Smt. Bana Bhotrani and Others vs Bhadra Bhotra and Another

P.C. Misra, J.—The legal represeptatives of the original plaintiffs are the appellants against a reversing judgment. The common ancestor of the plaintiff and defendants 1 and 2 is one Kusan Bhotra who had three sons. Arjun, Fagu and Sunadhar The original plaintiff. was the son of Arjun. Defendant No. 1 is the son of Fagu and his son is defendant No. 2. Sunadhar died issueless. The plaintiff''s case is that the suit land belonged to defendant No, 1_ which fell to his share by partition Subsequently by an oral sale the suit lands were purchased by the plaintiff and he took delivery of possession in pursuance of the same. He was in peaceful possession of the suit properties till 1975 when defendants 1 arid 2 created some trouble which gave rise to a proceeding u/s 145, Cr. P. C. By order dated 26-10-1976 the learned Magistrate attached the suit land being unable to- decide as to which of the parties was in possession till a competent Court decides the issue. The plaintiff thereafter filed the suit praying for declaration of right, title and interest and for possession. The defendants entered into contest and denied the plaint allegation They denied the oral sale by virtue of which the plaintiff claims to have been put in possession and maintained that it is the defendants who had been all through in possession since the time of their father. Both parties adduced oral evidence in support of their respective case and the learned trial Court decreed the plaintiff''s suit on a finding that the plaintiff had been in possession of the suit property for more than the statutory period thus acquiring title thereto He, therefore, declared that the plaintiff is entitled to possession of the suit land. Defendants 1,and 2 carried up the matter in appeal which was ultimately transferred to the Court of the Addl. Subordinate Judge, jeypore, and numbered as T. A. No. 9/79, The learned lower appellate Court on a consideration of the evidence on record reversed the findings of the learned trial Court and found that the plaintiff has failed to establish his title to the suit property and, therefore, dismissed the suit. In this second appeal the plaintiff challenges the correctness of the judgment of the lower appellate Court. The legal grounds on which the second appeal was admitted is to the effect that the lower appellate Court has gone wrong in considering the question of title as it was a suit u/s 146(1), Cr. P. C, in which the limited scope is to find out as to which of the parties was in possession of the suit property on the date of the preliminary order u/s 145, Cr. P. C, irrespective of title being found with the party in possession.

2 Mr. Ramdas, learned counsel appearing for the appellant, has invited my attention to the provisions of Section 146(1), Cr. P C, which reads as follows :

"146. Power to attach subject of dispute and to appoint receiver. (1)lf the Magistrate at any time after making the order under Sub-section (1) of Section 145 considers the case to be one of emergency or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof :

Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute."

His contention is that the expression ''until - a competent Court has determined the rights of the parties thereto" occuring in the said section necessarily puts a limit to the power of the civil Court in a suit filed by any of the parties for determination of the issue which the Magistrate was unable to decide. The aforesaid argument, in my view, is thoroughly misconceived. In the old Criminal Procedure Code (Act v. of 1898) the provision in Section 146(1) was that if the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he may attach it, and draw up a statement of the facts of the case and forward the record of the proceeding to a civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in Sub-section (4) of Section 145; and he shall direct the parties to appear before the civil Court on a date to be fixed by him. Thus the old Code required the Magistrate to refer the matter to the civil Court for determination as to which or any of the parties was in possession of the subject-matter of the dispute on relevant date. In such a case the civil Court is required to confine itself necessarily to the point of reference and not to consider matters beyond the scope of reference. But in the new Criminal Procedure Code (Act II of 1974) there has been a substantial change in the language of the section. It requires the Magistrate to attach the subject-matter of dispute in the event he is unable to satisfy himself as to which of the parties was then in such possession until a competent Court determines the rights of the parties thereto, with regard to the person entitled to the possession thereof. Therefore, in the event the Magistrate fails to determine as to which of the parties was in possession of the disputed property and attaches the same. u/s 146(1), Cr. P. C, any of the parties thereto may file a suit in the civil Court for determination his rights with respect to the subject of dispute and for a declaration that he is entitled to possession thereof. There can be no limitation as to the jurisdiction of the civil Court to entertain and decide questions relating to title to the suit property merely because dispute as to (title was not competent to be decided by the Magistrate in a proceeding u/s 145, Cr. P. C. A more comprehensive suit may be filed by any of the parties for declaration of his title and possession, after the Magistrate passes an order of attachment u/s 146(1), Cr, P. C. In such a suit the jurisdiction of the civil Court to go into and decide the question of title cannot be circumscribed by any limitation. Thus I do not find any merit in the afore- said ground taken up by Mr. Ramdas in this appeal.

Mr. Ramdas next contended that the lower appellate Court has not taken into consideration certain admissions made by defendant No. 1 himself examined as D. W. 3 and on that basis prayed for remand of the suit. Having gone through the evidence I do not find that any useful purpose will be served by remand of the suit to the lower appellate Court as the alleged admissions are in consequential so far as the result of the suit is concerned.

In the result, there is no merit in this appeal, which is accordingly dismissed. There shall be no order as to costs.