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BasiruddIn Sk. and ors. Vs. Rajmamud Sarkar - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantBasiruddIn Sk. and ors.
RespondentRajmamud Sarkar
Prior history
G. Mehrotra, C.J.
1. This petition of revision arises out of a proceeding under Section 145, Criminal Procedure Code. The petitioners before me were arrayed as second par-ties before the Court of the Magistrate and the opposite party before me were arrayed as the first party before that Court. The complaint of the first party was that by various sale deeds he purchased twenty bighas of land in five different plots of various areas from the second party. After taking the sale deeds he came int
Excerpt:
- - on being satisfied that there was a likelihood of the breach of the peace the magistrate issued a preliminary order and called upon the patties to file evidence in support of their possession over the plots. the different plots which were the subject matter of the dispute have been clearly set out in the application. the case clearly lays down that it is open under section 145, criminal......arrayed as the first party before that court. the complaint of the first party was that by various sale deeds he purchased twenty bighas of land in five different plots of various areas from the second party. after taking the sale deeds he came into actual possession and the second party in a body tried to dispossess him of the property and thus there was a likelihood of the breach of the peace. on being satisfied that there was a likelihood of the breach of the peace the magistrate issued a preliminary order and called upon the patties to file evidence in support of their possession over the plots. the case set out by the second party petitioners was that the sale deeds were executed only as some loan was advanced by the first party but possession was never given to the first party and.....
Judgment:

G. Mehrotra, C.J.

1. This petition of revision arises out of a proceeding under Section 145, Criminal Procedure Code. The petitioners before me were arrayed as second par-ties before the Court of the Magistrate and the opposite party before me were arrayed as the first party before that Court. The complaint of the first party was that by various sale deeds he purchased twenty bighas of land in five different plots of various areas from the second party. After taking the sale deeds he came into actual possession and the second party in a body tried to dispossess him of the property and thus there was a likelihood of the breach of the peace. On being satisfied that there was a likelihood of the breach of the peace the Magistrate issued a preliminary order and called upon the patties to file evidence in support of their possession over the plots. The case set out by the second party petitioners was that the sale deeds were executed only as some loan was advanced by the first party but possession was never given to the first party and that the second party continued respectively in possession over their plots. The loans were repaid and thus the first party has no right to remain in possession of the property. The Magistrate after consideration of the documentary evidence and the affidavits filed by the parties came to the conclusion that the first party has proved his possession over the various plots and thus declared that the first party is in possession of the land and directed that the land attached should be released in his favour. In the petition five plots are set out and it is stated that the various plots were sold by different sale deeds by different members of the second patty.

2. Two points have been mainly urged by Mr. Sen for the petitioners. Firstly it is contended that as there are distinct items of property involved, the disputes were separate and the Magistrate could not in one proceeding lump together the disputes relating to various plots. Initially, thus, the Magistrate has no right to hold the inquiry under Section 145, Criminal Procedure Code.

In this connection he has urged that in any case the Magistrate should have given a clear finding in respect of each plot and should have found when and which of the members ot the second party attempted to interfere with the possession of the first party over the different plots. In the absence of any clear finding with regard to each of the plots, the order of the Magistrate cannot be sustained. In that connection my attention has also been drawn to the observation made by the Magistrate with regard to the fourth plot. The Magistrate has observed that with regard to fourth plot there is some discrepancy in the boundaries given in the sale deed and the boundaries given in the application. Section 145, Criminal Procedure Code gives the jurisdiction to the Magistrate to make a summary inquiry with regard to the possession and there is no bar to make an inquiry in respect of various plots, provided that the Magistrate has given to all the disputants to the property in dispute an opportunity to be heard and substantiate their claim. The different plots which were the subject matter of the dispute have been clearly set out in the application. The first party stated as to when the various plots were sold by various persons who have been impleaded as second party to the first party and the Magistrate gave notice to the second party to substantiate their case.

As will appear from the perusal of the order or the Magistrate, the Magistrate has dealt with the history and the circumstances of each case. He has dealt with the sale deeds relating to each of the plot separately, He has further referred to the fact that four affidavits have been filed in support of the possession of the first party over different plots. He has also referred to the evidence and affidavit filed by the other disinterested parties also. It cannot, therefore be said that the Magistrate was not conscious of the fact that the dispute related to different plots. It also cannot be said that no opportunity was given to all the transferors of the various plots referred to in th case. The only dispute raised before the Magistrate was that the first party never obtained possession under the various sale deeds. In fact the sale deeds were never given effect to. It cannot, therefore, be said that the inquiry was made by the Magistrate behind any of the disputants to the plots and they were not given any opportunity to substantiate their case. Thus there is no force in the first contention raised by the petitioner.

3. In this connection reference was made to the cases of Raja of Karvetnagar v. Lodd Govinda Dass Krishna Das, reported in 5 Cri LJ 91 (Mad) and Velu Malavarayan v. Kuppusawmi Pillai reported in 59 Ind Cas 378 : AIR 1920 Mad 233. In the first case the dispute related to various plots and one of the learned judges giving the judgment was of opinion that the Raja had different title to different sets of properties, some he claimed as owner and others as a mortgagee. Unless there was a clear finding as to the nature of possession of the petitioner over these plots, no order could be passed. As I have said, each case will depend upon its own circumstances.

4. Regarding the second case I do not see how that case gives any support to the contention raised by the petitioners. The case clearly lays down that it is open under Section 145, Criminal. P. C. for the Magistrate to decide the dispute relating to various distinct plots provided all the disputants have been given an opportunity to substantiate their case. That case thus does not support the contention of the petitioners.

5. The next point urged was that in the absence of any clear finding as to when the first party was actually dispossessed or an attempt was made to dispossess him, no order could be passed. Reference is made to the second proviso to Clause (4) of Section 145, Criminal P. C. Reliance is placed in support of that contention on the decision of the Court in the case of Ram Narash v. Emperor reported in AIR 1949 All 97. That case only lays down that the proviso will be attracted in cases where one of the parties claim possession on the ground that he has been forcibly dispossessed within two mouths of the order. Even though the petitioner may not be in possession on the date of the order, still if he proves forcible dispossession within two months of the date of the order, in the eye of law by virtue of the proviso to Clause (4) of Section 145 he will be deemed to be in possession on the date of the order. But the cases where the petitioner contends that he has always been in possession, was in actual possession on the date of the order, the second party only attempted to interfere with his possession, a dispute was raised and there was a likelihood of the breach of the peace, the question of the proviso would not arise at all. In the present case the second party's contention was that the first party was never in possession. It was not a case where the first party relied upon the proviso and thus there is no force in the second contention. In the result, therefore, there is no force in this petition and it is rejected.


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