Ramaswamy and Others vs Kunchi alias Gavaran

Ratnavel Pandian, J.—This revision petition arises out of the proceedings u/s 145, Code of Criminal Procedure The short facts of the case

are that one Kunchi alias Gavaran, the Respondent herein, made an application against the Petitioners herein before the Executive First Class

Magistrate, Hosuron(sic) M.C.2 of 1973 on his file, praying for a declaration that he (Respondent) is entitled to possession of the property

described in the schedule ,viz., (1)S. No. 260/1, wet, 2-47-0 hectares and (2) S. No. 260/2, dry 3-63-5 hectares, of Jagadab village, within

Kaveri-patnam sub-registration district in Krishnsgiri taluk, and for necessary orders directing the Petitioners not to interfere with his possession. A

preliminary order u/s 145(1) Code of Criminal Procedure was passed and served on the Petitioners, stating that a dispute between the parties,

which was likely to cause breach of the peace, existed in respect of S. No 260/1 and the Petitioners were required to put in their statements of

their claim in respect of their possession and enjoyment of the land specified in the notices .

The said case was transferred to the Chief Judicial Magistrate, Krishnagiri, and was numbered as M.C. No. 623 of 1973, which was then

forwarded to the District Munsif, Krishnagiri, for deciding the question of possession of the ''subject of dispute''. The District Munsif, took the

matter on his file in O.P. 13 of 1974, and after elaborately discussing the evidence adduced on both sides and the documents marked, and finding

that the Petitioners had been in possession of the properties, directed the parties to appear before the Chief Judicial Magistrate, Krishnagiri, who

thereafter passed the final order declaring that the Petitioner was in possession of the properties described in the schedule to the petition (covering

both S. No. 260/1 and 266/2) and entitled to retain such possession until ousted by due course of law and strictly forbidding any disturbance of his

possession in the meantime. At the outset, I may point out that no argument was advanced on behalf of the Petitioner in respect of the order

passed relating to the property in S. No. 260/1. But Mr. T.K. Rajagopalan, learned Counsel appearing for the Petitioners, mainly contends that the

final order ''declaring that the Petitioner was in possession of the properties described in the schedule to the petition"" which obviously covers the

lands in both S. No. 260/1 and 260/2, is one without jurisdiction as the preliminary order passed u/s 145(1) by the Executive First Class

Magistrate relates to the property in S. No. 260/1 alone and the reference by the Chief Judicial Magistrate to learned District Munsif was made for

deciding the question as to who was in possession of the ''disputed land'' on the date of the preliminary order, wherein the land in S. No. 261/1

alone is mentioned, and there-fore, the present final order covering the lands in both the survey fields is irregular and bad in law. Further, he

vehemently submits that this irregularity is an error of jurisdiction vitiating the operation of the order so far as S. No. 260/2 is concerned.

Mr. Nainar Sundaram, appearing for the Respondent, submits that the omission of S. No. 260/2 in the preliminary order is, however, only an

irregularity in the proceeding and does not affect the Magistrate''s jurisdiction and therefore, when it is complained of only at the stage of appeal or

revision, the validity of the order mutt be judged by the test of prejudice. According to him, it would be quite unjustifiable and unreasonable to set

aside the lengthy proceedings u/s 145 when the facts indicate that the parties could not conceivably have been prejudiced by the absence of

mentioning of one of the items of properties in dispute in the preliminary order, as in the instant case. where it is manifest that both the parties have

known well all the facts in dispute, and contested the matter, with advantage of the knowledge of the whole of the facts, and put up a defence

against them on an elaborate scale, it cannot be said that the Petitioners have been prejudiced by this final order and that the said order is one

without jurisdiction.

Before going into the merits of this case, I shall now discuss the effect of the omission of the land in dispute in the preliminary order and the

importance of the preliminary order as 8 condition precedent in the subsequent proceedings.

