Mukhal Singh and Others vs Ramsarup Singh and Another

Chapman, J.—This is a motion asking for interference by this Court with an order passed in a proceeding u/s 145 of the Code of Criminal Procedure. The first party is a purchaser of six-annas share of the proprietary right. His case was that the zirait land had been partitioned among the different proprietors and that certain plots out of the land in dispute had been allotted [to his share, that there bad been a submergence on account of innundation by the river, that the plots had re-appeared and that he had settled them with tenants upon the batai system. The second party were the raiyats of the village, who claimed that the entire lands in dispute were parts of their occupancy holding. The Magistrate awarded possession to the first party--giving the first party in fact more than they claimed, that is to say, he gave them the entire land described in the order by which these proceedings were initiated.

The first ground taken before this Court is that the proceeding is without jurisdiction so far as a portion of the land is concerned which lies outside the district of Saran. The Magistrate professedly exercised jurisdiction only within the district of Saran. The order originating the proceedings described the northern boundary of the land in dispute to be the boundary of the village Chaki Sahagpur in the district of Muzaffarpur. So far, therefore, as this order which originated these proceedings is concerned there was no want of jurisdiction, for it is conceded that so far as the present land is concerned anything south of the boundary of the village of Chaki Sahagpur would be within the district of Saran and within the jurisdiction of the Magistrate. I am asked, however, to infer from the evidence given by a Commissioner in the case who went to the spot that a portion of the land in dispute lay within the village of Chaki Sahagpur and, therefore, outside the jurisdiction of the Magistrate. My experience of the work of Commissioners especially in cases of village boundaries is not such as to justify me in saying that the evidence must necessarily be implicitly relied upon, and in any event the Magistrate himself has described the boundary of the disputed land as the boundary of the village of Chaki Sahagpur. His order, therefore, does not include any land situated within the village of Chaki Sahagpur and if the petitioner has satisfied find is confident that he could satisfy any Court that any portion of the land is situated within the village of Chaki Sahagpur, this order will not imperil any possession he may have of that land.

Another ground contended is that only a portion of the land in respect of which disputes had arisen was made a subject of these proceedings. That is not a ground upon which, in my opinion, a High Court can interfere. The purpose of a proceeding u/s 145 is merely to prevent a breach of the peace and if the Magistrate thinks that it is sufficient to prevent a breach of the peace to include in his preceding only a portion of the land which is the subject of the Police report, there is nothing to prevent him doing so. The rule that if a suit is brought only in respect of a portion of the land claimed a subsequent suit for the remainder might be barred is not applicable. Another ground contended is that the Magistrate made a mistake in law in relying upon the ruling of Senath Dutt v. Ashgur Sindar 4 C. 894 : 2 SL.R. 143 : 2 Ind. Dec. 566, to the effect that if a portion of the holding of an occupancy raiyat is submerged and no rent is paid for it that portion must be taken to have been abandoned. There is no doubt a good ground for holding that that decision is no longer law so far as the Calcutta High Court is concerned, and that so far as the jurisdiction of this Court is concerned the decision is not correct in law. There is much to be said for this view and all that can be said for it was said by Mr. Justice Prinsep in the case of Obhoya Charan Bhooia v. Koilash Chunder Dey 14 C. 751 : 7 Ind. Deo. 498. But a mistake in law is not a ground upon which this Court can interfere with proceedings u/s 145 unless the mistake goes ''to the jurisdiction. Another ground contended was that certain co-sharer proprietors . were not made parties and in connection with this ground it was also contended that the first party has been awarded more than he claimed. It will be remembered that the first party claimed to be in exclusive possession of certain plots of the land in dispute. So far, therefore, as those plots are concerned, there was no defect of parties even if it were possible to hold now that a defect of parties would justify an interference by this Court. This is not quite true in respect of plots Nos. 20 and 22, in which the first party claims to have a one-fourth share in the one case and a half share in the other held in zurpeshgi. The case of the first party is that the other proprietor of these two plots is a woman named Bahora Debapatti Kuer. His case is that these plots had been let in batai to a tenant. There is nothing in the record to show that the second party would be benefited at all if Bahora Debapatti had been made a party, and having regard to the recent decisions both of the Calcutta High Court and of this Court, I do not feel justified in interfering with the order upon the ground that Bahora Debapatti was not made a party. In regard to plots Nos. 25 and 28 of which the first party does not claim to be in possession, I am of opinion that I should interfere. In my opinion the Magistrate goes beyond his jurisdiction if he awards to a party more than that party has claimed and that in such a case this Court ought to interfere. The first party has not claimed plots Nos. 25 and 28, Therefore, the order of the Magistrate must be set aside so far as plots Nos. 25 and 28 are concerned, otherwise the order will stand.