Uittim Singh vs Jodhan Raia and Another

Foster, J.—This was a case u/s 145 of the Code of Criminal Procedure, arising out of a dispute between the first party, Uttim Singh the petitioner and the second party, his brother Jodhan Singh and the sons of his brother Thithar Singh. According to the petitioner''s account, Thithar Singh departed from the Tillage sometime ago and was content to take some lands of the family within the bounds of Nepal as his proper share in the family properties. Subsequently Jodhan, Tifchar Singh''s sons and petitioner lived jointly until the year 1323, and in that year and also in 1327 F they made partitions. The petitioner states that since then he has been in exclusive possession of the lands in dispute, namely 58 specified plots covering an area of 39 bighas 4 kathas. On the other hand the opposite party who were the second party asserted that a part of these plots was held in shares by the second party and a portion was held by the petitioner exclusively. In consequence of this dispute the matter came to the Magistrate''s Court u/s 145 of the Criminal Procedure Code After the parties filed their written statements, it was agreed that the matter should be referred to arbitration. The arbitrators filed their award. The Court accepted the award, but a second reference was made for dealing with more plots, and the arbitrators submitted their final award, which was accepted by the Court on the 26th April 1923 in these terms: "Award received. The plots will remain in Jodhan Singh''s possession which is hereby formally declared. Order personally communicated to Uttim Singh." Prior to that there had been an order on the 15th February 1923: "Award of eight pages received which I have also initialled on each page. The lands will be divided between the parties according to this award which will have the effect of an order u/s 145 Cr. P.C. Each party is hereby restrained from entering upon the land which has been found to be in the possession of the other party."

The main question with which this revision is concerned is whether such a reference to arbitration can be made the basis of an order u/s 145. It appears to me that the scheme of the section is against such a proposition. As the wording of the Section goes, it is for the Court to consider who was in possession at the date of the proceedings or (in some cases) within two months previous to the date of the proceedings. So the scheme of the enquiry is retrospective and not prospective. There might conceivably be certain instances in which the parties have agreed that the Court should refer the matter in dispute to arbitration for the purpose of deciding the question as to who is in actual possession at the time of the proceedings. Apparently such a procedure has not been condemned. In the case of Taramoni Chaudhurani v. Gyanendra Mohan Chaudhuri 7 C.W.N. 461 the question put to the arbitrators was: who was in possession of the land in dispute. As regards the case of Haldhar Singh v. Bulaki Singh [1918] 3 Pat.L.J. 249 which has been quoted by the opposite party, I am unable to find from the report of that case whether the arbitrator''s report was as to actual possession at the moment or as to future possession under their award. In the present case it is obvious that this distinction is important, because in the order of the 15th February 1923, the Sub-divisional Officer states that the lands "be divided amongst the parties." So the order passed by the Subdivisional Officer on the arbitration award was prospective and not retrospective. This appears to be to an impossible foundation for the formal order which, in the Criminal Procedure Code which was in force before the 1st of September 1923, was formulated in Schedule V (XXII). In that formal order the Magistrate certifies that he is satisfied without reference to the merits of the claim of either of the said parties to the legal right of possession that the claim of actual possession by one of the said parties is true.

There are decided cases in which the delegation of the jurisdiction of the Court u/s 145 to arbitrators has been condemned. In the case of Banwari Lal Mukerjee v. Hriday Chakravarti [1905] 32 Cal. 552 this procedure was condemned on the ground that the law does not allow delegation. The utmost that the Code allows in a proceeding u/s 145 is that the Court may direct a local enquiry and bring the enquiry report on the record as evidence. In the case of Hamidul Hague v. Sheikh Atait Hussain [1917] 2 Pat.L.J. 86 the procedure was also condemned on the ground that it was not in accordance with the specific directions given in Section 145. An analogous case to this, bearing out the same principle, is to he found, in Sadhu Biswas v. Mahammad Ali Biswas 15 C.W.N. 568 where a compromise was filed in a proceeding u/s 145. The importance of this last quoted ruling is that it has some bearing on the next matter which I propose to discuss; that if the Magistrate has before him clear and undeniable evidence that there is no more likelihood of a breach of peace and that the parties have come to a settlement of their disputes, it is obvious that the Magistrate must drop the proceedings. In this last case it has been laid down that a compromise can only be taken by the Magistrate as evidence for an order to be passed under Clause 5 of Section 145 and cannot possibly be made the basis of an order passed under Clause 6. That decision appears to me to govern any case in which an arbitration award is before the Court and where that arbitration refers not to existing and past possession but to future possession after division of the property or alteration of the existing conditions.

There is only one point remaining. It is admitted by the opposite party that the proceedings were initiated in respect of 39 bighas and odd and that the final order that purports to have been passed u/s 145 has reference to 82 bighas. It is obvious that the Magistrate had no jurisdiction to pass such order in respect of land which was not referred in the initiatory proceedings.

For these reasons I would set aside the order of the Subdi visional Officer on the ground that it is an order which he had no legal authority to pass.

Adami, J.

I agree.