Proceedings u/s 145. Crl.P.C., are summary in nature, and its object is merely to prevent a breach of the peace by maintaining one or other of

the parties in possession. Therefore, as it is well-settled, a Magistrate exercising powers u/s 145 gets jurisdiction only when there is a dispute likely

to cause a breach of the peace concerning any land or water or the boundaries thereof within its local jurisdiction, When the Magistrate is satisfied

that there is no likelihood of the breach of the peace, the only proper course for him to do is to decline to proceed u/s 143. As has been observed

by Subba Rao, J. as he there was, in Padmaraju Subba Raju and Others Vs. Padmaraju Koneti Raju and Another, though it often happens that a

Magistrate is moved by an application by the affected party, a preliminary enquiry need not be at the instance of a particular party. The Magistrate

may initiate it suo motu. In other words, the proceedings start not on the complaint of the police report but on a subjective satisfaction of the

concerned Magistrate that a dispute likely to cause a breach of the peace exists. Therefore, the starting point of the proceedings under this section

is not the information received by the Magistrate or the application made to him or the receipt of the police report but his subjective satisfaction

recorded in writing.

The main object of drawing up proceedings u/s 145, Code of Criminal Procedure can only be to inform the parties of the proceedings of the

grounds or of the information which satisfy the Magistrate that a dispute exists concerning any land or water or the boundaries thereof. A

Magistrate, while instituting proceedings u/s 145,''shall make an order in writing stating the grounds of his being so satisfied and requiring the parties

concerned in such dispute to attend his court."" Sub-S.3 of Section 145 is supplementary to Sub-S.(1) and it is framed with the object of giving all

persons interested in the dispute notice of the proceedings before the said Magistrate, so that they might have an opportunity of appearing and

putting their claims, if they have any, and further it provides for the publication of a copy of the order in a conspicuous place at or rear the subject

of dispute. Where a preliminary order u/s 145(1) is not at all passed, the subsequent proceedings culminating in the final order are vitiated. But, if

there is a defective preliminary order resulting in prejudice to either of the parties it would undoubtedly be fatal. Even the subsequent act by another

Magistrate to whom the case was transferred through the District Magistrate would be one based completely on the defective order. There are

some conflicting decisions as to the effect of the omission on the part of the Magistrate (1) to pass the preliminary order as required u/s 145(1)

Crl.P.C.,(2) to state the grounds of his being satisfied as to the existence of a dispute likely to cause breach of the peace, and (3) to comply with

the requirements of sub S. (3) of Section 145, after passing the preliminary order. So far as the omissions in respect of the latter two grounds are

concerned, the preponderance of judicial opinion is that those omissions are curable u/s 537 of the old Criminal Procedure Code, corresponding

to Sections 464 and 465 of the new Code. However, as the present revision is not directed to decide the question of legality of either of these two

grounds, I do not propose to go into that question. Regarding the first ground among the three mentioned supra, viz, the effect of the omission to

issue the order u/s 145(1), it has been observed by Burn, J. in Mariasusai Udyan and Others Vs. Hajee Mahamud Azezudeen Sahib Bahadur, as

follows:

The decisions of this Court so for tend to show that unless there is a preliminary order u/s 145(1) Crl P.C., the Magistrate has no jurisdiction to

pass any order u/s 145(6) Code of Criminal Procedure These decisions, I would say, with all respect, are correct for the reason which I have

already indicated.

The said reason runs in these terms- ""There was nothing to prevent the learned Sub-Divisional Magistrate from drawing up a preliminary order u/s

145(1) Crl. P.C. on the date on which he decided that the case was one properly falling u/s 145 Crl. P.C. The importance of this is that the

question of possession has to be decided with reference to the date of the preliminary order (see Section 145(4) Crl.P.C.) and if there is

preliminary order, the one question which the Magistrate has to decide cannot be decided.

Balakrishna Aiyar J. while deciding the effect of the absence of the preliminary order as required by Section 145(1), after discussing a number of

decisions on the subject, has held in Pakamaraja Naicker and Others Vs. Chidambara Nadar and Another, as follows:

...if I may say so with respect, I prefer the reasoning of Burn J. because, as already explained, u/s 145 Crl P.C., the Magistrate has to determine

who was in possession on a particular date and that date is the date of the order under S 145(1), and if there is no order u/s 145(1), Crl. P.C.

there will be no date with reference to which the question of possession can be determined.

