Ram Labhaya, J.
1. This reference from the Sessions Judge, U. A. D. arises from a proceeding under Section 145, Cr. P. C.
2. Bhagalu Singh is a Chawkidar of Sardar-mall. On 26-6-1950 he filed a complaint in the court of the A. D. M., Lakhimpur at Dibrugarh, by which he prayed for the initiation of a proceeding against 8 persons described as the second party in the petition under Section 145, Cr. P. C. His case was that the land belonged to Sardarmall, who was the absolute owner by purchase and also was in possession. He held the land and got it cultivated through tenants to whom he gave land for cultivation on annual rent. According to him on 23-6-1950 the second party with many others came, forcibly trespassed on the land & themselves started ploughing it. He protested but finding the attitude of the crowd aggressive, he had to leave.
3. The learned Magistrate directed the proceeding to be drawn up against the 8 persons complained against. Notices were issued to them. Both Parties put in their statements their respective claims to the actual possession of the disputed land. On enquiry the learned Magistrate found that Sardarmall was the owner of the land and was in possession. He accordingly passed orders forbidding the second party from Interference with his possession until he was evicted in due course of law. Two out of the second party assailed the correctness of the order by a revision petition. The learned Sessions Judge has recommended that the proceeding and the order of the learned Additional District Magistrate be quashed on the following grounds: (1) that the learned A. D. M. failed to comply with the mandatory provisions contained in Section 145 (1), (2) that he failed to comply with the provisions contained, in Section 145 (3), and (3) that Sardarmall Agarwalla in whose favour the order has been passed was no party to the proceeding and therefore no order in his favour could have been passed in the proceeding.
4. I have heard the learned Counsel. In my opinion, the order passed by the learned Additional District Magistrate must be quashed on the third ground and in this view of the matter it would not be necessary to deal with questions raised in grounds (1) and (2).
5. The case of the complainant admittedly was that his employer Sardarmall was the owner of the land and was in possession. He was having the land cultivated through tenants to whom he leased the land on annual rent. Even as a witness Bhagalu Chetri adhered to this position. He stated that the disputed land belonged to Sardarmall and his tenants had been occupying the land for the last five years. He never claimed to be in possession. Nor did he allege that there was any dispute relating to land or that there was any danger of the breach of the peace between him and the Opposite Party arising from any such dispute. Some tenants were examined who deposed that they cultivated certain portions of the land of Sardarmall. Sadananda Cohain, another employee of Sardarmall also appeared as a witness. He also deposed that the possession was of Sardarmall and further stated that he had been informed about his dispossession by Bhagalu, Chowkidar. It is thus clear that Bhagalu is a servant of Sardarmall & is employed as a Chowkidar. He is not a tenant and also not in possession.
Sardarmall is not a party to the proceedings He is the other party to the dispute about the land. The question is whether in his absence the court could pass any effective order. In - Behary Lall Trigunait v. Darby 21 Cal 915 (A) an order under Section 145 was passed in favour of a Manager of a coal company, whose statement was that the property belonged to the coal company and that he was its Manager. He did not state that he had any interest except as Manager. Nor did he state that he had any interest or in fact any possession except as representing the company on whose behalf he was managing the mine. It was held that his possession was not of the kind that was contemplated by Section 145 and therefore in the absence of the company, the parties interested were not before the court. On this ground alone the order was quashed.
Under Section 145(1), if the Magistrate concerned is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he has to make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader. The complainant distinctly brought out that Sardarmall was the owner and the person in possession. He was thus the only person interested in the dispute on one side. His servant who was not in possession, and had no such interest in the land or in the dispute. He was the person who should have been required by the court to attend as the person concerned and to put in his statement in regard to his claim to the actual possession of the subject-matter of dispute. This is not a case in which some persons interested in the dispute are before the court. There is only one person who is interested from the side of Sardarmall and that person was not before the Court, even though the court could not have any manner of doubt that he was the person, interested. The case thus is covered by - '21 Cal 915 (A)'.
6. The view expressed above receives support also from - Shankar v. Rex : AIR1950All274 . In this case the police report showed that one Manmohan Das was claiming possession over the plots through one Shankar. No notice was Issued to him. Agarwala J. held that,
In a proceeding under Section 145, it is of great importance that the real disputants are brought before the Court. The Magistrate would be in error in not issuing notice to the Zamindar, who, according to the police report, was claiming possession over the plots in dispute through a person in actual possession. But where a person in actual possession of the disputed plot is impleaded in the proceedings, it cannot be said that the proceedings, are invalid simply because the Zamindar, who may also be interested in the question of possession over the land, has not been impleaded. Where the Zamindar has notice of the proceedings, which notice can be presumed upon the attachment, but for some reason or the other no representation is made on his behalf and as a result he is not impleaded in the case, his interest cannot be affected by the order passed by the Magistrate.
In course of the judgment the learned Judge observed that if Shankar was merely a servant of Manmohan Das and had not claimed possession, he would have quashed the proceedings of the learned Magistrate as was done by that court in - Pearelal v. Emperor AIR 1934 All 853 (C). It is clear from this observation that if a servant not in actual possession of the property is a party, no order in favour of the master who is not before the court can be passed, as the person Interested is not before the court. It is also interesting to notice that even though in this case Shankar claimed actual possession and it was held that proceedings were not invalid by reason of the omission to implead his employer, it was held that the order would not bind him. This is the difficulty that is created when the person really interested in the dispute is not before the Court. He may obtain a favourable order but if the Court comes to a conclusion against him, no binding order can be passed and the breach of the peace thus may not be averted. It is therefore essential that if there is a dispute about land likely to cause a breach of the peace, the two parties to the dispute must be before the Court. The matter cannot be disposed of effectively in the absence of one of the two parties.
