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Mst. Alarakshi Bibi and ors. Vs. Mst. Ujala Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 162 of 1963
Judge
Reported inAIR1966Ori49; 1966CriLJ275
ActsLimitation Act, 1908 - Sections 6 and 8 - Schedule - Article 47; Code of Criminal Procedure (CrPC) , 1898 - Sections 118, 145, 145(1), 145(3), 198, 199 and 345(4)
AppellantMst. Alarakshi Bibi and ors.
RespondentMst. Ujala Bibi and ors.
Appellant AdvocateB. Mohapatra and ;R.K. Mohapatra, Advs.
Respondent AdvocateSk. Rahenoma and ;S.P. Acharya, Advs.
Cases Referred and Raja Gope v. Sukan Singh
Excerpt:
.....statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the plaintiffs are declared to have -/11/4 pies..........the order shall be served in manner provided by this code for the service of a summons upon such person or persons as the magistrate may direct and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute, sections 68 to 70, cr. p. c. prescribe the form of summons, the mode how the summonses are to be served and the nature of the service when the persons summoned cannot be found. mr. mohapatra concedes that he cannot contend on the basis of ext. m that the notice was served in accordance with law or that at least one copy of it was published on the locality.he, however, contends that under section 145 sub-section (4), third proviso, if the magistrate considers the case one of emergency, he may at any time attach the subject of.....
Judgment:

G.K. Misra, J.

1. Plaintiff No. 1 is the mother of defendant No. 7 and plaintiffs Nos. 2 and 3. The suit was in respect of rayati holding No. 6 measuring 19.98 acres of land in village Ischhapali. It is unnecessary to give the details of the respective claim of the parties as the second appeal is confined to the question of limitation. The suit was for declaration of title and recovery of possession. There was a proceeding Under Section 145 Cr. P. C. in respect of the disputed lands. Plaintiffs Nos. 2, 3 and defendant No. 7 constituted the first party. Admittedly plaintiffs Nos. 2 and 3 were minors then. Deceased Gaffur Khan, the husband of defendant No. 1 and father of defendants Nos. 2 and 3, defendants 4 and 5 and deceased Khasaran Bibi were members of the second party. The proceeding was disposed of in favour of the second party on 7-6-52. There was a subsequent proceeding Under Section 145 Cr. P. C. which confirmed the previous order on 12-3-1958. As nothing turns out on the order of the Section 145 proceeding, details of that case need not be given.

Defendants 1 to 6 took the plea that they had title and possession thereof. A further plea was taken that the suit was barred by limitation under Article 47 of the Limitation Act.

2. The trial Court decreed the plaintiffs' suit in the following terms:

'The plaintiffs are declared to have -/11/4 pies interest in the suit properties as well as in the sum of Rs. 680/-, in deposit in the Cr. Misc. Case 89 of 1957. The order in Cr. Misc. Case No. 89 of 1957 is thus fully set aside. The plaintiffs are entitled to joint possession to the above extent.'

The trial court held that the plaintiffs are not bound by 145 proceeding order, but defendant No. 7 was bound. Plaintiffs and defendant No. 7 did not file any appeal against the adverse findings against defendant No. 7. Consequently the trial Court's decree against defendant No. 7 became final and conclusive. Defendants Nos. 1, 4 and 5 filed an appeal before the District Judge, Sambalpur. He allowed the appeal by disallowing the claim of plaintiff No. 2 in respect of the 1/4th share of the disputed land. The second appeal has been filed by the defendants Nos. 1, 4 and 5 against the findings of the District Judge that the suit of the plaintiffs Nos. 1 and 3 was not barred by limitation. A cross-objection was filed by plaintiff No. 2 that the suit was within limitation. Mr. Mohapatra for the appellants does not press the appeal against plaintiff No. 3. So the only question for determination in the second appeal would be whether the suit of plaintiffs Nos. 1 and 2 was barred by limitation.