In Siv Narayan Mukherjee and Others Vs. Satish Chandra Ghosal and Others, a Division Bench of the Calcutta High Court, observed that in

drawing a preliminary order in a proceeding u/s 145, the subject matter of the dispute shall be clearly specified and an omission to do so amounts

to a serious defect. Mr. Nainar Sundaram has relied on a catena of decisions in support of his contention, of which I may mention some leading

decisions. In Ratan Singh Vs. Raghubir Singh, it has been held that where the party who is alleged to have dispossessed the other party to a

proceeding u/s 145, knows very well the subject matter of the dispute, an omission to clearly specify it in the preliminary order is only a minor

defect of procedure and can be ignored. The facts of this case are quite different from the facts of the present case. In the above case, the only

dispute related to a piece of land behind the complainant''s house and as such both the parties knew very well the subject matter of dispute. The

omission was in respect of clear specification of the land. However, in the above case, the learned Judge has approved of the principle laid down

in Siv Narayan Mukherjee and Others Vs. Satish Chandra Ghosal and Others, mentioned supra. He has also referred to the decision in In re

Petition of T.A Martin 62 All. 296 wherein it has been observed that the preliminary order passed in that case by the Magistrate gave no mention

as to the subject of dispute and it left the persons to whom the notice was ordered to be issued quite in the dark as to the property in regard to

which they had to set forth their respective claims. The Allahabad High Court (per Banerjee, J.) in that case held that inadequacy of such order

gave the High Court jurisdiction to interfere and the order of the Magistrate was set aside. In my view, the facts in the said Allahabad decisions and

the Calcutta decision in Siv Narayan Mukherjee and Others Vs. Satish Chandra Ghosal and Others, are more applicable to the present case. On

the other band, as I have already mentioned, the facts in Ratan Singh Vs. Raghubir Singh, are distinguishable from the facts of the present rase and

therefore it is not helpful to the Respondents herein.

In Khudiram Mandal v. Jittendranath 1952 Cri. L.J, 1411 the Calcutta High Court has held that the mis-description of the property will amount

to only an irregularity not vitiating the final order and it cannot be a ground for interference in revision as it has not caused any prejudice. In the

above said case, the Calcutta High Court has gone into the question of mis-description of the property, but not the entire omission of property, and

as such this decision is not applicable to the present case.

Then the learned Counsel relies on Padmanaba v. Bindhu Bushan AIR 1958 Tri 37 at 138(sic) wherein it has been held:

In any case the partial were fully aware as to what lands were the subject matter of the dispute and the proceedings under S. 145 and did not, it

appears, raise any objection before the learned Sub Divisional Magistrate In these circumstances, any mis-description of the property cannot be

treated as anything except as a mere irregularity which does not vitiate the final order.

In this case also, only a mis-description of the property was involved.

The next case on which reliance was placed was State of Madhya Pradesh v. Premlal AIR 1957 Nag. 27 wherein it has been held that where

once a valid preliminary order u/s 143(1) has been passed, subsequent errors or omissions relating to procedure or to specification of property in

the preliminary order do not vitiate the subsequent proceedings. In this case, a valid preliminary order was passed. Their Lordships held that only

subsequent errors or omissions relating to procedure or to specification of property in the preliminary order do not vitiate the subsequent

proceedings. On the facts of the case, some additional lands were specified later on after application filed but before the commencement of the

hearing. Under these circumstances it was held as stated supra. Therefore, this ruling will not be of any assistance to the Respondent.

