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Ram Shanker Tewari and anr. Vs. the State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1970CriLJ770
AppellantRam Shanker Tewari and anr.
RespondentThe State and ors.
Excerpt:
.....or in bad and the magistrate can have no preference. is no bar to the assumption of jurisdiction under section 145. 9. i am, therefore, of the view that a magistrate has jurisdiction to proceed under section 145, code of criminal procedure, in the case of joint land when the same is in actual possession of one of the co-owners provided he is satisfied that a dispute with regard to the said land exists between the joint owner which is likely to lead to a breach of the peace......it is his duty to proceed under section 145, code of criminal procedure, even if it relates to joint land in the actual possession of one of the co-owners, in this view i am supported by observations made in the case of chiranji lal v. mahadeo prasad : air1932all683 . that was also a case relating to joint property. one of the contentions raised in that case was that because the disputed land related to joint property and also joint possession, the case would not come under chapter xii of the code of criminal procedure. in that case, his lordship observed as follows:but the wording of section 145(1) is: 'that a dispute likely to cause a breach of the peace exists concerning any land'. the section does not define the land as being land in the possession of one party or another but.....
Judgment:
ORDER

O.P. Trivedi, J.

1. This application in revision has been filed by Ram Shanker Tewari and Ishwar Saran.

2. A report was submitted to the Sub-Divisional Magistrate, Gonda, by the police to the effect that there was a dispute between the parties with regard to certain land and there was an apprehension of breach of peace on that account between them. On this report being received, the Magistrate passed a preliminary order under Section 145(1), Code of Criminal Procedure, on 25-1-1962 directing at the same time attachment of the disputed property. After an enquiry the same Magistrate finally held that the opposite parties Mohammad Ismail, Maqbool Ahmad and Badrudduja were in possession on the date of the preliminary order and directed release of the property from attachment in their favour. The present applicant No. 1 Ram Shanker Tewari then filed a revision before the Additional Sessions Judge, Gonda. The revision was, however, dismissed and, therefore, he comes to this Court.

3. It was submitted that during pendency of the proceedings under Section 145, Code of Criminal Procedure, Ram Shanker Tewari had filed a suit in the Revenue Court against Opposite Parties 2 to 4 under Section 209 read with Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act with the allegation that he was exclusive bhumidhar of the disputed land and was in exclusive possession over it. The Judicial Officer rejected this contention and held that the parties were co-bhumidhars and that the joint property was in actual possession of Opposite Parties 2 to 4. The suit for ejectment was dismissed and a declaration that the parties were co-bhumidhars was granted. This judgment was upheld by the Board of Revenue on 7-4-1965. It was argued that the Magistrate should not have passed final order releasing the property in favour of Opposite Parties 2 to 4 in view of the said decision of the Revenue Court. Reliance for this submission was placed on the case of Bhinka v. Charan Singh : 1959CriLJ1223 . The argument is without force. What was held by the Supreme Court in that case was that the life of an order passed by the Magistrate tinder Section 145(6), Code of Criminal Procedure, is coterminous with the passing of a decree by a Civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court. In the present case admittedly the Revenue Court had rejected the applicant's prayer for a decree for ejectment against the Opposite Parties and merely passed a declaratory decree and, therefore, the final order of the Magistrate under Section 145(6), Code of Criminal Procedure, does not come to an end by reason of the decree passed by the Revenue Court.

4. The next submission of the learned Counsel for the applicant was that in view of the finding of the Revenue Court that the parties were co-bhumidhars of the disputed property, the Magistrate should not have proceeded under Section 145, Code of Criminal Procedure. Reliance for this proposition was placed on the case of K. Janardhan Reddy v. Sixth City Magistrate, Criminal Court, Hyderabad : AIR1969AP150 . In that case it was observed:

It is settled law that proceedings under Section 145, Cr. P. C. can be started only on the ground that a dispute likely to cause a breach of pease exists concerning land or water, and the Court has to decide the question of actual possession. If a member of the joint family is in possession of a part of the property, can it be said that he is solely in actual possession? Unless there is a partition in the family, any member who is in actual possession of any part of the joint family property, can only be in possession on behalf of other family members. In matters of joint family property, no member of the joint family can claim any part of the joint family property exclusively for himself, because, inherently, every member of the joint family has a right in the property, though some portion may be in possession of one of the members, of the joint family.

