Ratan Chand Sahu and others vs Mohanlal Sahu

Jwala Prasad, J.—These two applications are against an order of the Sub-Divisional Officer of Sasaram, dated the 10th of January, 1922. By this order the Sub-Divisional Officer confirmed, in other words made absolute, his two previous orders and notices issued under S. 144 of the Code of Criminal Procedure. By the first notice, the 2nd party petitioners before us were directed not to interfere with the possession of the 1st party over the Oil and Flour Factory situate in the town of Sasaram. By the 2nd notice he directed the petitioners from interfering with the possession of the 1st party over 42 villages, factories at Sasaram, Dehri and Nasriganj, Rs. 40,000, in cash and jewellery worth Rs. 2,000. Both the parties are members of the same family descended from one Bhikari Sahu. He had six sons. We are concerned only with four of them, namely, Sheo Prasad, Sheogulam Janglal and Thakur Chand. The 1st party are the sons of Sheogulam. The 2nd party are the descendants of Sheo Prasad and Janglal. Thakur Chand, one of the sons of Bhikhari Sahu died childless in March 1921, and the dispute between the parties has arisen since then.

The name of Thakur Chand appears to have been recorded in respect of the Flour Mill and the Factory and the villages along with the members of the 1st Party Mohan Lal and Moti Lal. Mohan and Moti claim all the properties as their own and to be in their exclusive possession. The 2nd party claim to be in possession of the properties jointly, with Mohan and Moti alleging that they were all members of a joint family of which Thakur Chand was the Karta and that the properties in dispute were the joint family properties in possession of all the members, and after the death of Thakur Chand, all of them have succeeded to the properties by right of survivorship and are in joint possession of the same.

The Magistrate of Sasaram held that the 1st party were in possession of the property and accordingly on the 10th of January, 1922, confirmed both the notices set forth above under S. 144 against the 2nd party.

Against the order of the Sub-Divisional Officer, the 2nd party moved the District Magistrate. By his order of the 31st of January the District Magistrate refused to interfere observing that he had no jurisdiction in the matter and that it was open to the 2nd party to move this Court. The following observation of the learned District Magistrate shows that the case is not free from difficulty:

"I admit that I should ordinarily not be prepared, if I could help it, to pass an order u/s 144, Criminal Procedure Code in the case of a dispute involving the property of so much value, but it is difficult to say what other course is open. A case u/s 145, Criminal Procedure Code will not lie if the contention of the second party that the property is joint is sound. If this contention is not sound, as I hold prima facie appears to be the case, no hardship is done to the second party by the order u/s 144, Criminal Procedure Code. Again, a proceeding u/s 107, Criminal Procedure Code is hardly a suitable course in such a case for in such a proceeding the question of possession is bound to be dragged into an interminable length."

It is well to indicate the relative value of the preventive Sections 107, 144 and 145 in the Code of Criminal Procedure in a dispute of this nature. The following authorities have been cited at the Bar :- Basunia Kumari Dasi v. Mohesh Chunder Saha (1912) 17 C. W. N. 944, Tarapada Bhattacharji v. The King Emperor (1919) 1 P.L.T. 72, Sham Lal Mahton v. Rajendra Lal (1919) 1 P.L.T. 594, Tarujan Bibee v. Asamudai Bepari (1900) 4 C. W. N. 426, Krista Alhadini Dasi v. Radha Syam Panday (1902) 7 C. W. N. 118, and Jageswar Das v. Trilochan Das (1919) P. H. C. C. 479. Now, it is obvious that both parties in the present case claim to be in possession of the property in dispute. The 1st party claim to be in exclusive possession. The 2nd party claim to be in joint possession. If the property is found to be in joint possession of both the parties, then no order u/s 45 can be passed and the danger to a breach of the peace by the contending parties with a view to exclude the other from the possession of the property in dispute can only be averted or avoided by binding both the parties or by binding both of them under S. 107, for none of them has a right to exclude the other from the joint possession. If on the other hand, one of them is found to be in exclusive possession of the property then the other side can be restrained under S. 144 from interfering with the exclusive possession of the other party, and if possible by binding him down. Unless the exclusive possession of one of the parties is undisputed or is admitted or is concluded by some decision of a competent Court, an enquiry into the claims of the parties as to exclusive possession or joint possession must be held. It is only when after an enquiry a decision is arrived at as to the possession of the contending parties, separate or joint. I do not think that an order under S. 144 or 107 against one of the parties will be justifiable. Such an order will prejudice the other party and will exclude him from the possession of the property whether exclusive or joint. No Court by its proceeding or order can allow such an advantage to one of the parties. Therefore in a dispute of this kind the danger to a breach of the peace can be averted by issuing a temporary order upon both the parties under S. 144 if the case is of urgency and holding an enquiry into the possession of the parties before confirming the order. The danger to a breach of the peace can also be averted by at once instituting a proceeding under S. 145 of the Code by attaching the property in dispute pending the enquiry.

Now, an enquiry under S. 145 in a dispute of this kind is not inappropriate. The final order under S. 145, Cl. (4) can be withheld when it is proved that the possession is joint, and when so proved the Magistrate can immediately take action under S. 107 or 144 as the case may be against both the parties, but in order to find out as to whether the possession of the contending parties is joint as claimed by one of the parties, or separate as claimed by the other, an enquiry can be held under S. 145 of the Code. Therefore what was open to the Magistrate in the present case was to issue a notice under S. 144 against both the parties and to inquire as to their possession before making his order absolute or to forthwith institute a proceeding under S. 145 and to attach the property and to pass his final order upon the result of the enquiry, either confirming the possession of one of the parties if found to be exclusive, or restraining both the parties under S. 144 from committing a breach of the peace or instituting a proceeding under S. 145 or binding them down as the case may be.