Reference was then made to the decision is Sanjhi v. Tirathram AIR 1969 J.& K.16 There no miscarriage of justice was caused to the party

by the fact that the preliminary order was not drawn up strictly in accordance with the provisions of Section 145, that the parties were present

before the Magistrate and bad led evidence, but no objection was taken by any party and that the preliminary order was defective. Under those

circumstances, it was held that it would not be proper to quash the proceedings and allow the parties to agitate the matter once again. From the

judgment in that decision, the full facts of the case art not clear. Nevertheless, it seems that the Magistrate passing the preliminary order had not

followed certain directions contained in the Code. Under such circumstances, the Division Bench held that if no miscarriage of justice was caused,

it would not be proper to quash the proceedings and allow the parties to agitate the matter once again in the trial court, which would involve them

in unnecessary expenses and inconvenience. Therefore, in my view, the above decision will not render any help to the Respondent.

Finally, the learned Counsel drew my attention to the decision in Mettupalli China Kondappa (died) by L. Rs. Chinna Venkatareddy and

Others Vs. Ramsetty Ram Row and Another, wherein Pakaramaraja Naicker v. Chidambara Nador AIR 1955 Mad. 220 has been relied on. In

this Mettupalli China Kondappa (died) by L. Rs. Chinna Venkatareddy and Others Vs. Ramsetty Ram Row and Another, it has been observed

that where a preliminary order u/s 145(1) is not at all passed, the subsequent proceedings culminating in the final order are vitiated. But if there is a

preliminary order, however defective it may be, the defect would not be fatal, unless it has resulted in prejudice. In this case, the endorsement was

signed by the Head Clerk and the Magistrate had endorsed ''yes'' with his initial thereunder. Even the notices u/s 145(1), which were issued to the

parties, were only under the signature of the Head Clerk for the Magistrate. Under these circumstances, the learned Judge observed at page 170-

The law does not attach any value to an order trade by a person other than the Magistrate himself. It follows, therefore, that the notice referred to

cannot be deemed to be an order u/s 145(1).... Mere communication of the order, though there was no such order as contemplated by S. 145(1),

at all, would not make it an order u/s 145(1) made by the Judicial Magistrate,

In the light of the above observations, it seems that the learned Judge has gone to the extreme preposition of law and held that ''if there is a

preliminary order, however defective it may be, the defect would not be fatal unless it has resulted in prejudice. In my view, this proposition will not

be applicable to the facts of the present case, since, as is rightly contended by the learned Counsel for the Petitioners, the final order in this case is

void as one passed without jurisdiction. Though in the above case, the proposition of law was made as mentioned supra, on account of the peculiar

facts of the case, his Lordship held that whether any prejudice was caused or cot, the irregularity committed in that case was grave enough going to

the root of the jurisdiction amounting to an illegality and therefore the order of the Magistrate was liable to be set aside. Thus, it is clear from this

decision that even if no prejudice is caused to the parties, if any grave irregularity amounting to an illegality is committed, then the order could be

quashed. Now, in the present cue, we have to see whether there is a total absence of a preliminary order in respect of the property S. No. 260/2

and whether that omission irrespective of the fact whether there was any prejudice caused or not, is an irregularity grave enough going to the very

root of the jurisdiction amounting to an illegality which ultimately will vitiate the entire proceedings, and whether the order of the Magistrate is,

therefore, liable to set aside. It is manifest (1) that the subject of dispute in a proceeding u/s 145 Code of Criminal Procedure must be fully

ascertained and (2) that the subjective satisfaction of the Magistrate that a dispute likely to cause breach of the peace exists in a condition

precedent to initiate the said proceedings. If one of the subject matters of dispute mentioned in the application made by the party or in the police

report is completely left oat as in this case, while passing the preliminary order u/s 145(1), Crl.P.C., it means that the Magistrate is either not

satisfied that a dispute likely to cause breach of the peace does exist in relation to that particular property or he is not of the view that an order u/s

145, Crl. P.C., is necessary with regard to that item of property. It is abundantly clear, therefore, that those lands in dispute in respect of which the

breach of the peace exists must be ascertained and expressly mentioned in the preliminary order, before the reference u/s 146, Code of Criminal

Procedure is made, so that both the parties to the dispute may be put on notice.

But, it is not for the civil court sitting on a reference to go beyond the scope and give a finding of possession with regard to a property not

mentioned in the preliminary order.

