Rambarai Rai vs Sagina Rai and others

Kulwant Sahay, J.—This is an application by the second party in a proceeding u/s 145 of the Code of Criminal Procedure. The dispute related to the possession of about ten plots of lands lying in mauzas Kudaria and Parasrampur. Babu Hit Narayan Singh of the first party is the admitted landlord and one Otar Rai was the raiyat of these plots. At the time of the Survey the lands in dispute were found in the possession of Ganpat Sao and others, mortgagees of Otar Rai. Ganpat Sao assigned the mortgage to one Ganendra Prasad in August 1911 and Ganendra Prasad in his turn assigned one plot bearing plot No. 485 to one Ramkaran Rai and the rest to Rambarai Rai of the second party. The landlord, Babu Hit Narayan Singh, brought a suit for rent against Srikishun Rai, the heir of Otar Rai. He obtained a rent decree, took out execution thereof, sold the holding and purchased it himself in March 1922. Delivery of possession was given to him by the Civil Court in April 1922 and since then he claims to have been in possession. Babu Hit Narayan Singh had applied to annul the encumbrance against Hira Sao and others, the heirs of the original mortgagee Ganpat Sao. The second party raised various objections in the Court below as regards the decree and sale being illegal inasmuch as Srikishun Rai against whom the rent decree was obtained was not the heir of Otar Rai; and as regards Ganendra Prasad and the assignees from him not being parties to the proceeding for annulling the encumbrance, they also stated that after the delivery of possession, Ramkaran Rai, the assignee of plot No. 485, had made an application to the Civil Court under Order XXI rule 100 of the CPC and he was restored to possession by order of the Civil Court of plot No. 485, and therefore, in so far as Ramkaran Rai was concerned he was in possession and he was entitled to retain possession of the said plot No. 485.

The learned Deputy Magistrate carefully considered the case of the parties and he held that the objections as regards the validity or otherwise of the decree or the proceedings to annul the encumbrance were matters beyond the scope of an enquiry in a proceeding u/s 145 of the Criminal Procedure Code; and, in my opinion, he was right in the view taken by him. He gave effect to the delivery of possession of the Civil Court and declared the first party to be in possession of the plots other than plot No. 485 in respect whereof he made an order in favour of Ramkaran Rai. It has been argued by the learned Vakil for the petitioners that the learned Deputy Magistrate was wrong in giving effect to the delivery of possession without coming to an independent finding upon the evidence adduced before him as regards the fact of actual possession. He argues that it is not always incumbent upon the Magistrate to give effect to a decree or a proceeding of a Civil Court relating to delivery of possession but that it was his duty to consider the evidence produced before him in order to find as to which party was in actual possession on the date of the initiation of the proceedings He relies on the cases of Shahabaj Mandal Vs. Bhajahari Nath, Kulada Kinkar Roy Vs. Danesh Mir, and Parmesher Singh v. Kailashpati (1916) 1 P.L.J. 336: 1 P.L.W. 95: 17 Cr. L.J. 369: 35 I.C. 801 (F.B.). Now all that these cases lay down is that a Magistrate in deciding the question of possession u/s 145 of the Code is not in every case bound by the previous order of a Civil Court or Criminal Court relating to the possession of the subject matter of dispute; and that the weight to be attached to any such previous order depends upon the facts and circumstances of the particular case before him. In my opinion, when there is a recent Order of a Civil Court delivering possession to a particular party, that Order ought ordinarily to be respected and given effect to by a Magistrate u/s 145 of the Code of Criminal Procedure, unless and until there was something shown which might induce the Magistrate to hold that subsequent to the delivery of possession something had happened which had the effect of dispossessing the party to whom possession had been delivered by the Civil Court. In the present case there is no such allegation. The learned Vakil argues that as a matter of fact there was no actual delivery of possession, but the finding of the Court is that there was actual delivery of possession. In this view of the case the learned Magistrate had full jurisdiction to make the order that he has made

This application is, therefore, dismissed.