1. This is a Criminal Reference under Section 438 of the Criminal Procedure Code directed against an order dated 14-7-1973 passed by Shri B. K. Das, Magistrate. 1st Class in a proceeding under Section 145 of the Criminal Procedure Code finally disposing of the case in favour of the First party to the proceeding. The grounds on which the reference has been made by the learned Sessions Judge are all questions of facts and they are as follows: -
1. That there was a misdescription of the land in dispute.
2. That the impugned order of the learned Magistrate directing removal of wooden structures from the land belonging to the Second Party was an order without jurisdiction inasmuch as it was only the Civil Court who had jurisdiction to make such an order.
3. That the learned Magistrate committed error in directing that a passage should be left by the southern boundary of the land for the use of the Second Party.
4. That the learned Magistrate tailed to consider the evidence of the Lot Mandal relating to the passage and also relating to the question that the Second Party paid Touzi Bahira Revenue in respect of the disputed land,
5. That in fact the learned Magistrate determined ownership of the house standing on the disputed land.
6. That in view of the aforesaid mis-appreciation of the evidence there has been a violation of justice in regard to the determination as to the possession of the land in dispute, which dispute was of a civil nature.
2. I have heard the parties at length, Mr. B.K. Deka, the learned Counsel appearing in support of the reference has very fairly submitted that the order of reference is not in proper form as it deals entirely and exclusively with question of facts and the learned Counsel has tried to mould the question of facts into law and has made every endeavour to show and establish that in fact the learned Magistrate did not comply with the provisions contained in Section 145 (4) and (6) of the Criminal Procedure Code, 1808. The learned Counsel has added some more points in support of the reference. The learned Counsel has added that in support of the possession the second parties have filed some documents, namely, (1} some Touzi Bahira Receipts, (2) a certificate issued by the President of the Town Committee Sri Rataneswar Das. who was also a deponent in favour of the Second Parties and (3) some copies of the depositions of the parties containing some admissions in connection with a Criminal Case under Sections 448 and 427 of the Indian Penal Code; but the learned Magistrate did not take into consideration any of the documents and in fact, has overlooked to consider the effect of these documents The learned Counsel has further submitted that the impugned order allowing a passage of 6 feet in favour of the Second Party and the existence of the wooden structure of the Second Party are indicative of the fact that the opposite parties were in possession of the land on the date of the drawal of the proceeding.
3. Shri Bhola Ram Das, the learned Counsel appearing on behalf of the First Party has also argued the case with might and main and has submitted that all the questions referred are questions of facts and when there are definite findings of the Court below the High Court should not interfere with those findings unless they are perverse.
4. I have considered the arguments advanced by the parties and perused the records and I do not feel that I should express any opinion regarding any of the findings of facts inasmuch as I have decided to remand the case to the trial Court for due disposal of this proceedings in accordance with law. It is undoubtedly true that a proceeding of this nature can very aptly be described as a "Police order". The object of such proceedings is to prevent breach of peace. There is not the least doubt about the fact that it is a summary proceeding and by virtue of such an order neither the title nor the right to possession of any land is declared. Such an order ordinarily determines as to which of the parties was, at the date of initiating the proceeding, in possession of the land in question. It may very well be said that it is not final determination of the right of the parties. But in any view of the matter, what is the effect of such an order? When such an order is made against a party, he is deprived of the right to enjoy his property and dispossessed of the same until after his rights are finally determined by a Civil Court of competent jurisdiction. The position, as it stands to day is that when a determination is made under Section 145 against the party, it takes a good number of years for the aggrieved party to get back possession. In some cases the aggrieved party does not get back possession during his lifetime but his heirs and successors who pursue the matter to get back the possession. This being position, as it stands today, the importance of a proceeding under Section 145 and its declaration cannot be undermined bearing it in mind that a proceeding of this nature determines the right in respect of an immovable property a very valuable right. Under these circumstances, before disposing of a proceeding of this nature I feel that it is the duty of the trial Court to make every effort to follow the mandatory provisions laid down under Section 145. In my opinion, the procedures laid down in Section 145 should be very carefully followed and if they are not followed or overlooked it must be held that the actions of the Trial Court are without jurisdiction. The procedures laid down under Section 145 contains not only procedural right but certain substantive rights as well and they have integral connection with the enjoyment of immovable property. In the instant case the parties are fighting out their case over "a very precarious right." The land in dispute is a Khas land. But in spite of the nature of the right, it is a right to property and should not be dealt with lightly by the trial Court.