3. Plaintiff No. 2's case may be first taken up. Admittedly he was a minor when the proceeding Under Section 145, Cr. P. C. was instituted. That proceeding terminated on 7-6-1952. Plaintiff No. 2 attained majority in 1954. The suit was filed on 14-4-1958. Under Article 47 of the Limitation Act the period of limitation is three years from the date of the final order in the case in respect of a suit filed by any person bound by an order respecting the possession of immoveable property made under the Code of Criminal Procedure, 1898. Section 6 of the Limitation Act prescribes that when a person entitled to institute a suit is a minor at the time from which the period of limitation is to be reckoned, he may institute the suit within the same period after the disability has ceased. Section 8, however, lays down the limit that nothing in Section 6 shall be deemed to extend, for more than three years from the cessation of the disability, the period within which any suit must be instituted. Thus reading Sections 6 and 8 and Article 47 of the Limitation Act together, the position emerges that the suit by plaintiff No. 2 is barred by limitation. Mr. Rahenoma does not dispute this position.

It is, however, contended that though plaintiff No. 2 was in fact a party to the proceeding under Section 145, Cr.P.C., he being a minor and not being represented by a guardian, the proceeding was a nullity against him and that he was not bound by this order. This argument requires careful consideration. The learned Advocates for both sides stated that they were unable to find a single decision throwing light on the question as to whether a minor is to be represented by a guardian in a proceeding under Section 145 Cr. P. C. The absence of authorities on the point requires close examination of the relevant sections and the scheme of the Criminal Procedure Code. Sections 118, 198, 199, 345(4) and 514B are the only sections in the Criminal Procedure Code which refer to acts which cannot be performed by a minor or a person below 18 years of age. The relevant portions of these sections may be extracted.

Section 118. Order to give security--If, upon such enquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, with or without sureties the Magistrate shall make an order accordingly:

x x x x x

thirdly, that when the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties.

Section 198. No Court shall take cognizance of an offence falling under Chap. XIX of the Indian Penal Code or under Sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence.

Provided that, where the person, so aggrieved is a woman who, according to the customs and manners of the Country, ought not to be compelled to appear in public or where such person, is under the age of eighteen years .... ..some other person may, with the leave of the Court, make a complaint on his or her behalf.

Section 199. No court shall take cognizance of an offence under Section 497 or Section 498 of the Indian Penal Code, except upon a complaint made by the husband of the woman, or in his absence, made with the leave of the Court by some person who had care of such woman in his behalf at the time when such offence was committed.

Provided, that, where such husband is under the age of eighteen years .. .. .. .. some other person may, with the leave of the Court, make a complaint on his behalf.

Section 345 (4). When the person who would otherwise be competent to compound an offence under this Section is under the age of eighteen years .. .. .. .. any person competent to contract on his behalf may with thepermission of the Court compound such offence.

Section 514B. When the person required by any court or officer to execute a bond is a minor, such Court or officer may accept, in lieu thereof, a bond executed by a surety or sureties only.

In the Civil Procedure Code, Order XXXII makes clear provision for representation of minors. There is no corresponding general provision in the Criminal Procedure Code. It is only in the aforesaid five sections the statute prescribes that a person below eighteen years suffers from disability and cannot perform particular acts. The Code also does not prescribe in any of these sections that a minor would be represented by a guardian. The intention rather is that certain persons is those sections would act on behalf of the minor. In essence, this is some form for representation. The absence of general provisions for representation of minors in the Criminal Procedure Code and the reference to other persons acting for the minors in some sections lead to the irresistible conclusion that the legislature did not intend that the minor should be represented through a guardian in any proceedings other than those referred to in the aforesaid sections. As the law stands, a minor need not be represented by a guardian in a proceeding under Section 145, Cr.P.C.

Section 199, Cr.P.C. was amended by Central Act 18 of 1923 introducing the first proviso. Prior to that the condition 'where such husband is under the age of eighteen years, some other person may with the leave of the Court, make a complaint on his behalf' was not in the statute book. In Walia v. Emperor, AIR 1922 Lah. 168 the wife of a minor boy was eloped. Question arose whether he was competent to make a complaint being under the age of 18 years. A learned single Judge held that representation was not necessary even if the husband was a minor there being no such provision in that section as in Section 345(4). Though this decision is not an authority directly in respect of a proceeding Under Section 145, Cr. P. C., it is in line with the view I have already expressed.

I am clearly of opinion that the proceeding under Section 145, Cr. P. C. against plff. No. 2 was valid.