With great respect I am unable to agree with the view expressed in this case in so far as it was held that proceedings under Section 145, Code of Criminal Procedure, cannot be started where the property in dispute is a joint property of the contesting parties and whole or part of it is found to be in actual possession of one of the parties. The wordings of Section 145(1),, Code of Criminal Procedure, are:

Whenever 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 of dispute and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims.

The portion underlined (here in ' ') shows that Section 145(1) uses the phrase 'actual possession' and not 'sole or exclusive possession'. Indeed actual possession and sole or exclusive actual possession would appear to be contradiction in terms. The mere fact that a certain person or certain persons are in actual possession implies his or their actual possession to the exclusion of any other. In the case of property over which several persons have a joint right, no doubt actual possession of one of the co-sharers may be deemed in law possession for himself and on behalf of the other co-sharers but in that case the other co-sharers will be deemed to be in constructive possession as distinct from the possession of the co-sharer in whose actual possession the property is at a given time. Therefore, if a member of the joint family is in possession of a part of the property, there is no difficulty in holding that he is solely in actual possession, to borrow the phrase employed in the case of K. Janardhan Reddy. That being so, there appears to be no reason why proceedings under Section 145, Code of Criminal Procedure, cannot be started in respect of joint property when one of the co-sharers is in actual possession and a dispute with regard to possession is likely to cause a breach of the peace between the co-owners. The fact which gives jurisdiction to a Magistrate to start proceedings under Section 145, Code of Criminal Procedure, therefore, is the existence of a dispute with regard to land between two parties likely to cause a breach of the peace. If such a dispute is found by him to exist, then it is his duty to proceed under Section 145, Code of Criminal Procedure, even if it relates to joint land in the actual possession of one of the co-owners, In this view I am supported by observations made in the case of Chiranji Lal v. Mahadeo Prasad : AIR1932All683 . That was also a case relating to joint property. One of the contentions raised in that case was that because the disputed land related to joint property and also joint possession, the case would not come under Chapter XII of the Code of Criminal Procedure. In that case, his Lordship observed as follows:

But the wording of Section 145(1) is: 'that a dispute likely to cause a breach of the peace exists concerning any land'. The section does not define the land as being land in the possession of one party or another but merely that it is land and that there is a dispute and that dispute is likely to cause a breach of the peace. All these elements exist in the present case where there is land and there is a dispute and the dispute is likely to cause a breach of the peace.

In : 1959CriLJ1223 (supra) also their Lordships of the Supreme Court emphasised the fact in paragraph 16 of the report that the foundation of a Magistrate's jurisdiction under Section 145, Code of Criminal Procedure, is apprehension of the breach of the peace and with that object he makes a temporary order irrespective of the rights of the parties which will have to be agitated and disposed of in the manner provided by law. Therefore, in proceedings under Section 145, Code of Criminal Procedure, the core question always is whether a dispute exists between the parties which is likely to lead to breach of the peace. If such a dispute exists with regard to joint land in actual possession of one of the co-owners, then in that case also the Magistrate has no option but to prevent breach of the peace by resorting to the summary provision laid down in Section 145, Code of Criminal Procedure. In the case of Mst. Hosnaki v. State : AIR1956All81 , it was observed:

The object behind the provisions of Section 145 is merely to prevent a breach of the peace by maintaining one party to the dispute in possession and forbidding the other on pain of a penalty, to interfere with it. When there is a dispute concerning land, neither party is prepared to have it decided by a Court of competent jurisdiction and they cannot exercise the right claimed by them without causing a breach of the peace, it becomes necessary for a Magistrate to prevent a breach of the peace by taking some action. A breach of the peace must be prevented and the Legislature has thought that the best way of doing it is by maintaining one party in possession and forcing the other party to go to a Court of competent jurisdiction for a decision of title.

