Rani Bai and another vs Jadunandan Ram and another

Jagat Narayan, J.C.

This is a revision application by Sm. Rani Bai and sadulla against an order passed in favour of Jadunandan Ram in proceedings under S. 145, Criminal P. C. declaring him to be in possession of plots 5, 19 and one-third of 7. I have heard the Learned Counsel for the parties and the learned Government Advocate and have perused the evidence on record.

So far as plots 5 and 19 are concerned there is evidence on record to support the finding of the learned Magistrate and there is no reason to interfere with it. There is no evidence in this case that a copy of the order was affixed to some conspicuous place near the subject of dispute as provided in S. 145(3).

Relying on Chanan Singh v. Emperor, 1938 Lab 345 (AIR V 25) (A) it was argued that the proceedings are vitiated. With all respect I am unable to agree with the view taken by the Lahore High Court in the matter. Both the applicants came to know of the proceedings and filed objections in court against the preliminary order.

Even assuming that there was no affixation as provided under S. 145(3) there was merely an irregularity which did not cause any prejudice to the applicants. It was pointed out by their Lordships of the Privy Council in Abdul Rahman V. Emperor, 1927 PC 44 (AIR V 14) (B) that the bate fact of an omission or irregularity in a matter of procedure unaccompanied by any suggestion of probable failure of justice having been occasioned thereby, is not sufficient to invalidate the proceedings.

So far as plot No. 7 is concerned both parties claimed to be in possession over the whole of it. The learned Magistrate held that Jadunandan Ram was in possession over one-third. There is no evidence in support of this finding on the record. I accordingly set aside the order passed by the learned Magistrate and remand the case for decision according to law with regard to plot No. 7.

The attention of the learned Magistrate is drawn to Muthuswami Thevar v. Rajaram Pandian, 1940 Mad 904 (AIR V 27) (C) in which it was held that a Magistrate cannot declare a party to be entitled to possession over an undivided share, and to Ram Charan v. Mewa Ram, 1920 Cal 904 (AIR V 7) (D) in which it was pointed out that the final order should accurately describe the land covered by it.

The report of the police shows that plot No. 7 was attached from the possession of both the parties. This report is vague and an order passed on such a vague report cannot be executed. The Magistrate should specify the names of the parties to which possession over a particular area is to be given in consequence of his order.