7. Mr. Lahiri, the learned Counsel for Bhagalu has tried to support the order on the strength of certain cases which I proceed now to consider in -Krishna Kammini v. Abdul Jubbor 30 Cal 155 (FB) (D), it was held that proceedings under Section 145, Cr. P. C. would not be without jurisdiction because the Magistrate on information before him had made parties only those persons who were actually in the dispute and were likely to cause breach of the peace although it was brought to his notice that another party was interested in the subject-matter of the dispute. The words 'parties concerned in such dispute' were interpreted as referring to all persons claiming to be in possession at the time of the initial order under Clause (1) of Section 145 of the Code. This case is clearly distinguishable as the parties actually concerned in the dispute who were likely to cause a breach of the peace were before the Court. That is not the case here. The only other person to the dispute against the second party was Sardar-mall and he is not before the Court.
In - Dhondhai Singh v. Follet 31 Cal 48 (E), a Pull Bench of the Calcutta High Court enunciated the view that the court acting under Section 145, Or. P. C. had jurisdiction to make an order in favour of a person who claims to be in possession of the disputed land as agent or manager for proprietors when the actual proprietors are not residents within the appellate jurisdiction of the High Court. In this case the learned C. J. distinguished the case reported in - Newaz Ali v. Ham Ballabh 21 Cal 916 N (P). Even if this case is regarded as laying down any rule different from what was laid down in - '21 Cal 916 N. (F)', it does not advance Mr. Lahiri's case, for here there is no agent or Manager claiming actual possession of the property on behalf of an absent master. Bisram v. Kamta Prasad AIR 1945 Oudh 62 (G), is also not of any assistance to us in this case. It merely lays down that the omission to implead persons who are interested in the property in dispute is not a serious matter when they are not concerned in the dispute. That certainly is not the position in the present case.
The only person concerned in the dispute was Sardarmall who was alleged to be in possession. Tenants who have appeared as witnesses have made no grievance of the alleged dispossession. They also have not been made parties to the case. The cases relied on by Mr. Lahiri do not support the contention that on a complaint of a servant who was not in possession of the property and was not concerned in the dispute as a person in actual possession, an order could be passed in favour of the person really concerned in the dispute even though he was not made a party.
8. Mr. Lahiri has also argued that the omission to implead Sardarmall was merely an irregularity and as no prejudice has been caused to the second party, the defect if any in the proceeding is cured. This contention has been raised on the strength of 2 cases the first of which is reported in - Nandan Singh v. Siaram Singh AIR 1926 Pat 67 (H). In this case three brothers were made parties to the proceeding that was drawn up. One of the brothers was a minor. He was not served. The order passed was against the three brothers. It was held on an application by the two brothers who were major, that the proceedings against them were not without jurisdiction, though they may well be bad against the minor as the court had no jurisdiction to pass any order so far as it affected him. This case is obviously distinguishable.
In - 'AIR 1934 All 853 (C)', the only other case relied on by Mr. Lahiri, the parties to the dispute were represented in the proceeding by Agents. The case was allowed to proceed between the agents of the two persons who were parties concerned in the dispute and as a result of the proceeding possession was given to one Badri Jahan Begum who was herself not a party. Niamatullah J. held that the procedure observed, in the case deprived the order under Section 145 of its value. The person interested in the dispute who was not made a party, was not bound by the order and the defect in the proceeding was not cured by Section 537, Cr, P, C. The case is distinguishable on facts. It is also no authority for the proposition that an order can be passed in favour of a person who is not made a party to the proceeding, even though it is alleged that he is actually in possession and is concerned in the dispute. Its implication however is that in a case where no failure of justice takes place and no prejudice is caused, the omission to implead a person may be a curable irregularity.
That may be so. I do not propose to lay down any rule of general application on the point. But as said above I do not consider this 'case as any authority for the proposition that an order under Section 145, Cr. P. C. can be passed in favour of a person who is not a party to the proceeding even though it is alleged that he is actually in possession and is concerned in the dispute. In the absence of such a person the enquiry into the fact of possession cannot be complete. It would be one sided. He would not be bound by any adverse decision. It will have no effect on him. The purpose of the proceeding which is to prevent the breach of peace may not be achieved.
Mr. Lahiri argues that since the order is in favour of the person not a party to the proceeding, no difficulty arises. He is not aggrieved by the order and the other party, the petitioners are not prejudiced. They had the fullest opportunity of presenting their case. This contention might have had some force if the order was final and not at all open to interference in revision. That is not the case and yet the court is powerless as against him. Any order adverse to him would not bind him. It is clear to me that a proceeding under Section 145, Cr. P. C. in which only one party concerned in the dispute is before the court, is not a properly constituted proceeding and no effective order under Section 145 including an order in favour of a person not a party can be passed in such a proceeding. Section 537, Cr. P. C. has no application to a case of this kind where by reason of the fact that one of the two parties is not before the court, the dispute cannot be effectually adjudicated upon. The recommendation made in the reference is accepted and the proceeding and order of the learned Magistrate declaring Sardarmall in possession are quashed.