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Yumnam Sajou Singh and ors. Vs. Chanambam Thambalangou Singh and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantYumnam Sajou Singh and ors.
RespondentChanambam Thambalangou Singh and anr.
Excerpt:
.....and in order to aid in so obtaining possession and in order to bring pressure on the petitioners they thought of this ruse of taking proceedings under section 145, cri. he has not mentioned the grounds which satisfied him that there was likelihood of breach of the peace as a result of dispute concerning the land. he has failed to see from the police report that until the time when this petition was filed, the petitioners were in peaceful possession of the land. he has failed to see that even on the polite report it was a case of the respondents trying to oust the petitioners from the land. he has further failed to see that the attempt on the part of the respondents by this petition and by their subsequent petition dated 13.3.1961 was only to get the land placed under attachment, when..........from the police report that until the time when this petition was filed, the petitioners were in peaceful possession of the land.he has failed to see that even on the polite report it was a case of the respondents trying to oust the petitioners from the land. he has further failed to see that the attempt on the part of the respondents by this petition and by their subsequent petition dated 13.3.1961 was only to get the land placed under attachment, when they knew that the land was in the possession of the petitioners. if the respondents were themselves in possession of the land, they would not have been so keen on getting the land attached. the attempt was clearly to bring pressure on the petitioners who are cultivators and who have to get their living by cultivating this very land.it.....
Judgment:

T.N.R. Tirumalpad, J.C.

1. This is an application by 34 persons who claim themselves to be in possession of 27 parts of land under patta No. 93/1 situated at Yumnam Huidrora basti as tenants of the Dowager Maharani Dhanamanjuri Devi for the past 40 years on reclamation from khas land, to quash the proceedings under Section 145, Cri.P.C. taken against them by the respondents in the Court of S.D.M., I.W.

2. The facts relating to this case arc briefly as follows:

On 25.1.1961, Chanambam Thambalangou Singh and Thaonaujam Thambou Singh on behalf Of themselves and 20 unnamed persons filed a petition under Section 145, Cri.P.C. against Huidrom Mani Singh, Yumnam Sajou Singh and Yumnam Angahal Singh and 20 unnamed persons of Yumnam Huidrom village in. the Court of the S.D.M., Thoubal stating that the petitioners and others were in possession of the land, about 20 paris in extent under patta No. 93/1 which comprised 27 paris of land and that there was a dispute between the first party and the second party as to the possession, of the said 20 paris and there was apprehension of breach of the peace as the second party used deadly weapons and that it was therefore requested that proceedings under Section 145 Cr.P.C. may be taken and the land may be kept under attachment. The Magistrate sent this petition to the O/C., Mayang-Imphal Policy Station, for report on the same date.

3. The Police submitted a report dated 29.1.1961. It mentioned that it was ascertained in the course of the enquiry that the first party claimed that the land covered by patta No. 93/1 comprising about 20 paris of land were purchased by them from the owner M.K. Binodmi Devi in 1960 under a registered sale deed, that the first party and M.K. Binodini Devi also said that the second party who were the former tenants of the land had already been informed before the last Sri Panchami, that is, 21.1.1961 that the first party purchased the land in dispute and that they would cultivate the same from the coming year and that the second party should not continue to cultivate the same, that the second party on the other hand claim that they have been cultivating the land in dispute since a long time on lease from the owner Maharani Dhanamanjuri and the land was in their possession, and that under the circumstances it appeared there was likelihood of breach of the peace if the land in dispute be not attached under Section 145 Cr.P.C. immediately. It may be mentioned here that M.K. Binodini Devi is the power-of-attorney or the Dowager Maharani. The report was submitted to the S.D.M. on 3.11.1961 and it reached him on 7.2.1961.

4. The order sheet of the S.D.M. shows that on 20.2.1961 he perused the Police Report and considered the circumstances of the case and that he was satisfied that there was likelihood of breach of the peace over the land and so he drew up proceedings under Section 145 and directed the attachment of the land with immediate effect and directed the issue of notice to the parties to put in their written statements and he posted the case to 28.3.1961.

