Ram Labhaya, Ag. C.J.
1. This is a reference from the learned Sessions Judge, U.A.D., under Section 438, Criminal P.C., and arises out of a proceeding under Section 145, Criminal P.C.
2. There was a dispute between the parties to the proceeding about 4 bighas, 4 kathas and 4 lechas of land of Periodic Patta No. 32 of village Chowkan, and 10 bighas, 2 kathas and 7 lechas of land of Periodic Patta No. 96 of Thengalgaon, Mause Khumtai.
3. The case of the first party complainant as disclosed in the complaint, dated 19.7.50, was that the disputed land belonged to one Depu Kachari who sold it to him (Padma Kanta Barua) for Rs. 2500. He further alleged that Ganga Kachari, Depu Kachari, Bethai Kachari and Rameswar Kachari (2nd party) had dispossessed him by ploughing the land forcibly, and on his protest, they threatened to assault him. There was, according to him, danger of a breach of the peace between the parties. This petition was sent to the Officer-in-Charge of Golaghat Police Station for enquiry and report. A report was submitted on 1.8.1950. The conclusion reached in the report was that there was likelihood of a breach of the peace between the parties arising from the dispute about the land in question, and it was proposed that proceedings under Section 145, Criminal P.C. be drawn up against the 2nd party, and that 'the disputed land be attached pending the decision of the case. On 9.8.50, the learned Sub-divisional Magistrate at Golaghat passed the following order on the report:
Read the police report. I am satisfied from the police report that the dispute is likely to cause a breach of the peace. Draw up proceedings under Section 145, Criminal P.C. and call upon both parties to appear in person and put their respective written statements as respects the fact of actual possession. Fix 27.9.50. In the mean time, police to attach the disputed plot of land.
4. In pursuance of the order, dated 9.8.50, the parties were asked by a notice to put in their written statements regarding their respective claims to a plot of land measuring 10 bighas in village Chowkan. It will be observed that the notice was limited to an area of 10 bighas only, the whole of the land was not covered by the notice. Even the description of 10 bighas was not correct, as the area of 10 bighas was in village Thongalgaon, and not in village Chowkan. On 27.9.50, the parties put in their written statements regarding their respective claims with regard to the land in dispute. The parties and then witnesses were examined, and the learned Magistrate found, on a consideration of the evidence adduced by the parties, that one Rangai Kachari was in possession of the land till 1949. He was an adopted son of Depu Kachari the original owner of the land. There was a dispute between Depu Kachari and Rangai Kachari. This dispute was settled and Depu gave 6 bighas of the land to Rangai. Depu Kachari then sold the lands in dispute to the complainant (1st party) and delivered possession to him.
The learned Magistrate also found that the second party (accused) had failed to prove that they had been in possession of the land. He, however, observed further as follows:
The 1st party's possession of the land is also far from satisfactory. But the 1st party has proved that ho got the land by a registered sale-deed from the real owner. The real owner delivered possession of the land by showing the boundaries. So, between the two parties, the 1st party's claim to possession rests on better footing. The 1st party having received delivery of possession from Depu Kachari, must be deemed to have been in possession of the lands when the dispute arose.
Having come to this conclusion, the learned Magistrate declared the 1st party to be entitled to the possession of the lands in dispute until evicted therefrom in due course of law, and forbade all disturbance of such possession until eviction. The land was also released from attachment, by his final order dated 18.12.1950.
5. The learned Sessions Judge, U.A.D., has recommended that the order of the learned. Magistrate be quashed. The first ground on which the recommendation has boon made is that no proper proceeding as contemplated by Sub-section (1) of Section 145, Criminal P.C., was drawn up either by the learned Sub-divisional Magistrate who passed the initial order, or by the inquiring Magistrate to whom the case was transferred for disposal. It has also been Pointe out that the learned Magistrate did not state the grounds of his being satisfied that there was apprehension of a breach of the peace between the parties, nor did he describe the land in dispute in his order.
6. Section 145(1), Criminal P.C., requires that if a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class 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 shall 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, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject-matter of dispute. The order, dated 9.8.50, was a preliminary order, as contemplated by Section 145(1), Criminal P.C., In this order, the learned Magistrate stated that he was satisfied as to the existence of a dispute which was likely to cause a breach of the peace. This order was based on the Police report, which has been referred to expressly. It has been held in Khosh Mahomed v. Nazir Mahomed 33 cal. 352 (F.B.) that a reference in the preliminary order to the Police report which sets out the grounds which justify action under Section 145, Criminal P.C. is sufficient compliance with the provisions contained in Sub-section (1) of Section 145, Criminal P.C.
