Nand Kishore Missir vs Kalika Missir and others

Bucknill, J.—This was an application in criminal revisional jurisdiction. It was made on behalf of certain persons who were parties to proceeding instituted by the Subdivisional Officer of Buxar. It is a little difficult to understand exactly what the Sub-divisional Officer has done. It would appear, however, that in the first instance, he started proceedings u/s 107 of the Code of Criminal Procedure against both the parties on the 26th January. On the 20th February he appears to have ordered the institution of proceeding u/s 145 and on the 16th March to have proceeded to hear evidence apparently in both proceedings. On the 19th March he gave judgment which appears to be, so far as I can gather, a judgment both in the proceedings started u/s 107 and those started u/s 145. He orders that the proceedings u/s 107 should be dropped and that the land should be attached under the provisions of section 146.

Now, it is pointed out by the learned Vakil who appears for the applicant that it would seem that the Magistrate had no jurisdiction to make this order, because it would seem clear from what the Magistrate himself writes that the property is in the joint possession of the parties. Here again it is a little difficult to gather exactly what the Magistrate means; but, at any rate, he starts his judgment of the 19th ultimo by saying. "This is a joint family dispute, Deodat Missir, Jaigobind Missir, Kalika Missir and Jagdat Missir are brothers. Their properties are joint. The present dispute is over 8 bighas of land." Then later towards the end of his judgment he writes. "This is clearly a dispute over which the Criminal Court has no jurisdiction. As regards possession it is impossible to come to any conclusion. The whole family used to possess and cultivate this land jointly." Now, if he had merely said he had been unable to come to any conclusion as to who was in possession of the property, no doubt he would have had jurisdiction fro make the order u/s 146 as he did. But as he finds apparently that the property is joint and presumably in the joint possession of the parties, under such circumstances it is quite clear on ample authority that he cannot make an order under S. 145 or under S. 146.

Under these circumstances the order of the Subdivisional Officer of Buxar dated the 19th March, 1923, attaching the land in dispute under the provisions of section 146 of the Code of Criminal Procedure must be set aside.