The scope of reference u/s 146 is of a limited character. The civil court gets jurisdiction only on a reference being made to it by the Magistrate

and its jurisdiction is confined to disposing of the matter so referred. In other words, the civil court is strictly restricted to an examination of the

question and the consideration of the dispute which has been expressly referred by the Magistrate for decision. Neither the scope of the enquiry

can be enlarged, nor its powers extended even at the instance of the parties who have not obtained any order of reference, because making

reference is an act within the jurisdiction or authority of the Magistrate. Sub-S.(1) of Section 146 lays down that a Magistrate can make a

reference to civil court (1) if he is of opinion that none of the parties was in possession of the subject matter of dispute on the date of the

proceeding or (2) if he is unable to decide as to which of them was then in possession. Therefore, Section 146 Crl.P.C., is a sort of a corollary to

Section 145 and the legality of an order under it depends on its having been preceded by legal proceedings u/s 145. Applying the above principle

to the instant case, I am of opinion that the final order passed by the Chief Judicial Magistrate regarding S. No. 260/2 on the basis of the finding of

the civil court is one without jurisdiction, since the reference by the magistrate was strictly confined to the decision of the dispute regarding S. No.

269/1 which was the only property mentioned in the preliminary order u/s 145(1).

The main submission of Mr. Nainar Sundaram that the Petitioners have not raised any objection about the omission of S. 260 / 2 during the

entire proceedings cannot hold good, because unless there is a preliminary order u/s 145(1), the Magistrate had no jurisdiction to pass any order

u/s 145(6) The non-objection of the parties during the proceedings about the omission or vagueness .or unascertainability of the land in dispute has

no bearing on the final order. At this juncture, it may also be noted that the Chief Judicial Magistrate, while passing the order forwarding the papers

to the District Munsif, has stated as follows:

In the result, u/s 146(1) Crl. P.C., the records ate forwarded to the District Munsif of Krishnagiri, to decide the question as to which of the parties

was is possession of the subject of dispute.

It may be noted that the subject of dispute in this case, as found in the preliminary order, is only in respect of S. No. 260/1 and the learned Chief

Judicial Magistrate under these circumstances, should be deemed to have referred the matter for decision to the District Munsif only in respect of

S. No. 260/1. The above opinion of mine is also fortified by a decision of this Court in Mariasusai Udyan and Others Vs. Hajee Mahamud

Azezudeen Sahib Bahadur, . In the said case, Burn, J. has held at p. 825.

The decisions of this Court so far tend to show that unless there is a preliminary order u/s 145(1) Crl.P.C., the Magistrate has no jurisdiction to

pass any order u/s 145(6) Crl.PC. These decisions I would say with all respect are correct for the reason which I have already indicated. The

conduct of the Petitioners in allowing the learned Magistrate to go on without objection is no doubt reprehensible but it cannot validate an order

which is without jurisdiction. The order of the learned Sub-Divisional Magistrate is therefore set aside,

A Division Bench of the Patna High Court in Shreedhar Thakur and Others Vs. Kesho Sao and Others, has held-

The mere fact that the parties knew the disputed land is hardly of any use, because they may act agree as to its identity in case of future dispute.

For the reasons mentioned above, I hold that the final order in respect of S. No. 260/2 is one without jurisdiction which undoubtedly is a grave

irregularity amounting to an illegality and has caused prejudice to the Petitioners as they were not put on notice in respect of that property.

Therefore, I allow this revision petition in part and set aside the operative portion of the final order of the Chief Judicial Magistrate, so far as it

relates to S. No 260/2 and dismiss the rest of the petition viz, in respect of S. No. 260/1.

Crl.M.P 2347 of 1974-This is a petition filed by the Petitioners in Crl R.C. 536 of 1974, to quash the proceedings of the Chief Judicial

Magistrate, in to far as it relates to S. No. 260/2. In view of my order in Crl. R.C. 536 of 1974, this petition is allowed.

Crl. M.P. 2656 of 1914: It is left to both the parties to take appropriate proceedings in proper form to safeguard their rights if they so desire in

respect of S. No. 260/2.