The records sent to this Court do not show when, the attachment was actually effected. But curiously enough, I find in the record a petition filed on 13.3.1961 by the first party stating that the Magistrate had passed a preliminary order, but had not passed an order for attachment of the land in question, that the second party were encroaching upon the land and there was great apprehension of bloodshed on the disputed land and that an order should be passed to attach the land to avoid the bloodshed. I do not find any orders passed by the Magistrate on this petition. This petition would indicate that before 13.3.1961, no order for attachment had been passed or at least that no attachment had been effected till 13.3.1961.

The Magistrate is directed to send to this Court all the records to show when the attachment order was actually issued from his Office and when the attachment was effected. He will also explain why these papers were not sent to this Court on the requisition for records. This is intended to decide what further action should be taken in this matter.

5. Then, both parties appeared before the Magistrate. It is not known who among the unnamed persons in the first party and who among the unnamed persons among the second party appeared before the Magistrate, as the Magistrate has simply mentioned that the first party and the second party appeared. Both parties filed affidavits and written statements. The Magistrate heard arguments and then he passed an order on 1.6.1981 that from the material placed before him it cannot be decided as to which of the parties were in possession. So he referred the matter to the Munsiff at Imphal to decide the fact of possession under Section 146 Cr.P.C. and directed the parties to appear before the Munsiff on 5.6.1961. Both parties appeared before the Munsiff and on 21.6.1961 they stated before the Munsiff that they would not produce further evidence over and above the evidence on record and wanted only to argue the case. The case was argued and the Munsifr posted it for orders to 16.7.1961. This application to quash the proceedings has been filed by 34 persons who belong to the second party in the said proceedings and who are the tenants under Dhanamanjuri.

6. In dealing with the merits of the case, it is necessary for me to refer another proceeding between M.K. Binodini Devi and the very same petitioners in which I passed an order on 7.6.1961 in Criminal Revision No. 4 of 1961. It is not necessary to go into the details, but only to say that as late as 25th December, 1960, Binodini Devi had claimed that the petitioners who are her tenants had given her loushal paddy for the land under patta No. 93/1. This clearly showed that as late as the end of December, 1960, the petitioner were in possession of the land.

Now, it is the case of the respondents that Binodini Devi had sold to them specific portions of the land under patta No. 93/1 under 22 sale deeds in separate lots, Out of the said sale deeds, it is seen that about 12 were executed in September, 1960 and 9 in March, 1960 and one in July, 1960. The sale deeds show that possession of the specific pieces of land within the boundaries stated had been given to the vendees. It is clear that the actual possession of the lands cannot have been given, as the petitioners as tenants were in possession of the land. It is not known, how alter executing the sale deeds, Binodini Devi could claim rent from the tenants, or how she collected rents from the tenants in December, 1960, if the said sale deeds are real sale deeds conveying title and possession to the vendees. The two named respondents and the 20 other unnamed respondents arc said to be the vendees under the sale deeds.

It is also seen that Binodini Devi issued letters separately to the various tenants on 13.1.1961 directing them to quit the land one day before 51.1.1961 and threatened that if they failed to do so, necessary action will be taken against them. 19 such letters written to the tenants are on record. The present petition under Sec, 145. Cri.P.C. was filed by the respondents on 25.1.1961, claiming that they were in possession and that the tenants interfered with their possession.

7. As stated already, all the 22 vendees in the 22 sale deeds did not join in filing the petition. Only 2 of them are mentioned by name and 20 others are unnamed. Their case is that all the 22 persons are in possession. I fail to see how these 22 persons could take out one proceeding under Section 145 claiming their joint possession. They cannot claim to be in joint possession a registered sale deed, that the first party and M. of the 20 paris of land. The land sold under each sale deed is mentioned within specified boundaries. Thus each of the vendees is in possession of separate pieces of land within the 20 paris. It follows therefore that all of them cannot join together and file a single petition under Section 145, Cri.P.C.