4. Both the courts have concurrently found that as the plaintiff No. 1 was not a party to the proceeding under Section 145, Cr. P. C. she is not bound by that order and, as such, her suit is not barred by limitation under Article 47 of the Limitation Act. In support of the appeal against plaintiff No. 1, Mr. Mohapatra advanced two contentions-

(i) The writ of attachment in the proceeding Under Section 145, O. P. C. was served on thelocality. Plaintiff No. 1 being interested in thepossession of the disputed land, had notice ofthe proceeding and is bound by the final ordereven though she was not a party.

(ii) Muhammadan heirs are tenants-in-common and plaintiff No. 1 was properly represented in the proceeding under Section 145, Cr. P. C. by her son defendant No. 7.

Both the contentions require careful examination.

5. Though there is some conflict of authority, position of law is somewhat settled that an order under Section 145 Cr. P. C. is binding not only on actual parties to the proceeding but also on all persons interested in the possession of the land in dispute and having notice of the proceedings even though they were not parties (see Dass Mohanto v. Prahlad Mohanto ILR (1959) Cut 1 and Bidyadhar Swain v. Padmanabha Singh Deo, ILR (1959) Cut 74: (AIR 1959 Ori 87) ).

The intention of the Legislature is that the order made by the Magistrate should have reference rather to the subject-matter of dispute than to the persons who were engaged therein. That is why such order is binding upon all persons interested in the possession of the disputed land subject to the rider that they had notice of the same. See Jainath Patni v. Ramlakhan Prasad, AIR 1929 Pat 505. This conclusion has been drawn mainly on the basis of Section 145(3) Cr. P. C. which provides that at least one copy of the order under Sub-section (1) must be affixed to some conspicuous place at or near the subject of dispute. This provision has been construed as indicating the intention of the Legislature that persons not parties to the proceedings would be bound by the order as they would have noticed of such publication on the locality. This principle has also been extended to persons interested in the possession of the disputed land where they collude with persons who are parties to the proceedings Under Section 145 Cr. P. C. (See Satya Charan De v. Emperor, AIR 1930 Cal. 63).

When admittedly plaintiff No. 1 was not a party to the proceedings Under Section 145 Cr. P. C. the onus is on the contesting defendants to plead and prove that either the notice Under Section 145 (i) Cr. P. C. or the writ of attachment was served on the locality and that plaintiff No. 1 had notice of the same. Mr. Mohapatra fairly concedes this proposition. He, however, contends that in fact notice Under Section 145(1) and the writ of attachment were served on the locality. As there was no averment in the written statement and evidence on this question this point was never canvassed before the Courts below and consequently there is no finding. If the contention rested on the admitted facts, it can be permitted to be raised for the first time in Second Appeal and otherwise not. The learned Advocate for both the parties stated that excepting Ext. M there is no other evidence on record to determine the question. It was marked as an exhibit without objection and it may accordingly be taken into consideration. It purports to be a copy of the notice in the proceedings Under Section 145 Cr. P. C. The contents of the notice may be quoted.

'Whereas I am satisfied from the Police report that there is immediate apprehension of breach of peace over the land as detailed by Section 1, of Police Sohella P. S. between Abdul Khan and two others on the one part and Abdul Gafur Khan and three others on the other.

'It is ordered that the said parties are required to attend in person or by pleader on or before 23-3-1951 in this Court and file written statement of their respective claims as respect the fact of actual possession of the subject of dispute.

'Pending further decision the lands in dispute be kept under attachment.'

The details of the land have been mentioned in the notice. The process server Golibadan Padhan has given the peon's report in the following terms.

'Notice was served at Sohella. As Gafur Khan (defendant No. 7) was absent, a copy of the notice was posted on the wall of his house. I served the writ of attachment at Ichhapali by proclamation. Proclamation was also given in village Sohella.'

Whether the peon's report by itself is admissible to prove the factum of attachment need not be examined in this case. Even if the entire report is accepted as representing the true state of affairs, Ext. M does not indicate that a copy of the notice, was published by being affixed to some conspicuous place at or near the subject of dispute. Section 145, Sub-section (3), Cr. P. C. prescribes that a copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute, Sections 68 to 70, Cr. P. C. prescribe the form of summons, the mode how the summonses are to be served and the nature of the service when the persons summoned cannot be found. Mr. Mohapatra concedes that he cannot contend on the basis of Ext. M that the notice was served in accordance with law or that at least one copy of it was published on the locality.