The learned Sessions Judge has not stated that the report of the A.S.I. does not contain grounds which would justify action. This report describes the lands in dispute and also the nature of the dispute between the parties. It also supports the complainant in his allegation about the likelihood of a breach of the peace as a result of the dispute about the land. The learned Magistrate, no doubt, did not give the description of the lands in his order, but the complaint and the Police report both contain a description of the land. The written statement it in shows that advantage was taken of the wrong description of the land in the notice served on the 2nd party. It was pointed out in para 3 of the written statement that no specific description of the land had been given in the notice, and, therefore, they (2nd party) were not in a position to give the description of the land in their possession. It cannot, however, be argued that, the 2nd party remained unaware of tho contents of the complaint and the police report. (His lordship referred to evidence and continued). It is clear that at the evidence stage the land in dispute was known to the parties and evidence was being led about the two plots, of which possession was claimed by both the parties. The omission to mention the land accurately in the notice, thus, has not caused any prejudice. The 2nd party was aware that the dispute related to the 2 plots described in the Police report, and is the complaint.
7. The second ground on which the recommendation of the learned Judge rests is that a copy of the order has to be served on the person1 or persons as the Magistrate may direct, and at least one copy has to be published by being affixed to some conspicuous place at or near the subject of dispute. But the mere omission to serve or1 publish the order would not affect the jurisdiction of the Magistrate in whose Court the proceeding is pending. It is at the most an irregularity which may be sufficient to invalidate the proceeding only if it is shown that the irregularity has caused prejudice. As held Ratan v. Tika A.I.R. 1939 Lah. 233, - a mere omission or irregularity in the matter of procedure relating to the publication of the order, unaccompanied by any suggestion of any probable failure of justice having been occasioned thereby is not enough to invalidate the proceeding. The Sessions Judge has not suggested that the alleged failure to comply with the provisions of Clause (a) of Section 145, Criminal P.C., has led to any prejudice. The parties wore fully aware about the subject matter of the dispute and led all the evidence they had for showing that they were in possession. In the final order, the learned Magistrate has declared the first party entitled to the possession of the land and has forbidden all disturbance of such possession until eviction of the 1st party therefrom in due course of law. The learned Sessions Judge has observed that in the order passed by the learned Magistrate in compliance with the provisions of Sub-section (6) of Section 145, Criminal P.C., the complainant first party was shown as entitled to the possession of 4 bighas 4 kathas and 4 lechas of land covered by Periodic Patta No. 32 of Chowkangaon, and 10 bighas 2 kathas and 7 lechas of land covered by Periodic Patta No. 90 of Tengalgaon. He points out that this is not in accordance with the description of the land as contained in the police report. But I find that this is exactly how the land is described in the report made by the Police. The entire case for the 2nd party rests on the point that the land in dispute was not fully or accurately described in the notice. But, as held above, we are not satisfied that the irregularity or omission in this respect has caused any prejudice.
8. On the question of possession, the learned Magistrate has found as a fact that the complainant purchased the land and possession was delivered to him at the spot by indication of boundaries. He was also of the opinion that the 2nd party had failed to prove their possession. In these circumstances, if the evidence about actual possession of the first party was not quite satisfactory, the learned Magistrate could take into consideration the evidence, bearing on title when, in his opinion such consideration was necessary in order to decide definitely the question of possession in the case. Where the evidence on the question of actual possession is equally balanced — Magistrate may inquire into the title of the parties to give effect to the presumption that possession follows title, though a case may not be decided on this presumption, where the evidence on both sides is equally incredible.
In this case, the learned Judge has preferred the evidence from the side of the complainant, and has also utilised the presumption arising in his favour from the fact of his title. It cannot, therefore, be said that the learned Magistrate has violated the provisions contained1 in Clause (4) of Section 145, Criminal P.C., which forbids an inquiry into the right of the parties to possess the subject matter of the dispute. The language used by the learned Magistrate in one part of the order is a little unfortunate. He stated: 'So, between the two parties, the 1st party's claim the possession rests on a better footing.' The words used are capable of giving a wrong impression, but we are not satisfied that the learned Magistrate was considering the question of title to possess. He was; examining the claim put forward by the 1st party that ho was in actual possession and should be so treated by reason of the fact that after his purchase from the original owner, he had been placed in possession in the only manner that was possible in the circumstances of the case.
9. We do not think there has been any such, non compliance with the requirements of the law as should under the proceeding void, as, in opposition, no resultant prejudice has been shown. We, therefore, decline to accept the recommendation made in the reference, and allow the order of the learned Magistrate to stand.
10. I agree.