Surendra Singh and Others vs Jang Bahadur Singh and Another

Nagendra Prasad Singh, J.—The members of the second party in a proceeding u/s 145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as ''the Code'') are petitioners in this writ application which has been filed for quashing an order passed in the said proceeding. The impugned order has been passed by the learned Magistrate after receipt of a finding from the learned Munsif u/s 146 of the said Code. It appears that initially a proceeding u/s 107 of the Code was initiated in the year 1968 which was converted into a proceeding u/s 145 of the Code on 26-8-1970. The subject matter in dispute was attached during the pendency of the proceeding. The dispute related to seven plots of land details whereof were given in the proceeding. The learned Magistrate referred the dispute to the Munsif in accordance with the provisions of Section 146 of the Code on 30-11-1973. The learned Munsif, on a consideration of the materials on record and hearing the parties, recorded his finding on 12-8-1977 holding that the first party-respondent was in actual physical possession of the subject matter of the dispute on the date of the initiation of the proceeding u/s 145 of the Code. A criminal revision application was initially filed which was heard by a learned single Judge of this court. On behalf of the petitioners it was urged that whatever may be said so far as the other plots in dispute are concerned, but so far as the three plots, namely, plot nos. 1360, 1361 and 2223 are concerned; the learned Magistrate should have either dropped the proceeding or should not have passed an order of restraint against the petitioners because the petitioners came in possession thereof during the pendency of the proceeding in accordance with the provisions of Sub-section 3(ii) of Section 16 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as ''the Act''). The learned Judge has referred the case for consideration before a Division Bench. In view of the decision of the Supreme court in the case of (1) Chandrasekhar Singh and Others Vs. Siya Ram Singh and Others, , learned counsel appearing for the petitioners sought permission to convert the revision application into an application under Articles 226 and 227 of the Constitution which was granted, and the application has been heard as a writ application.

The lands in dispute admittedly belonged to one Raghubar Singh. According to the case of the first party-respondent, said Raghubar Singh had executed a registered deed of will in favour of his daughter Kishori Devi on 7-7-1964. After his death, said Kishori Devi came in possession of his properties, including the lands in dispute. Kishori Devi executed five sale deeds on 24-8-1968 and four sale deeds on 29-8-1968 in respect of the plots in dispute. Those sale deeds were executed in the names of different family members of the first party-respondent Jang Bahadur Singh, and since the date of the execution of the sale deeds first party and his family members are in possession thereof.

So far as the case of the second party-petitioner is concerned, according to them Raghubar Singh having no male issue, used to get the lands cultivated through bataidars and the uncle of the petitioners and the petitioners were inducted as bataidars of the lands in dispute and they have remained in possession thereof in that capacity. According to them, the sale deeds which had been executed by Kishori Devi in favour of the family members of the first party were inoperative and were without any consideration money.

At the time of the final hearing of the proceeding, special claim in respect of the three plots mentioned above was made on the basis of the orders passed in three cases which had been filed under Sub-section (3) of Section 16 of the Land Ceiling Act. In respect of the transfer of plot no. 1360, an application under Sub-section (3) of Section 16 of the Land Ceiling Act was filed on 29-10-1968 after making the necessary deposit giving rise to case no. 15 of 1968-69. Another application in respect of plot no. 2223 was filed on that very day giving rise to case no. 16 of 1968-69. For plot no. 1361, an application u/s 16(3) of the aforesaid Act was filed on 25-11-1968 giving rise to case no. 17 of 1968-69. In these cases the sons and grandsons of respondent no. 1 were impleaded who had purchased those plots from aforesaid Kishori Devi. Ultimately, all the three applications were allowed and Kishori Devi, the vendor, was directed to execute sale deeds in favour of the pre emptor, i.e., the uncle of the petitioners. The appeal, revision against such orders were also dismissed by the authorities concerned. Thereafter, on 14-11-1975, delivery of possession was effected in accordance with Sub-section (3)(ii) of Section 16 of the Land Ceiling Act, and the uncle of these petitioners and the petitioners, who are his legal representatives, came in possession thereof. The first party-respondent of this case filed an application for recall of the aforesaid order dated 14-11-1975 effecting delivery of possession. That petition was rejected on 12-3-1976. A copy of that order is Annexure-1 to the supplementary affidavit filed on behalf of the petitioners on 19-10-1979. It may be mentioned that the appeal filed by respondent no. 1 against the aforesaid order before the Collector, Patna challenging the delivery of possession in favour of the petitioners was also dismissed by the order dated 6-11-1979, a copy whereof has been filed before this court along with an affidavit.

