Raghunath Puri and Others vs Prem Narain Puri

Rowland, J.—These two applications have been heard together. They relate to the affairs of the muth situated at Madra in the Subdivision of Nawadah. Subordinate to this muth is a dependant asthal at Dhonra. Mahanth Tokhnarain Puri died on 12th August 1930 and there is now a dispute as to who is his successor. The opposite party Prem Narain Puri alleges that he was nominated by Tokhnarain to be his successor and was duly installed and obtained mutation of his name in the Land Registration Department of the Collectorate and was in possession of the muth the dependant asthal and all the zamindari properties appertaining thereto; but about the beginning of March 1931 when suffering from a boil he came to Gaya for treatment and during his absence there the petitioner Raghu Nath Puri, petitioner 1 in Criminal Revision No. 166 abetted by petitioners Ramdhan Mahanth of Budhali and Dhaneshwar, manager of Ramdhan, collected men with lathis to loot the treasury and seize the muth and its dependant asthal. Prem Narain presented on 8th March 1931 a petition to the Superintendent of Police Gaya, for assistance praying for deputation of armed police to protect the treasury and other properties of the petitioner. On this the local Inspector of Police was directed to enquire. On 9th March 1931 he visited Dhonra and found men of Raghunath standing at the gate of the asthal with lathis.

It appears from Inspector''s report that the men of Raghunath Puri had already taken possession of the Dhonra asthal. The Inspector said in his report that Prem Narain "has wrongfully been dispossessed" and the Inspector in sending a copy of this report to the Subdivisional Officer also observed in the forwarding letter:

It appears that the Mahanth (meaning Prem Narain) has been dispossessed not only of the treasury but also of the asthal.

On 11th March 1931 a chaukidar of Madra reported at the police station Gobindpur as to apprehension of a breach of the peace. The Writer Head Constable went to Madra and found Raghunath Puri and his men present in the muth on 12th March 1931 and no men of Prem Narain Puri was found present there. The Sub-Inspector of Pakribarawan also paid two visits to Dhonra, the first was in consequence of a telegram from Prem Narain Puri forwarded by the Inspector of Police and was on the 11th. On this the Sub-Inspector reports that he posted two constables at Dhonra treasury and requests order as to putting a seal on the lock of the room. The Sub-Inspector was directed to see that no property was removed from anywhere and he reported again on 13th March 1931 that four constables and one Writer Head Constable have been posted at Dhonra and that Raghunath Puri and his men are in peaceful possession and there is no apprehension of a breach of the peace.

These being the reports of the police, it is argued for the petitioners that the Magistrate had no business to take any proceedings against them, that if anything was to be done, he should restrain the opposite party from any interference with the possession which the petitioners had already established over the property. Reliance is placed on H.V. Low and Co., Ltd. Vs. Maharaja Sir Manindra Chandra Nandy and Others, . In this case Mr. Lyall representing the Maharaja of Kasim Bazar had personally gone to a colliery, informed the servants of the lessees that the lease was terminated and had taken possession of the colliery. Subsequently he otherwise wished the Magistrate to draw proceedings either u/s 144 or Section 145, Criminal P.C. It was contended that Mr. Lyall had taken possession by force by collecting lathials and gurkhas but the affidavit regarding this was found to be unsatisfactory and Mr. Lyall and Mr. Adamson denied it and the Court apparently held that the dispossession had not been forcible. On that view the High Court declined to order proceedings to be taken u/s 145.

The difference between that case and the present one is that the police reports disclose here that possession was taken and maintained by show of force by collecting and posting armed men. For this reason I think that the decision relied on is not an authority for holding that proceedings either u/s 145 or u/s 107 are inappropriate. At the same time the course of procedure taken by the Magistrate is not entirely satisfactory. Where there is a dispute between the two parties as to title it has been several times observed that it is hardly fair to bind down one party, only, thereby giving the other side an advantage, for instance in Musaheb Soudagar and Others Vs. Nidhi Ram Dutt, . In such cases if Section 107, Criminal P.C. is utilized, proceedings should be drawn against both parties so as not to give an unfair advantage to one as against the other. I may point out that in that case this Court did not interfere but merely pointed out to the Magistrate the desirability of taking proceedings against the other side also. In Amanat Ali Vs. Emperor, it was pointed out that the normal procedure is to institute proceedings u/s 145 and to decide the disputes as to possession once for all so far as the criminal Court is concerned. But it is also optional to a Magistrate in special cases to proceed u/s 107 against both parties and to bind down the party who is proved not to be in possession. It is not proper to proceed against one of the parties alone u/s 107 and bind him over without determining the question of possession. It was also observed that a proceeding u/s 107 should contain definite particulars and not mere vague recitals borrowed from the words of the section.

Now the proceeding actually drawn up recites that the Magistrate is satisfied from the report of the Inspector of Police Nawadah that the accused persons 24 in number have joined together to loot the treasury of Mahanth Premnarain Puri at Dhonra and also to dispossess him from the asthal and in order to gain this illegal object they have committed and are committing various wrongful acts etc. Now this proceeding might be expressed with more precision but it is not so vague that it would not support an order for security should the facts be established. The Magistrate might however with advantage consider the desirability of some amendment by way of making the particulars more definite. If there is a dispute between the parties concerning immovable property the Magistrates may in the alternative substitute for it a proceeding u/s 145, Criminal P.C. I have already pointed out that generally speaking it is undesirable to proceed u/s 107 unless proceedings are taken against both parties; at the same time I have no doubt that unless some measures are taken there is danger of very serious breach of the peace.

The result is that the case will go back to the Magistrate with a direction either to proceed against both parties u/s 107 (the proceedings being framed with as much precision as is found feasible) and to bind down the party found to be in the wrong or both the parties as circumstances may direct or in the alternative to cancel the proceeding u/s 107 and to draw an effective proceeding u/s 145 for the determination of the dispute. The order already passed staying proceedings u/s 107 till further orders of this Court will remain in force until the Magistrate has either drawn a proceeding against the opposite party or taken a proceeding u/s 145. In the event of the Magistrate drawing a proceeding u/s 145, he will have to consider carefully what should be the proper subject-matter of it. This deals sufficiently with Criminal Revision No. 166.

As regards No. 191 the allegation against Mahanth Ram Dhan Puri of Budhouli and his manager Dhaneshwar Prasad is that they are aiding and abetting Raghunath Puri in the wrongful acts alleged to be committed or to be likely to be committed by them. These two petitioners have asserted that they have no concern whatever in the dispute and are not claiming any right or title in the property. It is however the allegation of the opposite party that they are "the real men at the bottom." In the circumstances it seems to me to be for the Magistrate to determine whether these petitioners are responsible for the likelihood of any breach of the peace. On behalf of both the petitioners an assurance was offered to me that they would not go near the Madra muth and Dhonra asthal during the pendency of the dispute. They may offer this assurance to the Magistrate and it will be in his discretion to drop the proceedings against them.

Subject to the above directions the rules are discharged.