SK. Ibrahim vs SK. Salim and Others

B.P. Sinha, J.—This application is directed against an order dated 22.1.1980 passed by Shri S Tirki, Subdivisional Magistrate, Codda in Criminal Miscellaneous Case No. 757 of 1979, whereby he started a proceeding u/s 145 of the Code of Criminal Procedure, hereinafter referred to as the Code, on basis of a petition filed by the opposite party.

The proceeding relates to a large area of land measuring about 196 bighas in Mauza Mednichak, Police station Pathargama, district Santbal Parganas. Earlier to this, a proceeding had bean started u/s 144 of the Code at the instance of the opposite party, which ultimately was dropped on 28.11.1979. Soon thereafter, that is, on 15.12.1979 a petition was filed on behalf of the opposite party praying to start a proceeding u/s 145 of the Code. In that petition, the opposite party stated that they along with the present petitioner were in joint possession over the lands, But as the petitioner here had developed evil intention and wanted to grab the entire produce by forcibly harvesting the same, the opposite party had filed a petition for starting the proceeding u/s 144 of the Code. It was further stated in the said petition that the opposite Party had filed Title Suit No. 12 of 1972 in respect of this land which was ultimately dismissed for default. The opposite party further claimed that they were in joint cultivating possession of the lauds in question and actual partition had not taken place up till now. On the basis of such allegations, the learned Subdivisional Magistrate started a proceeding u/s 145 of the Code, as stated above.

Learned Counsel appearing on behalf of the petitioner submits that the question relating to joint possession of the parties cannot be decided in a proceeding like this. A proceeding u/s 145 is started when a magistrate is satisfied that there was likely to cause a breach of the peace. The parties concerned in the dispute are thereupon noticed to put in a written statement of their respective claims of actual possession of the subject of dispute.

Under Section 145(4) of the Code, a Magistrate is required to decide whether any and which of the parties was at the date of the order made by him under Sub-section (1), in possession of the subject of dispute, without any reference to the merits of the claims of any of the parties to the right to possess the subject of dispute. This shows that the primary object of this provision is to settle the matter temporarily, so far as the criminal courts are concerned and determine the question as to which of the parties was in actual possession at the date of the preliminary order. It is in this light that the question of possession over the disputed land is decided between parties inter se. But where the allegation by one of the disputing parties is that he is in joint possession over the land in question along with other party the matter has to be taken out from the ambit of Section 145 of the Code. The Magistrate is not required to decide such a question. If there be any likelihood of breach of the place on account of such a joint possession, the remedy will surely lie elsewhere. It is, therefore, obvious that on such an allegation a proceeding u/s 145 of the Code should not have been drawn and the same cannot proceed. It may be possible that while finally deciding the proceeding u/s 145 of the Code, the Magistrate finds joint possession But that is a different matter.

The result is that this application succeeds and the order dated 22.1.1980, aforementioned, is quashed.