J.N. Datta, J.C.
1. This is a reference made V the learned Sessions Judge under Section 438 of the Criminal P. C,, recommending that the order of the Sub-Divisional Magistrate, Kamalpur, dated 31-8-1956 passed in Misc. Cri. Case No. 3 of 1955, a proceeding under Section 145 of the CrIPC declaring that the opposite party (Bidhubhushan Das and others) who were the applicants (first party) before the S. D. M. were in possession of the land in-dispute and forbidding the present petitioners-(Padmanava Bhattacherjee and others) who were the opposite party (second party) before the S. D. M.f from disturbing their possession, till evicted in due-course of law be set aside.
2. The dispute relates to two adjoining pieces of land, respectively 4 and 5 kanis in area, and situate at Mouza Hererkhola, the first one of which according to the opposite party in this reference; was purchased by Janadasundari, and the second by her brother Bidhubhushan Das (one of the applicants before the S. D. M.) in 1951. and were accordingly in their possession. Janadasundari was-not made a party to the proceeding before the S. D, M., most probably because the allegation was that Bidhubhushan her brother managed her land also on her behalf.
3. The learned Sessions Judge has made this reference, on two grounds, namely (1) that there was no compliance of the provision of Sub-section (3) of Section 145 in as much as, a copy of the preliminary order was not published by being affixed to some conspicuous place at or near the subject of dispute.
In his opinion, the provision being mandatory, the order of the S. D. M., is vitiated and must be set aside, and (2) that the lands in question were not sufficiently identified or demarcated and the boundaries given failed to fix them on the spot, and in the absence of its being definitely known, as to on which land the order will fasten, the order could not be given any effect. He therefore recommends that the order be set aside but does not; say, if the case should or should not be remitted to the Magistrate for a fresh enquiry, on these lines.
4. On the aide of the Petitioners (second party) reliance was placed on Chanan Singh v. Emperor 39 Cri LJ 702 : A.I.R. 1938 Lah 345 (A), in which it was held that failure to draw up a preliminary order and affix a copy of the preliminary order at the spot vitiates all the proceedings and the final order, passed in such a case, can be set aside. Obviously that was a case in which the Magistrate got no jurisdiction as he did not pass a preliminary order under Section 145 (1), and coupled with it, was the irregularity of not affixing a copy of the necessary order on the spot.
I have gone through the judgment of the learned Judge, in that case but am unable to find that he meant to say that the omission to affix a copy of the order on the spot alone would have had the effect of vitiating the final order. In a series of decisions of different High Courts, the point has been well settled that such an omission does not affect jurisdiction unless prejudice is caused and that this provision is only directory and not mandatory.
5. In Wazir Mahton v. Badri Mehton : AIR1950Pat372 , Das J., took the same view. His conclusion was that the failure to serve the order in accordance with Section 145 (3) is a mere irregularity. In Rani Bai v. Jadunandan Ram A.I.R. 1956 Vindh Pra 43 (C), the learned Judge dissenting from the case relied upon on behalf of the petitioners (second party) and relying on the case reported in Abdul Rahman v. Emperor A.I.R. 1927 PC 44 (D), also came to the conclusion that such an omission amounted only to an irregularity which did not cause any prejudice to the applicants (one of the parties in that case).
I am in respectful agreement with those views and am unable to subscribe to the view that a mere omission or irregularity of such a kind, in a matter of procedure, unaccompanied by any acceptable suggestion of probable failure of justice having been occasioned thereby, should be enough to invalidate the proceedings.
6. It is admitted, in this case, that a copy of the order was not placed on the spot and the record of the Magistrate also does not show that it was done. The learned Sessions Judge, however took the view that Janada Sundari should have been made a party to the proceedings, and in this view of the matter the omission to affix a copy of the order at the place caused a serious prejudice, because if the order had been published, she might have entered appearance, before the Magistrate.
I find it difficult to appreciate the force of this reasoning, specially, when her brother was conducting the proceedings as her agent and she was fully aware of the proceedings, and even appeared as a witness in the proceedings. In the arguments before me also, the learned Counsel for the Petitioners failed to show how and what prejudice was caused to any of the parties, by this omission to publish the order.
His only complaint was that publication is intended to give notice to others, who may if they so like come and join in the proceedings. But he did not show, how these parties were prejudiced thereby. Each party in the present case claims to be the owner of the disputed lands and in possession. In these circumstances it is difficult to visualize what other persons would be interested in the dispute and would like to join the proceedings.
In any case, nothing acceptable has been shown, which would justify the conclusion that the parties or any party in this case were or was prejudiced thereby.
7. The lands were described by boundaries and after referring to the sale-deeds and the areas covered by them, the learned Sessions Judge took the view that the boundaries did not sufficiently fix the lands and therefore the final order could not be given any effect. It is true that an order, in the absence of its being known definitely what property it governs, is of no value, but in the present case it is not so.
The then learned S. D. M. had, as far back as 26-12-1952 in this case, issued a commission to the Head Amin to draw a map of the disputed areas and the report and map drawn by the Head Amin were placed on the record. The report shows that the Head Amin did all this in the presence of both parties, and in the map the Head: Amin has clearly shown and demarcated the lands in dispute. The numbers of the plots, also appear on the map. It appears that these facts were not brought to the notice of the Sessions Judge.
8. In any case, the parties were fully aware as to what lands were the subject-matter of the dispute, and the proceedings under Section 145, and did not, it appears, raise any objection before the learned S. D. M. In these circumstances any misdescription of the property cannot be treated as anything, except as a mere irregularity, which does not vitiate the final order (see Khudiram Mandal v. Jitendra Nath : AIR1952Cal713 .)
9. No case has thus been made out in support of this reference and it is dismissed accordingly, with the remarks that the learned S. D. Mr. should have been more careful and seen that proper compliance of Section 145 (3) was done and the property was described in the final order with reference-to the map got prepared through the Head Amin.
It is very necessary that all Magistrates dealing with such cases, exercise the care necessary and required of them, and follow the procedure laid down strictly, so that their orders may not be liable to be questioned later.