidavit filed long after the order of the inquiring Magistrate, and the order cannot be interfered with on this ground also.

Lastly, it is pointed out in the letter of reference that the inquiring Magistrate has come to a general finding that the tenants were in possession instead of discussing the case of the individual tenants in the light of the oral and documentary evidence. Dr. P.K. Sen, appearing in support of the reference, has taken me through the evidence on this point. The bulk of the argument is that the inquiring Magistrate has not looked at the documentary evidence in the way in which he should have, or the way in which the second party did look at these documents. The inquiring Magistrate has given his own reasons, which cannot be called unreasonable, for hot acting on those documents. Those documents are Exs. F, F(1), H, I, J, K, L and M--village papers, and Exs. G to G(3) petitions filed in Baisakh 1345 by the tenants to be allowed to remain in their homesteads and to work as kamias. I do not say that I would come to different conclusions with regard to the reliability of these documents; but, even if I did so, I would not be justified in interfering with the view taken by the Magistrate, because it was pre-eminently within his sphere to put his own valuation upon these pieces of documentary evidence adduced in the course of the inquiry. Comment has been made upon the observations of the inquiring Magistrate with regard to Exs. P and P(1) which are judgments of acquittal in two criminal cases. With regard to them, the learned Magistrate said:

They show that the learned Magistrate who disposed of the eases did not find the oases to be absolutely false. As the complainant could not substantiate the charge the accused persons were acquitted u/s 258, Cr.P.C.

I am afraid, he has worded his observations a little loosely. What he meant to say is to be found towards the end of Ex. p, which runs as follows:

To sum up judging the evidence as a whole and taking all the circumstances into consideration, my finding is that the prosecution has not substantiated the charge at all by good and reliable evidence which is discrepant and conflicting. The three accused are not found guilty and are accordingly acquitted u/s 258, Cr.P.C.

Similar observations were made in the other judgment Ex. p. (1).

In the present case, if the inquiring Magistrate had only quoted these passages no comment could have been made; but I am satisfied that the observations of the Magistrate have not caused any prejudice in the present case. Dr. P. K. Sen urges that the second party have been seriously prejudiced by the inquiring Magistrate considering the case of all the tenants together and not dealing with their cases individually, following the observations made by Noor J. in Gulab Kuer and Another Vs. Ganouri Koeri and Others, But there also it was pointed out that one inquiry u/s 145 in a case in which the landlord claims a large number of plots to be in his possession while different sets of tenants claim different plots in their respective possession was not illegal or necessarily irregular; and when there is such a combination of claims of different sets of raiyats against one landlord in one inquiry the question of prejudice will have to be gone into. There the learned Judge wanted to guard against conclusions with regard to specific lands being drawn from general evidence.

In the present ease, the second party put forward a case of abandonment, and that has been discredited. The oral evidence adduced on behalf of the first party, which is the type of evidence that is really useful in coming to conclusions on the question of possession, has been preferred to that of the second party.

In this state of affairs, I do not think any prejudice has been caused to the second party, and the order of the inquiring Magistrate cannot be interfered with.

On a careful consideration of the grounds recommended in the letter of reference as well as the arguments advanced by learned Counsel in support of the reference, I am of opinion that the order of the inquiring Magistrate cannot be interfered with.

I would, therefore, discharge the reference.