According to the petitioners; the learned Magistrate should have either dropped the proceeding so far as the aforesaid three plots are concerned taking note of the fact that during the pendency of the proceeding admittedly these petitioners had come in possession of those plots in the land ceiling case, or, while declaring the first party to be in possession on the date of the initiation of the proceeding u/s 145 of the Code, the learned Magistrate should not have restrained these petitioners from going upon the lands in view of the subsequent event. Learned counsel, in view of the judgment of the Supreme Court in the case of Chandrasekhar Singh and others (Supra) did not challenge the order passed by the Magistrate on the basis of the finding recorded by the learned Munsif in respect of other plots.

A Magistrate has been vested with the power of initiating a proceeding u/s 145 of the Code whenever there is apprehension of breach of the peace concerning land and for avoiding the breach of the peace he has to decide as to which of the parties to the dispute was in actual physical possession of the land in question. Section 146 of the old Code enables the Magistrate to refer the dispute to Civil Court if he is of the opinion that none of the parties was in such possession or he was unable to decide as to which of them was in such possession of the subject matter in dispute. Before doing that, he has to attach the subject matter of dispute. Sub-section (IB) of Section 146 requires him to decide the dispute in accordance with the finding of the Civil Court. As such, once the finding was recorded by the Civil Court, the learned Magistrate had no option but to pass an order in conformity thereof. That order is not to be questioned in appeal, review or revision. There was some controversy, which has been set at rest by the aforesaid Supreme Court judgment.

Learned counsel appearing for the petitioners, however, submitted that the bar placed Sub-section (ID) of Section 146 of the Code is not applicable to the writ jurisdiction and the power under Articles 226 and 227 should be exercised by this court, to correct the order of the learned Magistrate so far as plot nos. 1360, 1361 and 2223 are concerned; otherwise it will lead to an anomalous position. By this the learned counsel meant that whereas the Collector a quasi judicial authority in exercise of the power conferred by Sub-section (3) of Section 16 of the Land Ceiling Act, has put the petitioners in possession of those plots in due course of law, the Magistrate by the impugned order has restrained the petitioners from going upon those plots, and both the orders are final in the sense that now there is no question of challenging the legality thereof by way of appeal or revision. So far as the order passed by the Collector in the land ceiling case is concerned, it cannot be questioned even before the Civil Court in view of Section 43. In my view, the contention of the learned counsel appearing for the petitioners, is correct that two competent authorities under two enactments have passed final orders which are conflicting in nature. Section 43 of the Land Ceiling Act says in clear and unambiguous terms that except as provided in that Act no Civil Court shall have jurisdiction to settles decide or deal with any question which is by under that Act, required to be settled, decided or dealt with by the Board of Revenue, the Commissioner, the appellate authority or the Collector. It further says that any order passed by the Board of Revenue, the Commissioner, the appellate authority or the Collector shall not be questioned in any Court. The result whereof will be that the order dated 14.11.1975 putting the petitioners in possession of the three plots aforesaid subject to appeal or revision became final. It is an admitted position that even appeal against that order was dismissed and no revision is pending.

