Radha Kisun Marwari vs Emperor

Ross, J.—The petitioner has been fined Rs. 15 u/s 203, Clause (2) of the Bihar and Orissa Municipal Act (VII of 1922) and ordered to remove an obstruction which he is said to have created on a Municipal lane. It appears that the petitioner put a fence round a piece of land which he had purchased by a registered deed from one Akali Hari and it was said by the prosecution that in doing so he encroached on a Municipal lane. The version of the prosecution was that the land had been sold by word of mouth by Akali Hari to one Bisessar Chakrabarty and presented by him, also by word of mouth, to the Municipality; and it was found that the Municipality had been in possession for about seven years over this land as part of the lane. Now it is clear that the Municipality has not established any title, because, although the land might have been sold by word of mouth to Bisessar Chakrabarty, his gift to the Municipality had to be by registered instrument under the provisions of Section 123 of the Transfer of Property Act and Section 17 of the Registration Act; and possession for seven years will not establish title by prescription.

Then apparently there is no proof that the petitioner bad failed to comply with a requisition issued by the Commissioners u/s 196 and this is a condition precedent to his liability to fine u/s 203(2). Some reference was made to an order of the Deputy Commissioner for the removal of this obstruction on the 19th of October 1925; but that order has not been produced and, there is nothing to show that it was a requisition by the Commissioners.

Further, in order that Section 196 may come into operation there must be proof that the property had vested in the Commissioners; and, as I have shown, there is no proof of this. On the other hand, the petitioner has instituted a suit in the civil Court against the Municipality for a declaration of his title; and, on this ground, Section 203 could not be made use of: see Aloke Mohan Saha v. Narayanganj Municipality [1921] 22 CriLJ 25.

On all these grounds the order appealed against is bad and must be set aside. The fine, if paid, must be refunded.