5. In the case of Baijnath Marwarl v. W. S. Street AIR 1917 Cal 404, there was a dispute regarding joint land giving rise to proceedings under Section 145, Code of Criminal Procedure. The Magistrate found that the two contending parties had joint title to the property but it was in actual possession of the first party. An argument was raised that proceedings could not be taken under Section 145, Code of Criminal Procedure, where there may be joint title to the land. Repelling this argument their Lordships observed as follows:

He calls it throughout actual possession; and his judgment can only be read in the sense that he means it was both actual and exclusive of the other side. The mere fact that there may be a joint title to the land would not prevent the application of Section 145, Criminal Procedure Code, as is shown by the case of Basanta Kumari Dasi v. Mohesh Chandra Laha (1913) ILR 40 Cal 982 = (14 Cri LJ 269).

It was held that the mere fact of there being joint title to the land in dispute would not prevent the application of Section 145, Code of Criminal Procedure, where one of the joint owners is in actual and exclusive possession.

Similar view was expressed by the Patna High Court in the case of Nandkeshwar Prasad Sahi v. Sita Saran Sahi ILR 12 Pat 87: AIR 1932 Pat 366. It was observed:

The only condition for a proceeding under Section 145, terminating in a finding under Sub-section (4) and an order under Sub-section (6) or an order under Section 146, is that the Magistrate should be satisfied on information before him 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..... Because one set of persons claim exclusive possession over the major portion of the land while another set of persons claim to be in joint possession along with them of the entire land, the dispute may be difficult to decide, but it is in principle no less a question of disputed actual possession than if each party claimed exclusive possession of the entire area.

It was held that such a case is within the contemplation of Section 145, Code of Criminal Procedure.

6. Next, reliance was placed by the learned Counsel for the applicants on the case of Bipata v. Dwarka 1961 All WR (HC) 658. In that case proceedings under Section 145 were started on a police report as appears to be the case here, and a preliminary order was passed by the Magistrate under Section 145(1), Code of Criminal Procedure, but only a month earlier the Munsif had given a decision regarding possession of that very land holding that Mst. Bipta the first party-plaintiff is the sirdar and in possession of the land. The question arose whether it was proper for a Magistrate to start proceedings under Section 145, Code of Criminal Procedure, about the very same property less than a month after the decision of the Civil Court. The following observations were made by Broome, J. dealing with this argument and it is upon these observations that reliance was placed by the learned Counsel for the applicants before me:

It seems to me that the proper procedure for the Magistrate to adopt in the present case, as soon as the Civil Court's decision was brought to his notice, was to drop the proceedings under Section 145, Cr. P. C. and to take action under Section 109, Cr. P. C. against Dwarka, etc. (the second party), if it was found necessary to prevent them from committing a breach of the peace by acting in defiance of the Civil Court's decision.

For these observations reliance was placed on the case of Mrs. V.E. Argles v. Chhail Behari : AIR1949All286 . In the case of 1961 All WR (HC)658 his Lordship was dealing only with the question of propriety of proceedings under Section 145, Code of Criminal Procedure, under a given set of facts and not with the question of jurisdiction of a Magistrate under Section 145, Code of Criminal Procedure in the case of joint property. For that reason his Lordship did not touch the question about the existence of a dispute with regard to the land and the likelihood of a breach of the peace on that account. The observations made in that case on the question of propriety were not to my mind intended to apply universally to all cases in which a decision on the question of possession had been made recently by the Civil or Revenue Court between the same parties. Even if such a decision on the question of possession had been made recently, a Magistrate must proceed under Section 145, Code of Criminal Procedure, and such an action on his part would be the only course required by law if he is satisfied that in spite of the decision of the Civil or Revenue Court between the parties on the question of possession a fresh dispute had arisen between the parties with regard to the land giving rise to a reasonable apprehension of the breach of the peace. To prevent the breach of the peace the Magistrate will be quite within his powers to proceed under Section 145, Code of Criminal Procedure, Of course, there is also open to him action under Section 107 or Section 109, Code of Criminal Procedure but with profound respect action under Section 107 or Section 109, Code of Criminal Procedure, is only of limited range in effect. A person may be bound down under Section 107 or Section 109, Code of Criminal Procedure and yet he may take to violence and commit breach of the peace if the land in dispute is not placed under attachment under Section 145(1), Code of Criminal Procedure, betimes.