Now the question which has to be answered is as to whether in such a situation when it was brought to the notice of the learned Magistrate before he had passed the final order in question on 1.5.1978, what was the option left to him. The learned Magistrate has refused to take note of delivery of possession under the Land Ceiling Act saying that he had to pass the final order in conformity of the finding of the learned Munsif. It is true, Sub-section (IB) of Section 146 of the Code requires the Magistrate to dispose of the proceeding in conformity with the decision of the Civil Court. The Civil Court, as provided in Sub-section (1) of Section 146 itself has to decide as to which of the parties was in possession of the subject matter of dispute on the date of initiation of the proceeding u/s 145 of the Code. Learned counsel appearing for the petitioners urged that having agreed with that finding the learned Magistrate should not have restrained the petitioners from going upon the land in terms of Sub-section (6) of Section 145. Sub-section (6) of Section 145 provides that if the Magistrate decides that one of the parties was in possession of the subject matter of dispute "he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction". In view of the language of Sub-section (6) of Section 145, perhaps, there would have been some difficulty after having declared the first party-respondent to be in possession on the date of the proceeding, i.e., on 26.8.1970, in refraining from passing an order restraining the petitioners from interfering with the possession of the first party in view of the subsequent event, because Sub-section (6) of Section 145 requires such Magistrate to pass such an order. But, in my view, there was no difficulty in dropping the proceeding so far as those three plots were concerned. Sub-section (5) of Section 145 vests power in the Magistrate to cancel the preliminary order and to stay further proceedings in respect of the lands in dispute on being satisfied that no such dispute as aforesaid exists or has existed. Once if during the pendency of the 145 proceeding these petitioners legally came in possession of the aforesaid three plots through machinery of court under another enactment, then it was only proper for the Magistrate to take note of such event and to respect such delivery of possession. Of course, the matter would have been different if it was a fake claim. In the instant case the learned counsel appearing for the first party-respondent did not challenge that possession was delivered to the uncle of the petitioners and the application filed on behalf of the first party-respondent before the Collector as well as to the appellate authority challenging the order dated 14.11.1975 effecting delivery of possession has been rejected. On many occasions this question has arisen in connection with delivery of possession effected by Civil Court in execution of decree passed in a suit, during the pendency of a Section 145 proceeding and it has been pointed out that in such a situation, once there is a genuine delivery of possession through Court, there is no question of existence of any bonafide dispute so as to vest the Magistrate power to decide the proceeding finally and proper course in such a situation is to drop the proceeding in respect of such land. Reference in this connection may be made to a Bench decision of this Court in the case of (2) Mahendra Bhagat and others V. Bacha Pandey and others (1959 PLR 21) where Mr. Justice Kamla Sahai and Mr. Justice Unwalia (as he then was) considered that question in detail. During the pendency of the proceeding u/s 145 a decree having been passed by the Civil Court was executed and one of the parties was put in possession of a portion of the subject matter in dispute. A prayer was made on his behalf to drop the proceeding in respect of that portion of the land. That having been rejected by the learned Magistrate, this Court while allowing the revision application, observe that after delivery of possession by the Civil Court there was no bona fide claim over such land and the proper proceeding, if necessary to be started, was to initiate a proceeding u/s 107 of the Code for maintaining peace. I am in respectful agreement with the aforesaid view. In my view, if the Magistrate is allowed to pass an order in favour of the person, who has been evicted in due course of law from the land in question, it will lead to an anomalous position, where two final orders passed by two competent Courts are in conflict with each other. This will frustrate the very purpose of initiation of proceedings and passing official orders u/s 145 of the Code, i.e., for maintaining peace. Similar view was expressed in the case of (3) Tekchand Vs. Sabir Husain, , a Full Bench decision of the Hyderabad High Court, and by a learned Judge of the Mysore High Court in the case of (4) Laxmana Subrao Patil and Others Vs. Bhagubai Patil, .

Accordingly, this writ application is allowed in part to the limited extent, i.e., the final order passed by the learned Magistrate in respect of three plots, namely, plot nos. 1360, 1361 and 2223 is quashed and set aside and the proceeding will be deemed to have been dropped in respect of those plots in view of the orders passed by the Collector in the land ceiling cases.

Shivanugrah Narain, J.

I entirely agree. But, since the point is one of first impression, I wish to add a few words about the arguments advanced on behalf of the respondent that where a reference u/s 146 of the Code of Criminal Procedure, 1898, as amended by the 1955 Amending Act, (hereinafter referred to as ''the Code'') has been made and the finding of the civil court u/s 146 has been received, the learned Magistrate has no jurisdiction to drop the proceeding and he must dispose of the proceeding in conformity with the finding of the civil court. In my opinion, this construction of Section 146 of the Code is misconceived. Section 146 provides for reference to the civil court in the circumstances mentioned therein and requires the civil court to decide the question of possession referred to it and transmit its finding together with the record of the proceeding to the Magistrate by whom the reference was made, and then provides that "the magistrate shall, on receipt thereof, proceed to dispose of the proceeding u/s Section 145 in conformity with the decision of the civil court." The contention advanced is that once the finding of the civil court has been received the Magistrate is commanded to "proceed to dispose of the proceeding u/s Section 145 in conformity with the decision of the civil court," and that it is not open to him not to dispose of the proceeding in conformity with the decision of the civil court and to pass a different type of order, namely, dropping the proceeding. The argument, though attractive, is unsound. As pointed out by the Supreme Court in (5) Mathuralal Vs. Bhanwarlal and Another, ; Sections Section 145 and 146 of the Code of Criminal Procedure together constitute a scheme for the resolution of a situation where there is likelihood of breach of the peace because of a dispute concerning any land or water or their boundaries. It is true that these observations were made in respect of Sections 145 and 146 of the Code of Criminal Procedure, 1973, but they are equally apposite to the provisions of Sections 145 and 146 of the Code. We have, therefore, to construe the expression "proceed to dispose of the proceeding u/s 145 in conformity with the decision of the civil court" occurring in Sub-section (IB) of Section 146 of the Code reading the same together with the provisions of Section 145.

u/s 145, the Magistrate passes a preliminary order if he is satisfied that a dispute likely to cause breach of the peace exists concerning any land or water or boundaries thereof and is directed to complete the enquiry and decide as to which of the parties was in actual possession of. But, Sub-section (5) of Section 145 of the old Code provides:

Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final.