He, however, contends that under Section 145 Sub-section (4), third proviso, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute pending his decision under this section--Ext. M--shows that there was an order of attachment. Peon's report does not show that the writ of attachment was served on the locality. Mr. Mohapatra contends that the Code of Criminal Procedure does not make any provision as to how a writ of attachment is to be served. This contention is not wholly correct. Though there is no specific section in the Code as to how a writ of attachment is to be effected, some guide can be obtained as to the manner of its execution from Section 38 of the Code Sub-section (4) of that section lays down that if the property ordered to be attached is immoveable, the attachment under this section shall, in the case of land paying revenue to the State Govt. be made through the Collector of the district in which the land is situate, and in all other cases by taking possession; or by the appointment of a receiver; or by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to any one on his behalf; or by all or any two of such methods, as the Court thinks fit. Attachment means bringing the property into the custody of the Court. Some ostensible acts oil the part of the peon must be indicated that the attachment was made. Even accepting the peon's report that a proclamation of the factum of attachment was given in village Ichhapali, there is nothing in the report to show that it was effected at the locality.

On the basis of Ext. M it would be hazardous to record a finding of fact for the first time in second appeal that either the preliminary order Under Section 145(1) or the writ of attachment incorporated in the very selfsame notice were served at or near the disputed land. There being lack of proof of this basic fact, plaintiff No. 1 cannot be said to have notice of the proceeding under Section 145 Cr. P. C. even though she was personally interested in the possession of the disputed land. The first contention must accordingly fail.

6. The second contention is that Mahammadan heirs are tenants-in-common and defendant 7 properly represented his mother, plaintiff No. 1. Doubtless the story of the plaintiffs and defendant No. 7 regarding the nature of their title and possession is the same. The possession of one co-sharer is the possession of the others in the eye of law. That by itself is not, however, sufficient to say that one co-sharer represented another in the proceeding Under Section 145 Cr. P. C. The proceeding Under Section 145 was not started on that basts. The concept that all the co-sharers have a similar interest is not identical with the further concept that one represented the other. To establish representation, something more is necessary. There is no finding that defendant-7 represented plaintiff No. 1.

Mr. Mohapatra placed reliance on Lachman Singh v. Diljan Ali, AIR 1918 Pat 504 and Raja Gope v. Sukan Singh, AIR 1939 Pat 353 in support of his contention that if one co-sharer was a party to the proceeding Under Section 145, Cr. P. C. others should be so bound. AIR 1918 Pat 504 is clearly distinguishable. There is a clear statement in that case to the effect:

'Diljan Ali was accepted in the proceedings under Section 145, Cr. P. C. as a sufficient representative of the whole Muhammadan community. The fact that he has not in the present proceedings been accepted as the representative of that community for the purpose of enforcing its right in the Civil Court does not alter the fact that as a community the plaintiffs are bound by the proceedings under Section 145.'

This case, therefore, cannot be cited as an authority for the broad proposition advanced by Mr. Mohapatra. Diljan Ali was a party in the proceedings under Section 145 in a representative character. That was a clear case of representation, AIR 1939 Pat. 353 does not relate to a Civil suit. The point was not taken up in connection with Article 47 of the Limitation Act. In the Criminal Revision itself a point was raised that the proceeding under Section 145 was without jurisdiction as the entire body of co-sharers were not parties. His Lordship observed that in a case of co-sharer landlords, possession of one is the possession of all. The contention of the tenants that the proceedings under Section 145 Cr. P. C. was not maintainable was rejected in the criminal revision itself. That is no authority for overruling an objection to be raised in the Civil suit by the co-sharer-landlords themselves that they were not bound by the final order under Section 145, Cr. P. C. The second contention of Mr. Mohapatra must accordingly fail. The learned District Judge came to the correct conclusion in holding that plaintiff No. 1 was not bound by the final order in the proceeding under Section 145 Cr. P. C.

7. I have already made it clear that the only point urged in the second appeal was under Article 47 of the Limitation Act. On the aforesaid discussion both the appeal and the cross-objections fail. In the circumstances, parties to bear their own costs.


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