Ram Krishnalal Sahu vs Ram Chandra Singh and Others

Kanhaiyaji, J.—This revision application is directed against the order passed by Shri J. Bara, Magistrate, 1st Class, Jamshedpur in a proceeding u/s 145 of the Code of Criminal Procedure declaring possession of the second party over the disputed land. The proceeding u/s 145 of the Code had been drawn up between the parties oh the report of the Sakchi Police in respect of plot No. 2070, area 0.67 acres under Khata No. 133 located in Mauza Sakchi (hereinafter referred to as the disputed land).

On 2-1-1968, the petitioner lodged an information at the police station alleging that the members of the opposite party were trying to take forcible and illegal possession of the disputed land which had been in actual physical possession of the Tata Iron and Steel Company Ltd. (hereinafter referred to as the Tisco) since long. The petitioner is a Tahsildar in the Land Department of the Tisco. On 4-1-1968, the officer-in-charge, Sakchi police station submitted a report to the Sub-divisional Magistrate alleging that there was an apprehension of breach of the peace between the parties in respect of the disputed land. On receipt of the report, the Sub-divisional Magistrate, by his order dated 19-1-1968 drew up a proceeding u/s 144 of the Code of Criminal Procedure and, later on, on 2-3-1968, the proceeding was converted into a proceeding u/s 145 of the Code of Criminal Procedure.

The case of the petitioner is that the disputed land forms part of the land acquired by the Tisco for industrial purposes more than 50 years ago. At the time of the acquisition, ( the disputed land was in occupation of one Sadhu Dom as a raiyat, Sadhu Dom was recorded in the survey record as raiyat in the year 1937. Thereafter, in the year 1943, he surrendered the disputed land along with other lands in favour of Tisco by a registered surrender deed and since then the land in question has been in physical possession of the first party. In support of the above contention, the first party filed the original and the certified copy of the registered surrender deed dated 3-7-1943. Besides, two affidavits of Shri R.L.K. Sahu and Shri Shri Saligram Dubey had been filed on behalf of the first party.

The case of the second party Ramchandra Singh is that his father Amrit Singh is in possession of the disputed land for more than 25 years along with other plots of land. The disputed land was formerly in possession of Sadhu Dom who was the recorded tenants of the disputed land. The further case of the second party is that the recorded tenant transferred the said plot of land to Amrit Singh, father of second party in May 1942. In last survey settlement the plot was recorded in the name of Sadhu Dom. Sadhu Dom brought a Title Suit No. 1458 of 1967 against the second party for declaration of his title over the disputed land along with other plots. The suit was decreed on compromise in favour of the father of Ramchandra Singh the second party and in that manner the second party is in peaceful possession openly and adversely for more than 12 years from 1942, The second party has asserted in his written statement that second party Prasidh Narain Pandey and Ram Tabkal Pandey are imaginary persons and they have nothing to do with the disputed land. In support of his case, Ramchandra Singh filed certified copy of the order dated 13-5-1968 passed by Shri J. P. Sinha, Magistrate 1st class, Jamshedpur in Misc. Case No. 443 of 1967 and the certified copy of the decree in Title Suit No, 1458 of 1967. Besides two affidavits were filed one sworn by Jageshwar Mandal and the other by Ramchandra Singh.

Prasidh Narayan Pandey and Ram Tabkal Pandey have been made second party as they put forth their claims before the police. However, they did not appear before the learned Magistrate to claim and asset their title and possession. Hence, it has been rightly held by the trial court that the finding in this case should be confined only to the parties claiming possession of the disputed land.

The learned Magistrate has observed that Sri R.K.L. Sahu and Sri Saligrarn Dubey who have filed affidavits in support of the Tisco, were both Tshsildars of the Land Department of the Tisco. They are paid employees of the Tisco, and it is quite unnatural for them to swear any affidavit against the interest of the Tisco which is the first party of this proceeding. The persons are expected to visit the disputed land only occasionally and may not have the first hand knowledge about the factum of possession of the disputed land.

