Purna Chandra Biswal vs Brindaban Biswal and Others

G.B. Patnaik, J.—First party member in a proceeding u/s 145 of the Code of Criminal Procedure (hereinafter referred to as the ''Code'') is the Petitioner against the revisional order of the Sessions Judge. The learned Sessions Judge by the impugned order has set aside the order of the Magistrate and dropped the proceedings u/s 145 of the Code mainly on the ground that the parties being joint and there being no partition amongst them, the proceeding u/s 145 of the Code is inappropriate.

Admittedly, the Petitioner and opposite parties are brothers. It is the case of the Petitioner first party that there was a partition amongst the brothers during the life time of their father and the disputed Bhogara lands fell to the Petitioner''s share whereas the raiyati lands belonging to the father fell to the share of the opposite parties. Since the opposite parties created disturbance in the possession of the Petitioner after the death of their father, the Petitioner approached the Magistrate for initiating a proceeding u/s 145 of the Cod. The case of the opposite parties-second party members, on the other hand, was that there was no partition amongst the brothers and, therefore, each member of the joint family must be assumed to be in possession of the entire joint family property.

The learned Magistrate on the materials placed before him came to the conclusion that none of the witnesses produced by the first party member satisfactorily proved the possession of the Petitioner in respect of the case land. He also entirely discarded the evidence adduced on behalf of the second party members opposite parties. But as rent receipts were produced on behalf of the first party-Petitioner, the Magistrate came to the conclusion that the Petitioner was in possession of the land on the date of the preliminary order. On the question of partition, though there was no clear finding, yet, the Magistrate accepted the case of oral partition as alleged by the first party-Petitioner,.

The revisional authority, however, on a thorough discussion of the evidence came to the conclusion that there was no partition by metes and bounds and the first patty filed to establish that Bhogara lands fell to his share in the so-called partition. In coming to the aforesaid conclusion, be relied upon the oral evidence as well as the fact that first party himself had filed Title Suit No. 6 of 1972 for partition which suit was ultimately dismissed for default. After coming to the conclusion that the family continues to be joint and the proper-parties are joint family properties, the revisional authority dropped the proceedings since in his opinion a proceeding u/s 145 of the Code is wholly inappropriate in respect of a joint family property.

Mr. Ray, the learned Counsel for the Petitioner, contends that the finding of the learned Sessions Judge that the property is a joint family property is contrary to the evidence on record. I do not find any substance in the aforesaid contention. The learned Sessions Judge has thoroughly scrutinized the evidence in this regard and relying upon the first party''s own conduct of having filed a suit for partition wherein the disputed property was also included, came to the conclusion that there was no earlier partition as alleged by the first party. The finding being one based on an appreciation of the evidence on record and no infirmity in the same having been pointed out by the learned Counsel for the Petitioner, I am not inclined to interfere with the said finding.

Mr. Ray, the learned Counsel, next contends that a proceeding u/s 145 of the Code being to find out only possession when there is an apprehension of breach of peace in respect of the same, the Sessions Judge was in error in dropping the proceedings merely on the ground that the property is joint family property. In support of the aforesaid contention, he places reliance on the decision of this Court in the case of Mallik Rafiq and Another Vs. Mallik Abdul Hakim and Another, , as well as a Bench decision of the Patna High Court in the case of Mt. Sudamawati Kuer Vs. Ram Chandra Singh and Others, . So far as the Orissa decision, referred to earlier, is concerned, a set of persons claimed exclusive possession of some lands whereas another set of persons claimed to be in joint possession along with them and in that context it was observed that a proceeding u/s 145 of the Code would lie. The ratio of the aforesaid case has no application to the facts and circumstances of the present case where .the .finding of the Sessions Judge is that the property is the joint family property of the first party and second party members. So far as the Patna decision is concerned, no doubt, the observations made by the learned Judges in that case supports the contention of Mr. Ray, the learned Counsel for the Petitioners, but in view of a series of decisions of this Court to which reference will be made here under I am unable to accept the Patna view as reflected in Mt. Sudamawati Kuer Vs. Ram Chandra Singh and Others, .

This question arose before the Andhra Pradesh High Court in the case of K. Janardhan Reddy and Another Vs. The VIth City Magistrate Criminal Court, Hyderabad and Others, , where it was held:

.... If a member of the joint family is in possession of a part of the property, can it be said that he is solely in actual possession ? Unless there is a partition in the family, any member who is in actual possession of any part of the joint family property can only be in possession on behalf of other family members. In matters of joint family property, no member of the joint family can claim any part of the joint family property exclusively for himself because, inherently every member of the joint family has a right in the property, though, some portion may be in possession of one of the members of the joint family.

In this view of the matter, the learned Judge of the Andhra Pradesh High Court directed dropping of a proceeding initiated u/s 145 of the Code. This decision of the Andhra Pradesh High Court has been followed by,a learned Single Judge of this Court in the case of Khetri Pradhan and Ors. v. Jagannath Pradhan and Ors. 40 (1974) C.L.T. 1283. The learned Judge therein has relied upon another decision of the Patna High Court in the case of Sham Lal Mahton v. Rajendra Lal AIR 1920 Pat 513. It has been held in the aforesaid case that where the dispute is with regard to the property in the joint possession of the, parties a proceeding cannot be initiated u/s 145 of the Code and since no member of a joint family can claim any part of the joint family property exclusively for himself, because every member of the, joint family has a right in the property though some portion thereof may be in possession of one of the members of the joint family a proceeding u/s 145 of the Code is wholly inappropriate.

This question again came up for consideration before another learned Single Judge of this Court in the case of Bishnu Charan Naik Vs. Harihar Sabu and Others, , wherein the learned Judge has held that a proceeding u/s 145 of the Code could not be initiated in a case where the property is joint family property and the parties are in joint possession (see the head note).

The question has been thoroughly discussed in another decision of this Court in the case of Manika Sahu and Ors. v. Dandapani Sahu and Ors. 60 (1985) C.L.T. 558. A large number of authorities have been discussed and in paragraph 10 of the judgment, the learned Judge has observed :

As would appear from the facts of this case and the findings recorded by the Courts below both the parties belonged to an undivided Hindu joint family. Undisputedly there was no partition by metes and bounds. No specific finding was also recorded as to who was in actual physical possession of 8 acres of land within the statutory period as contemplated in Section 145 of the Code. Therefore, according to the concept of Hindu Law even if for the sake of convenience one of the parties is in separate possession of a portion of the joint family property such possession is on behalf of the other members of .the joint family. No member of a joint family can predicate his share before a partition by metes and bounds actually takes place. In such a case, according to the consistent view of this Court action u/s 145 of the Code cannot be taken.

In view of the catena of cases referred to earlier, I do not find any force in the contention of Mr. Ray, the learned Counsel for the Petitioner and I do not find any infirmity in the judgment of the learned Sessions Judge.

In the result, there is no merit in this application which is accordingly dismissed.