Sri Krishna Chandra Sarkar vs Sri Surendra Chandra Sarkar

K. Lahiri, J.—In a proceeding u/s 145, Code of Criminal Procedure, the Magistrate does, not decide a party''s title or right to possess the land but expressly reserves these questions to be decided in due course of law. The foundation of his jurisdiction is on apprehension of the breach of the peace, and, with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. The life of the said order is coterminous with the passing of a decree by a Civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court. It is thus seen that to avoid breaking of beads or for preventing breach of peace in respect of any land or water or the boundaries thereof, the Magistrate takes up the proceeding and disposes of the case by a summary enquiry. The jurisdiction of the Magistrate is limited. Without reference to the merits or claims of any of the parties to a right to possess the subject of the dispute, a Magistrate is to decide whether any and which of the parties was, at the date of the preliminary order, in possession of the subject of dispute.

Way back on 15.10.78, the Petitioner alongwith some persons entered into the land in possession of the opposite party, planted bettle nut and banana plants and tried to dispossess the opposite party forcibly and illegally, used dirty language, threatened to beat him up and drive him out by setting fire to his house. Being so threatened, the opposite party who was in possession of the land instituted a proceeding u/s 145 Code of Criminal Procedure. Learned Magistrate was satisfied as to the apprehension of a breach of the peace and commenced proceeding u/s 145 and asked the parties to put their claims in respect of actual possession of the subject matter of the dispute. The parties filed written statements and produced oral evidence Learned Magistrate on consideration of the materials reached the conclusion that the opposite party-first party, was in possession of the disputed land at the relevant date and entitled to a declaration in his favour, and, accordingly ho declared possession of the land in favour of the opposite party until be was evicted there from in due course of law. It may be mentioned that it was a case of emergency and accordingly, the land had been kept under attachment u/s 146 of "the Code". After declaring possession in favour of the first Party-opposite party, learned Magistrate released the land from attachment.

It is thus seen that after the initiation of proceedings u/s 145, the land was attached as the learned Magistrate considered it to be one of the emergency. It is also seen that the land remained under attachment throughout the proceedings. Under these circumstance, when the land remanded under attachment, the question of any party interfering with the disputed land did not arise. There could not have been any possibility of breach of the peace between the parties over possession of the disputed of land. Taking advantage of the situation, the first party was asked as to whether there existed toy breach of the peace the natural and honest statement of the first party was that there was no breach of peace after the initiation of the proceedings. Naturally so. When the land was under attachment, the opposite party could not create any breach of peace.

The sole point which has been urged by Mr. K.P. Sarma, learned Counsel for the Petitioner is that when the first party had admitted in his cross-examination that after the institution of the case there was no breach of the peace the learned Magistrate was legally bound to drop the proceedings acting u/s 145(5) of "the Code". Section 145(5) of the Code provides that "the dispute" between the parties terminates during the continuation of the proceedings u/s 145 and that state of affair is admitted by the parties, say, one of the parties gives up his right to possess the land or when the parties come to an amicable settlement resolving their disputes in respect of the land the parties may come and state before the Court that the dispute has been resolved, the Court is competent to drop the proceedings u/s 145(5) of the Code. When no dispute exists between the parties the proceedings should not continue. However, if one of the parties says that there is dispute which is countered by the other party the dispute is not resolved. When the dispute comes to an end the Magistrate is to cancel his order and stay all further proceedings. It shows that the moment further dispute starts the Magistrate may continue with the proceeding. In the instant case, there is no material to show that "the dispute" between the parties came to an end during the continuance of the proceeding. Even Mr. Sarma, learned Counsel for'' the Petitioner admits that there is existing dispute between the parties. Mr. Amitabh Ray, learned Counsel appearing for the opposite party submits that the dispute continued between the parties until the proceedings were terminated by the final order. Even before this Court, the opposite party has appeared and contests the claim of the petitions as to the non-existence of the dispute. It is thus seen that the dispute continued during the proceedings. Mr. Sarma has failed to show any material to established that the dispute between the parties came to an end during the course of the proceedings. The statement of the first party end his witness was that after the commencement of the proceedings and attachment of the land there was no breach of the peace. This does not mean the cessation of the dispute over the land to give the Magistrate jurisdiction to drop the proceeding. u/s 145(5) of the Code. Under these circumstances, I am constrained to bold that there is no merit in the contention. No other point has been urged.

The termination of the proceedings against the Petitioners is not a permanent road block for the Petitioner. He can institute suit and get appropriate relief, as such, the alternative remedy is wide open to him. Further, by virtue of the impugned order passed on 12.11.80 the opposite party is continuously possessing, the land for about 5; years.

For the foregoing reasons, I hold that there is no merit in the application and accordingly, it is dismissed.