Nor will it be possible for the Magistrate to deal with the case on the plea of such joint possession by all the 22 vendees. Thus, if each of the vendees wanted to establish his possession of his separate plot by means of proceedings Under Section 145, separate petitions pointing out the land in their separate possession have to be filed. Again, the tenants are admittedly in possession of separate pieces of land and are not said to be in joint possession. They are lessees of separate plots or land and paying loushal separately. It will not be possible for the Magistrate in a joint petition to decide on the question of separate possession of all the 34 tenants. Thus, the petition itself is misconceived.

8. But it was argued for the respondents that in a petition under Section 145, Cri.P.C., the Magistrate is not concerned at the time of the preliminary order with the question of possession, but only with the question whether breach of the peace was likely and that the Magistrate in this case was satisfied on that point and that therefore no question of quashing the proceedings would arise.

But we have to remember in this case that the petition filed by the respondents was very vague. I have pointed out that admittedly the petitioners were in possession until 21.1.1961 and Binodini Devi's letters directed them to vacate the land only a day before 21.1.1961. In such a case, a party who comes to Court claiming possession has to state when the petitioners vacated and when the respondents got into possession. They have to say whether the petitioners vacated the land in response to the letters written by Binodini Devi and when they took possession from the petitioners. There is no such statement in the petition filed tinder Section 145. Even the Police report received by the Magistrate does not show that the first party had actually obtained possession from the petitioners on Sri Panchami day, that is on 21.1.1961, but only that the respondents had intimated to the petitioners that they would enter into possession on 21.1.1961. This only indicated that it was the respondents who had the idea of taking forcible possession from the petitioners.

9. A Magistrate before he starts proceedings under Section 145 has to state the grounds for his being satisfied that a breach of the peace was likely, This has been pointed out by me on many occasions. It will be seen from the order passed on 20.2.1961 that the Magistrate has not mentioned the grounds for his being so satisfied. If proceedings under Section 145, the Magistrate must first be satisfied that there is a dispute concerning land and secondly that the dispute is likely to cause a breach of the peace. Merely because a petition has been filed under Section 145, Cri.P.C., it does not follow that there is a dispute concerning land. The Magistrate will have to distinguish between a case where one party is clearly in possession of the land and another party who is not in possession of the land attempts to interfere with the possession of the other party and thereby attempts to create breach of the peace and a case where a bona fide dispute regarding land exists, which is likely to create breach of the peace. It is only in the latter case that the Magistrate will start proceedings under Section 145. In the former case, where a party who is the aggressor attempts to interfere with the possession of the opposite party and thereby attempts to create a breach of the peace and files a petition stating that breach at the peace is likely, the proper course for the Magistrate is not to proceed under Section 145, but to take steps against the party attempting to create a breach of the peace under Section 107, Cri.P.C. and bind them to keep the peace. That is exactly what has happened in the present case.

10. Even the Police report which mentions that the breach of the peace was likely did not in any manner show that the respondents had obtained possession of, tile land from the petitioners who were admittedly in possession, in any case, until a few days before the filing of the petition by the respondents under Section 145, Cri.P.C.

The petitioners have been tenants of Maharani Dhanumanjuri Devi for very, many years. If they are to be dispossessed, it can be done only by due process of law and not by merely issuing letters as has been done by Binodini Devi in this case. Merely issuing such letters will not show that the petitioners have surrendered possession. There was no case for the respondents of any surrender of possession by the petitioners. It is clear that the attempt on the part of the respondents was to create breach of the peace by attempting to take forcible possession from the petitioners and to take proceedings under Section 145 in order to get the land attached so that the tenants may be deprived of the possession of the land and thereby to bring pressure on the tenants to hand over the possession to the vendees of the Binodmi.

11. Courts must be very careful to see that such tactics on the part of the respondents arc not allowed to succeed. If the respondents who had no possession of the land were attempting to interfere with the possession of the petitioners thereby creating a breach of the peace, the Magistrate cannot take proceedings under Section 145, Cri.P.C. but must proceed against the respondents under Section 107, Cri.P.C. The Magistrate must apply his mind judicially in such matters. He must be very chary of putting the land under attachment thereby depriving the party really in possession of the fruits of such possession. Attachment must be resorted to only in case of emergency.

