AI Structured Summary
Not yet generated for this judgment
Judgment
Jwala Prasad, J.—This, is an application against an order of the Sub-Divisional Magistrate of Dinapore, dated the 7th January 1922, passed u/s 145 of the Code of Criminal Procedure declaring the 1st party in possession of the land in dispute. The 2nd party are petitioners before us.
It appears that a proceeding u/s 145 was originally drawn up mentioning 1100 bighas as the subject-matter of dispute and 15 persons as members of the 1st party. Under the orders of the Magistrate, on behalf of the 1st party names of 72 persons, with the lands and the boundaries thereof, claimed by each of them, were filed is separate sheets of paper. They were printed and were attached to an amended proceeding. The amended proceeding, however, omitted to mention all the 72 persons as members of the 1st party, wherein the names of 15 persons as originally stood, continued. The total of the area claimed by each member of the 1st party, as mentioned in the aforesaid sheets of paper attached to the amended proceeding, comes to about 800 odd bighas, whereas the amended proceeding continued to mention 1100 bighas. There was no dispute with respect to tie remaining 300 bighas which has neither been expunged from the proceeding, nor has any order been passed with respect thereto in the final order of the Magistrate, dated the 7th of January 1922. The amended proceeding was, therefore incorrect and irregular with respect to the names of the parties and the subject-matter in dispute.
Out of the 800 odd bighas claimed by the members of the 1st party, eleven of then Basdeo, Sheo Tahal, Saducharan Sukhdeo, Ramunandan, Dhanukhdhari Rasdhari, Saudagar, Tilak, Baliram and Bipat relinquished their claims as set forth against their names in the sheets of paper attached to amended proceeding with respect to the land aggregating to 115 bighas and the Magistrate, therefore, declared the possession of the 2nd party with respect thereto, and we are now not concerned with it. Magistrate passed the following order:
The other lands in dispute less 115 bighas Surrendered of Sheo Tahal, Basdeo Saducharan, Sukhdeo, Ramunandan Dhanukhdhari, Rasdhari Saudagar Tilak Baliram and Bipat hold to be in the possession or the 1st party tenants.
Mr. Manuk contends that this order evidently relates to 1100 bighas which was in the proceeding, minus 115 bighas, arid is therefore, wrong inasmuch as the area claimed by the members of the 1st party in the sheets of paper attached to the proceeding amounted only to 800 odd bighas. This contention appears to be substantial. It has not even been refuted by Mr. Saltan Ahmad who appears on behalf of the 1st party. The mistake apparently arose on account of not having amended the proceeding in which 1100 bighas occurred in view of the claims of the 1st party which disclosed that only 800 odd bighas was in dispute.
Mr. Maruk further contends that the Magistrate has not based his finding of possession in favour of the 1st party upon any legal evidence nor was there such evidence to justify his finding. The contention is that 8 of the claimants out of a large body of about 60 to 72 persons gave their evidence in Court. There was no evidence except of a vague character as regards the lands claimed by the rest of the members of the 1st party. They themselves have not come forward to depose in Court. The such a Receipts relied upon by the Magistrate relate only to a few of the claimants and cannot be any evidence of possession, as regards possession of the large body of the remaining members of 1st party claiming a specific and separate land in dispute. Herein also the contention is well founded. The Magistrate has not referred to the oral evidence offered on behalf of the 1st party to prove their possession, and we do not know whether he was satisfied with the oral evidence adduced on their behalf. It is also true that the receipts are only with respect to a few of the claimants about 8 in number win give evidence. Therefore, even if the Magistrate had acted upon the evidence offered on behalf of the 1st party, it was not sufficient to hold the possession of all the members thereof with respect to the particular plots of land claimed by them. The Magistrate has treated the members of the 1st party as one body, and ha apparently taken the evidence offered to prove the possession of some of them with respect to the particular plots of land claimed by them as sufficient for finding possession with respect to all the members of the 1st party. In this he is in error, for there is no community of interest among the members of the 1st party, except that they claim to be the tenants of the land in question; but each of them claims separate parcels of land as set forth in the sheets of paper attached to the proceeding; so that whereas one of the members of the 1st party might be in possession of the land claimed by him the other members might not be in possession of the lands claimed by them.
The Magistrate has referred to the chaukidari assessment list in support of the claims of the 1st party. He has very rightly taken this evidence as only corroborating the genera case of the members of the 1st party that they held some lands in the village. He says: "If these tenants had not been in cultivating possession of the lands in August 1920, the sirpanch and raipanches could not possibly have prepared such an assessment list and have given chaukidari receipts for these holdings on payment by the tenants." Both the parties prepared and filed before me a comparative statement showing the areas claimed by the members of the 1st party and those mentioned in the chaukidari assessment. They largely differed and, therefore, the chaukidari assessment could not possibly be evidence of possession of the specific lands claimed in the present case, and the Magistrate also has not treated it as such.
