Ram Kripal Singh and Others vs Sidheshwar Singh and Others

Fazl Ali, J.—This is a criminal motion against an order passed by the Sub-divisional Magistrate of Dinapur dated 10th July 1940. It appears that in village Bishundattpur there is a plot of land bearing survey No. 722.

The case of the petitioners is that they are the occupancy raiyats of the land, whereas the case of the opposite party is that though they were in possession of the land formerly, they had abandoned it many years ago. On 27th June 1940, the Sub-divisional Magistrate of Dinapur, issued a notice u/s 144 against the second party directing them to abstain from going near the land in dispute and not to commit any breach of the peace. On 4th July 1940, a similar notice was issued against the opposite party as well.

On 10th July 1940, the learned Magistrate converted the proceeding before him into one u/s 145, Criminal P.C., observing that there was still an apprehension of the breach of the peace and the possession of the disputed land had therefore to be properly determined.

The present application is directed against this order. It appears that before the learned Magistrate passed his first order in June 1940, the petitioners had applied for commutation of rent and on 29th April 1940, the commutation officer granted their application. Before granting the application he visited the spot and held an enquiry in the course of which witnesses were examined by both parties. As a result of his enquiry he held that the petitioners were in possession and that they had never abandoned the land.

It is contended that in view of this decision of the commutation officer, the Magistrate had no jurisdiction to institute proceedings u/s 145, Criminal P.C., and that the proper course to have been taken by him was to pass an order u/s 144 against the opposite party.

In support of this argument reference is made to the following observations of Mullick, J. in Shebalak Singh Vs. Kamabuddin Mandal and Others, :

Where it is clear upon the materials before the Magistrate that one party is in possession and that another, whose claim to possession is a mere pretence, is threatening to interfere with that possession, the Magistrate is clearly entitled to resort to the special summary procedure of Section 144 if immediate prevention or speedy remedy is desirable.

There can be no doubt that the Magistrate was entitled to take the course suggested by the learned Judge in the case referred to above, but the question which I have to decide is whether the order under revision is without jurisdiction. In my opinion it is difficult to take such a view in the circumstances of the case.

In Gaya Prasad Singh and Others Vs. Ram Sarober Saran Singh and Others, , it was held that a Magistrate had jurisdiction to proceed u/s 145, Criminal P.C., notwithstanding there being a decision of the land registration Court as to possession; and however great might be the weight which the Magistrate would eventually attach to the decision of the land registration ease, he was bound to receive all such evidence as might be produced by the parties to the proceeding u/s 145 and consider the effect of such evidence.

The facts of the above mentioned case are somewhat different from those of the present case, but, in my opinion, the decision of that case clearly implies that even where the land registration Court has given a decision on the question of possession, a Magistrate is not incompetent to investigate the question of possession in a proceeding u/s 145. I am therefore unable to interfere with the order passed by the learned Magistrate.

It has been pointed out to me that if the order is allowed to stand the parties will be subjected to much harassment, inasmuch as they will be compelled to adduce evidence on the very point which has already been investigated by the commutation officer and that there is also the danger of there being a conflict of decisions.

I am also informed that an appeal is pending from the judgment of the commutation Court. Now all that I need say about these matters is that it is for the Magistrate to decide whether the enquiry u/s 145 should await the decision in the appeal or not and he will undoubtedly take into consideration the judgment of the commutation Court as an item of evidence in deciding the case.

The application is dismissed.