In this case, even though the petition was filed on 25.1.1961 and the Police report itself was made on 29.1.1961, it is seen that there was no breach of the peace until 20.2.1961 when the Magistrate ordered the attachment. I have already pointed out that there was no attachment until 13.3.1961. Thus, there was no emergency for the attachment and the Magistrate also has not mentioned any emergency for the attachment in his order dated 20.2.1961. The Magistrate must show in his order that there was such an emergency.

12. There is no doubt in my mind that it was clearly a case where the petitioners were in possession of the land and the respondents were seeking to obtain possession from them, otherwise than by due process of law and in order to aid in so obtaining possession and in order to bring pressure on the petitioners they thought of this ruse of taking proceedings under Section 145, Cri.P.C., the purpose being to put the land under attachment and thereby oust the petitioners who are tenants of the land from possession and prevent their cultivation of the land.

I am sorry to see that the Magistrate and the Police have played into the hands of the respondents in their1 nefarious tactics. There is no doubt in my mind that this petition under Section 145, Cri.P.C. filed by the respondents was a clear abuse of the process of Court. If they wanted to obtain possession from the petitioners, it was their duty to have proceeded in a Civil Court for the purpose and not made use of the Police and the criminal Court to obtain orders favourable to them.

13. It was pointed out for the respondents that the petitioners could have come up to this Court immediately instead of having waited until the, Magistrate referred the matter to the Civil Court to decide the question of possession and until the Munsiff had reserved orders on the question of possession. For the petitioners, it was stated that they expected the Magistrate to make an order favourable to them as their possession was clear beyond doubt and that they had come to this Court when they found the proceedings dragging along and the land continued to be kept under attachment thereby depriving them of their livelihood which was toy cultivating the said land. It was also pointed out that the petitioners are poor tenants and they did not have the funds to fight the respondents who are rich people.

14. There has, of course, been some delay in making this application to this Court to quash the proceedings. But that is not a reason why this Court should not interfere when there is clear abuse of the process of Court. It is clear that the Magistrate never applied his mind to this ease before starting the proceedings. He has not mentioned the grounds which satisfied him that there was likelihood of breach of the peace as a result of dispute concerning the land. He has not mentioned what the emergency was to keep the land tinder attachment. He has failed to see from the police report that until the time when this petition was filed, the petitioners were in peaceful possession of the land.

He has failed to see that even on the Polite report it was a case of the respondents trying to oust the petitioners from the land. He has further failed to see that the attempt on the part of the respondents by this petition and by their subsequent petition dated 13.3.1961 was only to get the land placed under attachment, when they knew that the land was in the possession of the petitioners. If the respondents were themselves in possession of the land, they would not have been so keen on getting the land attached. The attempt was clearly to bring pressure on the petitioners who are cultivators and who have to get their living by cultivating this very land.

It is a pity that the Police and the Magistrate have lent themselves to allowing the respondents to achieve their object. The petition filed by the respondents was a clear abuse of the process of Court and the Magistrate's orders starting proceedings under Section 145 must also be held to be in abuse of the process of Court. The Magistrate and the Police must remember that they have to discharge their duties in accordance with law and justice and that they must not by their conduct show that they have taken sides in such matters.

I have no doubt in this case that the proceedings have to be quashed as it is a clear abuse of the process of Court. The proper course for the Magistrate is to proceed against the respondents under Section 107, Cri.P.C. to see that they keep the peace and that by their attempt to interfere with the possession of the petitioners of this land, they do not disturb public tranquillity or create a breach of the peace.

The proceedings before the Magistrate in Miscellaneous Case No. 2 of 1961 are, therefore, quashed, the preliminary order issued by him under Section 145(1), Cri.P.C. and the reference made by him to the Munsiff under Section 146, Cri.P.C. are set aside and the attachment of the land is raised. The respondents are directed not to interfere with the possession of the petitioners of the said land and to proceed in a Civil Court if they wish to take possession of the land from the petitioners.


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