The first question raised on behalf of the petitioner is that the affidavit filed on behalf of the petitioner have not been considered in accordance with law. The manner in which affidavits filed by the parties in the proceeding u/s 145 of the Code of Criminal Procedure are dealt with by the Magistrates, is by no means uniform and presents some difficulty. But in any case, the order of the Magistrate must show that he has considered the affidavits, that he has applied his judicial mind to the assertion contained therein. In the instant case, as I have shown above, the learned Magistrate has disposed of the affidavits filed on behalf of the first party only on conjecture and surmises. The approach of the learned Magistrate to these affidavits is wrong and the contention raised on behalf of the petitioner must be accepted.

There are other errors and other points of law which vitiate the Magistrate''s order. It has been pointed out that the survey record of 1937 stands in the name of Sadhu Dom. He surrendered the disputed land to the Tisco by a registered deed dated 3-7-1943. Therefore, it was quite wrong for the learned Magistrate to find fault with the survey entry and to expect proof of appeal or revision against the record of right. I have not been pointed out by the learned lawyer appearing for the other side that there is any other survey record prepared after the year 1937 raising a legal presumption in favour of Sadhu Dom or the second party.

The next error pointed out is that the learned Magistrate has considered the compromise decree of the Title Suit No. 1458 of 1967 as a conclusive proof of the very factum of title and possession in favour of the second party. In this title suit the. first party was not impleaded as a party defendant. The title suit had been filed by Sadhu Dom some time in the year 1967 and by the end of that year, namely, on 20th December, 1967, a compromise was effected between the parties and that was ordered to form part of the decree. The disputed plot was one of the plots described in the title suit. Mr. Nageshwar Prasad, appearing for the petitioner, has submitted that the compromise decree was collusive and inadmissible against the first party. Without deciding the nature of the compromise decree, I must hold on the authority of the Full Bench decision of this Court in Harihar Prasad Singh and Another Vs. Maharaja Kesho Prasad Singh, that the compromise decree is not admissible against the first party in the present litigation. In the Full Bench decision, it has been held that a judgment between the plaintiff and third parties is not admissible though the facts found therein may support plaintiff''s title disputed in the present suit. A former judgment, which is not a judgment in rem, nor one relating to matters of a public nature, is not admissible in evidence in a subsequent suit, either as a res judicata, or as proof of the particular point which it decided, unless between the same parties or those claiming under them. The learned Magistrate has erred in considering the compromise decree as absolute in favour of the second party in whose favour the possession has been declared.

Mr. N.N. Ray, learned Counsel appearing for the second party has submitted that the order of the learned Magistrate can be supported even if the consideration of the documentary evidence be excluded from consideration. According to him, the finding of the learned Magistrate is entirely based on the affidavits filed by the parties and the learned Magistrate has only considered the documentary evidence incidently. In my opinion, there is no substance in the contention raised on behalf of the second party. There is no doubt that the learned Magistrate''s finding has been very highly influenced by his consideration of the documents which are either in favour of the first party or inadmissible in evidence. Therefore, the finding of the learned Magistrate cannot be supported as good law.:

The learned Magistrate has not given in his judgment any detail about the alleged construction made by the second party on the disputed land. It is not clear what construction the second party has made and in what area of the disputed land. The question whether the second party took effective control over the whole or any part of the disputed land can only be decided on consideration of these and of similar points.

Mr. Ray further submitted that the preliminary order had been passed by the learned Magistrate on 2-3-1968 which was beyond two months, next before the date of the dispossession of the first party from the disputed land. In this connection, he relied upon the police report dated 4-1-1968. In the police report, there is nothing to show that on 2-1-1968, the first party has been dispossessed and the second party had taken effective physical possession of the disputed land. It also appears that this point was not mooted before the trial court. Therefore, I do not find any force in the contention raised by learned Counsel appearing on behalf of the second party.

In the circumstances mentioned above, I allow the application and set aside the final order. The case is remanded and it will go back to a Magistrate other than the one whose order is being set aside. The Magistrate will not allow the parties to adduce fresh evidence but he will consider the legal evidence on the record with reference to the case of the parties afresh and decide the case according to law. The rule is made absolute.