The Magistrate in the present case resorted to a proceeding under S. 144 against one of the parties, when that party was claiming to be in possession of the property though jointly with the 1st party. This was somewhat prejudicial to the case of the 2nd party. The order was confirmed against the 2nd party, and if, as a matter of fact, the Magistrate found upon enquiry that the 2nd party was not in possession of the property the order confirming the notice under S. 144 cannot be disturbed. The Magistrate has, no doubt, come to the conclusion that the 1st party was in possession of the property. His finding is

" Documentary evidence adduced by the 1st party strongly indicate that the 1st party has been in possession since the death of Thakur Chand Sahu. Chaukidari receipts and Khas Mahal receipts both stand in his name."

This is the only reference to the evidence of possession. The Chaukidari receipts and the Khas Mahal receipts referred to therein cannot possibly relate to the 42 villages with respect to which the Magistrate has confirmed his order under S. 144, directing the 2nd party not to interfere with the possession of the 1st party with respect thereto. If the case of the 2nd party is true, the order in question dispossesses him altogether from the 42 villages in which, according to them, they have been enjoying hitherto joint possession. These villages and the shares in these villages have not been specified in the notice under S. 144 or in the final order of Magistrate of the 10th of January.

The enquiry by the police was started when the parties were disputing their possession over the Oil and Flour Factory at Sasaram. The police of Sasaram gave a history of the dispute between the parties and said that the dispute was with respect to all the properties including the right of collection in the villages. The reports of the police of Sasaram, dated the 12th, 15th and the 18th of December, were in favour of the 2nd party, stating that the properties were in joint possession of both the parties. The police asked for a proceeding against both the parties under S. 144 or 107. The report of the police of Nasiganj dated 1st January, 1922, was in favour of the 1st party. The immediate dispute between the parties which tended to a breach of the peace related to the Oil and Flour Factory and the treasure. The larger dispute as to the villages was incidentally brought into evidence. The enquiry of the Magistrate has largely concerned itself with the possession of Oil and Flour business. That apparently is the reason why no particular evidence appears to have been referred to by the Magistrate as regards the possession of the villages. The general reasons given by him are not sufficient to dispose of the claim of the 2nd party, or to show that the 1st party was in an undisputed possession of the villages so as to justify an order under S. 144 against the 2nd party. The enquiry of the Magistrate therefore does not justify an order in favour of one of the parties as to the possession of the property and against the other. Therefore the order of the Magistrate with respect to the 42 villages appears to be without any jurisdiction.

The order of the Magistrate as regards the Oil and Flour Factory and the treasure stands on a somewhat better footing, and the Chaukidari receipts might afford some prima facie evidence in favour of the 1st party; and had the order been confined to these properties only, perhaps I might not have been inclined to interfere; but the dispute in the present case is of an extensive property both moveable and immoveable and I do not think that a temporary order under S. 145 will solve the difficulty or will put an end to the danger to a breach of the peace.

The parties were well represented before me and the arguments in the present case on both sides were at great length and with great ability. Having the benefit of the best advice, better reasons seem to have prevailed in the end and the parties have come to terms so as to have their dispute settled without having recourse to a breach of the peace and also to let their business continue without any prejudice. They have filed a written petition to this Court which I accept and incorporate herein as a part of my order:

" 1. The Oil and Flour Mill at Sasaram and the Mills at Dehri and Nasriganj are to be run by the 1st party until the decision by the final revenue authority in land registration proceedings now pending in the Deputy Collector''s Court at Arrah, subject to the liability of the 1st party to account to the second party and keep proper vouchers. If the decision of the Land Registration Department is in favour of the 2nd party and they are also recorded as co-sharers in respect to the villages in dispute, the Mills in question will be thenceforward held and run jointly by both the 1st and 2nd parties. If the decision of the Land Registration Department is in favour of the 1st party, they will continue to run the Mills and will cease to be accountable to the 2nd party subject to the decision or order of a Civil Court. This agreement will not in any way prejudice the right of either party to have its rights determined by a competent Civil Court, either before or after the decision of the Land Registration cases and irrespective of what those decisions may be."

Of the cash and other valuables and document and Bahis in the locked up room of the Gaddi house at Nasriganj, an inventory will be made by the Sub-Divisional Officer who will also seal and initial each page of the Bahis. The cash, documents, valuables and Bahis may then remain in possession of the 1st party on giving security to the satisfaction of the Sub-Divisional Officer for the cash, valuables and documents. The documents and Bahis will be available to both the parties for use as evidence in the land registration or other proceedings, and the person in charge of them will be bound to produce the same on a proper requisition. Till such security is furnished, the properties mentioned in this paragraph shall remain in charge of the Sub-Divisional Officer."

The 2nd party to remain in possession of the residential house at Nasriganj."

"4. The question of possession of the villages is left open as that will be decided in the Land Registration Department: but the parties undertake that they will not commit any breach of the peace."

"5. The orders passed u/s 144 of the Code of Criminal Procedure, dated the 10th January, 1922 and the proceedings drawn up on the 3rd of January, 1922, and the 2nd of January, 1922 shall not in any way affect the rights of the parties."

Even if the order of the Magistrate u/s 144 were upheld, it is expiring, whereas the present arrangement between the parties is expected to prevent a breach of the peace. The rights of the parties will now therefore be governed, so far as the Criminal Courts are concerned, in terms of the aforesaid agreement between the parties.