Now, as was pointed out by a Bench of the Nagpur High Court consisting of Hidayatullah, J. (as he then was) and R. Kaushalendra, J. in (6). (1950) ILR Nag 787 (Nagpur) , the existence of a dispute likely to cause breach of the peace is a condition precedent to the exercise of jurisdiction by the Magistrate u/s 145; where the condition necessary to found jurisdiction is absent, the Magistrate acts under Sub-section (5) and cancels the preliminary order passed under Sub-section (1).

It, thus, follows where in respect of any piece of land the Magistrate is satisfied that no dispute exists, the Magistrate has the right, and indeed the duty to cancel the preliminary order passed by him u/s 145(1) in respect of the said land. It seems difficult to believe that the Legislature would oblige the Magistrate to pass a final order u/s 145 of the Code determining the dispute as to possession even in cases where it was manifest; and the Magistrate was fully satisfied, that there was no dispute relating to that land much less a dispute likely to cause breach of the peace; the existence of which is a condition precedent to the exercise of his jurisdiction u/s 145. In the absence of words clearly indicating that the Magistrate must dispose of the proceeding and not drop it even when the dispute relating to the land has ceased to exist, such an intention cannot be attributed to the Legislature. Section 145 does not in terms provide that the Magistrate may not exercise the power which undoubtedly vests in him under and perform the duty which undoubtedly is imposed upon him by, Section 145(5) of cancelling the preliminary order and of dropping the proceeding once he has received the finding of the civil court upon a reference made to it u/s 145. The expression "shall proceed to dispose of the proceeding u/s 145 in conformity with the decision of the civil court" can, in my opinion, well be interpreted to mean that the direction to proceed to dispose of the proceeding u/s 145 in conformity with the decision of the civil court applies only where the Magistrate proceeds to dispose of the proceeding and does not compel him to proceed with the proceeding when he would have no jurisdiction to proceed in view of the non-existence of a dispute relating to certain lands which were the subject matter of the proceeding.

The matter may be looked at from another point of view also. As my learned Brother has pointed out, if during the pendency of the proceeding a Court of competent jurisdiction has decided the dispute authoritatively and finally and the decision of the Civil Court upon a reference u/s 146 is contrary to that decision; if the Magistrate were compelled to dispose of the proceeding in conformity with the decision of the Civil Court u/s 146 his decision would be in conflict with the decision of a Court of competent jurisdiction. It must be remembered that the decision as to possession u/s 145 is subject to the decision by a Court of competent jurisdiction and it is well settled that the Magistrate ought to respect the decision of a Civil Court of competent jurisdiction. If the contention of the learned Advocate for the respondent is accepted, the aforesaid anomaly would arise. As the words used in Section 146 are capable of bearing the interpretation that the direction to proceed to dispose of the proceeding in conformity with the decision of the Civil Court applies only when he proceeds to dispose of the proceedings such an interpretation, which results in an anomaly, must be rejected. I, therefore, hold that the provisions of Sub-section (IB) of Section 146 of the old Code do not take away the power of the Magistrate to drop the proceeding, if he is satisfied that no dispute, i.e., no bona fide dispute, relating to that land exists.

As my learned brother has pointed out, after the decision in the preemption proceeding under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, hereinafter called the Ceiling Act, in favour of the petitioners in respect of S.P. nos. 1360, 1361 and 2223 and the delivery of possession in favour of the petitioners of those lands, there can be no bona fide dispute relating to possession of those lands. I may just observe that the learned counsel for the respondents attempted to argue that as the lands had been attached in the proceeding u/s 145, there could be no valid delivery of possession in favour of the petitioners. But that contention is clearly negatived by the bench decision of this Court in (2) Mahendra Bhagat and others V. Bacha Pandey and others (1959 PLR 21), and after his attention was drawn to this decision, Mr. Nagendra Roy, the learned Advocate for the respondent, abandoned that contention. It is well settled that when a dispute relating to a land has been finally decided by a competent Civil Court and delivery of possession in favour of one of the parties to the proceeding u/s 145, Code of Criminal Procedure has been effected, the legal and proper order that the Magistrate should pass is one cancelling the preliminary order u/s 145, Cr.P.C. and dropping the proceeding in respect of the aforesaid land as no bona fide dispute relating to that land exists. See the Bench decision of our Court in (2) Mahendra Bhagat''s case (Supra). See also the decisions of the Hyderabad High Court and the Mysore High Court in the case of (3) Tekchand Vs. Sabir Husain, and in the case of (4) Laxmana Subrao Patil and others V. Smt. Bhagubai W/o Subrao Patil ( 1963-1 Cr.L.J. 697), respectively. It makes no difference in principle whether the dispute is resolved by and delivery of possession effected in pursuance of the decision of a competent Civil Court or by Revenue Court, if the Revenue Court has, as in pre-emption proceedings under the Ceiling Act, jurisdiction to decide the dispute finally. In either case no bona fide dispute relating to the particular land exists after the decision.