7. In the present case the order of the Magistrate did not in any way upset the finding of the Revenue Court with regard to actual possession. Indeed, the Magistrate had found Opposite Parties 2 to 4 in actual possession taking note of the finding of the Revenue Court in their favour on the question of possession.

8. The observations made by a Division Bench of this Court in the case of : AIR1956All81 (supra) support the view which I take, namely, that the existence of a recent decision of the Civil or Revenue Court on the question of possession in itself cannot be a ground for the Magistrate to refuse to start a proceeding under Section 145, Code of Criminal Procedure. The observations made by their Lordships in that case may be extensively cited with advantage. Observed their Lordships:

For a Magistrate to have jurisdiction to proceed under Section 145 there must exist a dispute likely to cause a breach of the peace, He is only concerned with the existence of a dispute; he is not concerned at all with the questions how it arose, which party is on the aggressive or unreasonable, whether the dispute has been decided remotely or even recently by a Court of competent jurisdiction or whether an alternative remedy is open to the party that seeks his assistance. The law has not made his assumption of jurisdiction dependent on any of these matters. The use of the word 'shall' in Sub-section (1) makes it obligatory upon him to assume jurisdiction on being satisfied that a dispute likely to cause a breach of the peace exists. Neither is any other fact required to exist before he can assume jurisdiction nor is his jurisdiction barred by the existence of any fact. Everyone does not submit himself to decision on title of a competent Court and there arc people who are prepared to take the law in their own hands and disturb the public tranquillity even though their rights have been negatived by a competent Court, Therefore, a dispute like the one mentioned in Sub-section (1), can exist notwithstanding a decision, howsoever recent, of a competent Court; if it docs exist, the Magistrate has no option but to take cognizance of it and proceed under Section 145. In order to attract the application of Section 145, it is not necessary that the dispute should be a bona fide one. It is erroneous to think that when a Magistrate assumes jurisdiction, he does so with the intention of unsettling a settled fact at the instance of the vanquished party, He does not decide the matter contrary to the Civil Court's decision at all. If the Civil Court has decided the question of title only, his decision that the other party has possession cannot possibly be said to be in conflict with the Civil Court's decision. Even if the Civil Court's decision involves a finding on possession in favour of the title-holder, the possession might have been disturbed after the decision and not only would it be open to the Magistrate but also it would be his duty to declare that the other party is in possession. If the Civil Court has delivered possession to a party and the possession has not been disturbed by the other party, there is no reason to think that the Magistrate by assuming jurisdiction would decide the other party to be in possession; if proper evidence is led, he would find the party that succeeded in the Civil Court still in possession and would maintain it, If, however, he has been dispossessed after the delivery of possession by the Civil Court, there is no reason why the Magistrate should ignore that fact and hold the party successful in the Civil Court to be still in possession. If he holds the other party to be in possession, because he is in fact in possession, he is certainly not setting the Civil Court's decision at naught. If the decision is set at naught or if a settled fact is unsettled, it is by the Opposite Party and not by the Magistrate. If proper evidence is led, there is no reason to think that the Magistrate will hold a party to be in possession even though he is not and the law does not require him to give a wrong decision in favour of a party just because he was successful in the Civil Court. It matters little to a broken head whether it be broken in good faith or in bad and the Magistrate can have no preference. When he finds from a police report that he must take action, he can hardly be in a position to enter into such question.....That proceedings can be taken under Section 107, Cr. P. C. or an order can be passed under Section 144, Cr. P. C. is no bar to the assumption of jurisdiction under Section 145.

9. I am, therefore, of the view that a Magistrate has jurisdiction to proceed under Section 145, Code of Criminal Procedure, in the case of joint land when the same is in actual possession of one of the co-owners provided he is satisfied that a dispute with regard to the said land exists between the joint owner which is likely to lead to a breach of the peace. In that view of the matter the Magistrate was right in passing the order under Section 145, Code of Criminal Procedure.

10. I find no force in this revision which is accordingly dismissed and the order of the Magistrate dated 5-6-1967 is upheld.


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