Ramjharia and another vs Piar Koeri

Kulwant Sahay, J.—The petitioners were the second party in a proceeding u/s 145 of the Criminal Procedure Code. The dispute relates to the possession of three plots of land bearing survey Nos. 1100, 1106 and 1153 in village Parbatpur. These plots formed the raiyati holding of two brothers Singar Koeri and Piar Koeri. Singar Koeri died about four years ago and Musst. Ramjharia of the second party is his widow. The surviving brother Piar Koeri is the first party in these proceedings and his case is that the two brothers were joint and since the death of Singar Koeri he has been in exclusive possession of the three plots by right of survivorship. Musst. Ramjharia of the second party claims that her husband was separate from the first party and that she has been in exclusive possession of half of the threeplots in dispute as the heir of her husband. Mukhan Ahir, the other member of the second party claims actual possession of a part of the land in dispute as a mortgagee from Musst. Ramjharia.

On the 13th October 1922, the first party filed a petition before the Sub-Divisional Officer of Arrah setting out the above facts and stating, that on the 10th October 1922 he was obstructed by the second yarty when he went to sow Khesari crops in the lands; that there was a likelihood of the breach of the peace and he prayed for proceedings u/s 107 of the Criminal Procedure Code. The Magistrate thereupon made an order upon the Police to enquire and report by the 7th November 1922 and to see that no breach of the peace takes place. The Police submitted a report and on the 7th of November 1922 the Magistrate ordered the proceedings u/s 145 of the Criminal Procedure Code to be drawn up fixing 23rd November 1922 as the date for filing written-statement and adducing evidence. After some adjournments the second party filed written-statement on the 21st December 1922. The first party prayed for time and the case was adjourned to the 16th January 1923. On the 16th of January, it appears that no written-statement was filed by the first party, but he was present in Court with his witnesses and was ready to go on with the case. The Magistrate thereupon made the following order on the 16th January 1923; "Case ready; transferred to Moulvi Abdul Gafoor for favour of disposal". On the same date the case was taken up by Moulavi Abdul Gafoor; some witnesses were examined on behalf of the first party, and on the petition of the first party the case was adjourned to the 29th of January in order to enable the first party to produce more witnesses. On the 29th of January three more witnesses were examined for the first party and three witnesses were examined for the second party, and on the 5th of February 1923, the Magistrate made his final order declaring the first party to be in possession and forbidding disturbance of such possession. The second party now applies for revision of this order.

The first point taken by the learned counsel on behalf of the second party is that as no written-statement was filed by the first party, the learned Magistrate had no jurisdiction to make an order in favour of the first party, Sub-section 1 of section 145 provides that "whenever a District Magistrate Sub-divisional Magistrate or Magistrate, of the First Class is satisfied from a police report or other information that a dispute likely to cause the breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and require the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written-statements of their respective claims as respects the facts of actual possession of the subject of dispute." In order to give jurisdiction to a Magistrate to proceed u/s 145 Cr. P.C. all that is necessary is that he should be satisfied of there being a likelihood of a breach of the peace and he should make a note stating his grounds of his being so satisfied and require the parties to attend and to put in written statements of their claims. This was done in the present case. The Magistrate was satisfied upon the police report and he made an order requiring the parties to put in written statements. Now, if a party fails to put in a written statement that would not take away the jurisdiction of the Magistrate to proceed with the case. The proceeding being properly initiated it was incumbent on the Magistrate to make the enquiry and to take such evidence as the parties offered irrespective of the fact that one or other of the party failed to put in a written statement. The Magistrate would not be justified in refusing to proceed with the case because the parties neglected to file a written statement on the date fixed; he has to take evidence, if offered by any of the parties, and to decide the case upon such evidence. Reference in this connection may be made to the case of Goluck Chander Mytee 11 W.R. Cr. R. 9. This case was undoubtedly decided under the Act of 1861 but the principle enunciated therein is applicable to proceedings under the present Code. The learned counsel for the petitioner argues that the written statement is the basis upon which a case u/s 145 proceeds and it is upon the allegations contained in the written statement that the parties know what the case of their opponent is, and have to adduce evidence accordingly; but in my opinion the basis of a proceeding u/s 145 is not the written statement but the police report or other information from which the Magistrate is satisfied about the fact of the likelihood of a breach of the peace In the present case we find that the case sought to be made by the first party was clearly set out in his petition of the 13th of October 1922 and when he appeared on the date fixed for hearing and adduced evidence the Magistrate was bound to receive such evidence and to decide the case The learned counsel relies on sub-section 4 of section 145 which provides that the Magistrate shall, without reference to the merits of the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, and receive the evidence produced by them, and contends that if no written statement is filed, the Magistrate cannot proceed further, or, in any event, cannot make any order in favour of the party failing to file a written statement; but this sub-section does not say that if no written statement is filed the Magistrate cannot make the order. If no written statement is put in he certainly cannot peruse it, but all the same he is bound to hear the parties and to take the evidence produced by them. I am therefore of opinion that the not filing of the written statement by the first party did not take away the jurisdiction of the Magistrate to make an order in his favour.

The second point taken is that as no written statement had been filed on the 16th of January 1923 the learned Sub-divisional Officer had no jurisdiction to transfer the case to any other Magistrate for disposal, and reliance is placed upon the case of Misri Chowdhury v. Narsing Prasad [1921] 2 P.L.J. 186: 22 Cr. L.J. 483: 62 I.C. 179. In that case the proceeding was drawn up by the Sub-divisional Magistrate and in the order initiating the proceeding the learned Magistrate directed the parties to appear before another Magistrate on the 28th of August 1920 and to file their written statements there. This Court held that it was illegal for the Sub-divisional Magistrate to direct the parties to appear before another Magistrate and to file their written statement there, inasmuch as section 145 requires the Magistrate to draw up proceeding calling upon the parties concerned to attend his Court and to file written statements. In the present case the case was not transferred until the parties were ready and one of the parties had filed his written statement. This objection therefore also must be disallowed.

The third objection taken is that the second party claims possession of the plots in dispute jointly with the first party, and, where the dispute is between two parties, one of whom claims joint possession, proceedings u/s 145 cannot be maintained, and reliance is placed on the case of Sham Lal Mander v. Rajendra Lal [1920] 1 P.L.T. 594: 21 Cr. L.J. 790: 58 I.C. 518. That was a case of admitted joint proprietors. In the present case each party claims exclusive possession of one half of the plots in dispute. This objection is without any foundation and cannot be allowed.

The result is that this application is dismissed.