It appears that the Magistrate has mainly proceeded upon the result of his local inspection. He says that he lad examined a number of persons on lie spot and had asked the tenants to point out the respective lands to him. As to the local inspection he says "Most of them, (tenants) who were examined by me had from 15 to 20 plots in twelve to fifteen widely scattered khandas. They were tested searchingly in regard to in each case not loss than six or even of their holdings, etc," Then he gives the names of the 17 tenants examined by him. The evidence of these people could not be acted upon without giving proper opportunity to the other side to cross-examine these. The real scope and object of holding local inspection was pointed out by this Court in the case of Ram Sabai Singh v. Dwarka Singh 61Ind. Cas. 712 : 1 PLT 569 : 22 CriLJ 424. The object of local inspection is to understand and appreciate the typography of the land in dispute in order to aid the Magistrate in appreciating the evidence offered in Court, but the local inspection cannot take the place of legal evidence, much less the result thereof can be used as a basis for the decision. The Magistrate has, as a matter of fact, solely relied upon his local inspection and the statement of witnesses made to him at the inspection for the purpose of holding possession of the lands in dispute with the 1st party. His entire order is, therefore, vitiated. The Magistrate has not acted upon any definite legal evidence en; behalf of the members of the 1st party ill support of their possession over the lands claimed and included in the proceeding. The order on this ground alone is liable to be set aside.
Mr. Manuk has also pointed out to me that the learned Magistrate has vitiated his inquiry and order by mis-stating the evidence on the record. For instance, the Magistrate says: ''The 1st party have claimed that they were never dispossessed, that they were permitted to remain on in their old holdings on payment of salami." There is no evidence for or against this assertion." "At another place, he repeats it in the following words: "These original holdings were sold up in auction and delivery of possession was obtained by Narain Dutt, whether he actually dispossessed those to pants from. their particular lands there is no evidence for or against." Mr. Manuk says that evidence was given on behalf of the 2nd party to disprove the above claim of the 1st party, and that the Magistrate is wrong in saying that there is no evidence against the assertion of the tenants.
Again, the Magistrate says. "There is no evidence to disprove their (tenants'' 1st party) statements that "besides these lands they have no other means of livelihood." Mr. Manuk says that the evidence both on behalf of the 1st and the 2nd parties shows that the tenants have other lands besides the disputed lands, and he refers to the statements of Bahori (witness No. I for the 1st party) and Sukhari (witness No. 15 for the 2nd party). There are other passages also pointed out in the judgment of the Court showing that the remarks made by the Magistrate were against the evidence on the record. This also largely takes away the value of the decision of the Magistrate in the present case.
I, therefore, hold that the order of the Magistrate in the present case must to vacated; but as there is a serious dispute between the parties tending to a breach of the peace, the proceeding should not ''be dropped once for all, But that the proceeding instituted by the Magistrate should be thoroughly enquired into. I, therefore, direct that the case be remanded for an enquiry u/s 145 of the Code after amending the proceed no stated above and on giving lull opportunity to the parties to give any additional evidence they like in support of their respective claims. The parties agree that the evidence already on the record may be used in the case but that they may be permitted to give additional evidence. The course suggested by the parties appears to be reasonable and I accept it, because I fully appreciate the remark of Sultan Ahmad that the attention of the parties mostly directed in the present case to the trial of the issue as to whether the 2nd party bad made settlements of the land with new tenants after the dakhadehani in 1904, or that the old tenants such as the members the 1st party were allowed to hold possession of the lands either by some arrangement or by fresh settlement. The parties therefore, did not direct their attention to the principal issue in the case, namely, as to which party was in possession of tie specific lands claimed in. the case. The lands in the present case are parcels claimed by several persons, each tenant claiming right to hold the land for himself. The evidence of the claim of each of the tenants was, therefore, necessary. In order to avert the danger to a breach of the peace, the lands in the present case should be attached under clause (4) of Section 145 and Magistrate upon the evidence in the case will dispose of the proceeding in accordance with law.
In the circumstances of the case and in view of the opinion expressed by the Magistrate the parties propose that the case be tried at Patna. I am told that the Magistrate is under orders of transfer and, will be succeeded by another Magistrate." In that case, the case will be heard by the successor of the present Magistrate others wise it will be transferred to Patna. The matter should be expedited.