5. At one stage while hearing the argument made by Mr. B. R. Das, the learned Counsel appearing on behalf of the First Parties, I was almost carried away by the force of his argument to come to the conclusion that the matter need not be interfered with inasmuch as most of the points urged are matters exclusively within the jurisdiction of the trial Court. But on scrutiny of the entire records, I have no hesitation in coming to the conclusion that the matter has not been dealt with as contemplated under Section 145 of the Criminal Procedure Code and the matter must go down on remand to the trial court for disposal of this matter in accordance with the law,
6. The reasons which have impelled and compelled me to remand the case to the trial court are the following:
7. That this is not a case in which the First party claimed that he was in actual physical possession of the disputed land on the date on which the proceeding was drawn up. His case was that he was dispossessed inasmuch as the second party men along with others came and constructed a structure on the disputed land. Under these circumstances the relevant consideration must be as to whether the First Party was "forcibly and wrongfully dispossessed". In fact, there is no finding under Sub-section (4) Second proviso that the second party was, within two months next before the date of the drawal of the proceeding "forcibly and wrongfully" dispossessed by the second party. It is a case covered by the Second Proviso to Section 145(4) and as such there must be some finding of the trial court in regard to that issue, There must be a finding in a case of this nature that the dispossession was both forcible, and wrongful. It is for the trial court to consider as to whether force was applied or not and as to whether the dispossession was wrongful or not. A finding as to wrongful disposession is entirely a question of fact and it must be arrived on due appreciation of the affidavits and documents filed in connection with the case. The first party claims that he was in possession of the Khas land, whereas the Second party's claim is based on the affidavits and documents and they ground their right on the Touzi Bahira Receipts. In the instant case. I find that there is no finding of forcible and wrongful dispossession of the first party within two months. Further the word used in Second Proviso to Sub-section (4) of Section 145 is "may" and not "shall". It is entirely discretionary on the part of the learned Magistrate to declare possession in favour of a dispossessed party and the Court is expected to give reason as to why it has put the party dispossessed into possession. There is no such finding as well.
8. Apart from the above, it is apparently clear that none of the documents filed by the Second parties has been taken into consideration in order to appreciate the position that the entry was not wrongful. Nothing has been stated or discussed by the trial Court in regard to the copies of depositions filed by the Second Party men and their effect in the impugned order. There is no finding as to why the certificate issued by the president of the Town Committee was left out of consideration. Further there is no finding worth the name in regard to the Touzi Bahira Receipts filed by the Second party men. The finding in existence and which has been relied upon by the learned Counsel appearing on behalf of the First Party in this regard runs as follows:
Both the parties have claimed that they are paying Touzi Bahira to Government for their possession, but no such revenue paying receipts have been filed. The second party have filed some receipts but these are found to be in respect of their patta land.
(Emphasis supplied by underlining).
The finding, in my view, is not borne out on records. It is undoubtedly true that there is not Touzi Bahira Receipts filed by the first party. But the Second parties have filed some revenue paying receipts wherein the payment of the Touzi Bahira Revenue is evident. The Receipts are in respect of the Second parties' patta land as well. They are composite receipts and contain some payment towards Touzi Bahira as well. As such, the finding cannot be said to be based a true and correct interpretation of the documents. The learned Magistrate should have considered the receipts and ought to have come to a conclusion as to whether Touzi Bahira payments were in respect of the disputed land or not, but he had not done anything of that nature. It has a great bearing on the finding as to whether the entry as alleged by the first party was wrongful or not. Besides I find a queer finding of the learned Magistrate, which is quoted herein below.
As the Second party has no passage to their patta land, the existing passage by the southern boundary about 6 ft. In width shall be there for the use of the second party.
The concluding portion of the order of the learned Magistrate is somewhat startling. The learned trial Court has not indicated as to whether this passage is within the disputed land or beyond the land nor he has considered the effect of its existence inside the disputed land, provided it was so. If the passage was inside the land in dispute its effect in support of the Second parties' claim that they were at least in actual physical possession of a portion of the disputed land and/or that their entry was not wrongful can't be undermined. It has been argued by the learned Counsel appearing on behalf of the First party that the passage in question was beyond the land in dispute, whereas the learned Counsel for the Second parties has contended that the passage referred to above was within the disputed land and that therefore necessitated an order of this nature to be passed by the Court in the proceeding under Section 145. I do not find anything in the order of the learned Magistrate that it was outside the land in dispute or otherwise.
9. Therefore, it is clear that the learned trial Court has definitely violated the procedure laid down under Section 145(4) and 145(6) of the Criminal Procedure Code. I do not make any observation in regard to the other points urged by the parties inasmuch as they are questions of facts. Any observation that I have made above shall not be binding on the trial Court and it shall come to its own independent conclusion, regarding the points raised.
10. Under these circumstances, in view of the complete disregard of the mandatory provision contained in Section 145 of the Criminal Procedure Code, I feel it to be my duty to remand the case to the trial Court for due consideration of the entire matter in accordance with the law. He should consider all the affidavits and documents and further should consider as to whether it is a case of forcible and wrongful dispossession or not and thereafter to arrive at a reasoned finding after due consideration of the available materials on records. If he finds that it is a case of forcible and wrongful dispossession he should come to the conclusion as to why he has come to the said conclusion and as to whether the Second party is entitled to restoration of possession and if not, why so.
11. In the result the reference is accepted but not on the grounds stated therein, The trial Court is directed to dispose of this matter positively within a month from the date of receipt of the record and if he fails to do the same he must record cogent reasons to that effect. He should dispose of the matter on the materials available on records. Send down the records immediately.