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Jaga Kishan and ors. Vs. Benimadhab Supakar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 491 of 1964
Judge
Reported inAIR1966Ori122; 1966CriLJ681
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145
AppellantJaga Kishan and ors.
RespondentBenimadhab Supakar and ors.
Appellant AdvocateC.V. Murty, Adv.
Respondent AdvocateR.C. Misra and ;A.K. Padhi, Advs.
DispositionRevision dismissed
Cases ReferredRaja Gope v. Sukan Singh
Excerpt:
.....he has not considered the separate possession of each particular member of the party or because some members of that party have died during some stage or other of the proceeding. held that one enquiry under section 145 in a case in which the landlord claims a large number of plots to be in his possession while different sets of tenants claim different plots in their respective possession is not illegal or necessarily irregular, and when there is such combination of claims of different sets of raiyats against one landlord in one enquiry the question of prejudice will have to be gone into, and consequently the failure of the magistrate to consider the case of each individual tenant in such a case will not be a ground for interfering with an order under section 145 when no prejudice is..........whom there was an amicable partition in respect of some of the properties in dispute. the second party members represent different branches of the family and are eighty four in number. originally the dispute was with regard to 71.81 acres of land, but later on the enquiring magistrate excluded 38.41 acres from the score of pro-readings. therefore the subject matter of the present proceeding is confined to 33.41 acres of land situate in village madhupur in the district of sambalpur. 2. the preliminary order under section 145 (1) was passed on 22-7-63. it is admitted that the first party is the owner of the disputed land and the second party claimed possession as sikimi tenants in respect of different parcels of land in the disputed properties. there was an amicable partition between the.....
Judgment:
ORDER

R.K. Das, J.

1. This revision application has been filed by the members of the second party against the order dated 31-10-64 passed by the Sub-Divisional Officer Sambalpur, in a , proceeding under Section 145 Cr. P. C. declaring possession of the 1st party to the land in dispute. The 1st party Benimadhab Supakar claims possession of the disputed property on behalf of himself and his 4 sons, between whom there was an amicable partition in respect of some of the properties in dispute. The second party members represent different branches of the family and are eighty four in number. Originally the dispute was with regard to 71.81 acres of land, but later on the enquiring Magistrate excluded 38.41 acres from the score of pro-readings. Therefore the subject matter of the present proceeding is confined to 33.41 acres of land situate in village Madhupur in the district of Sambalpur.

2. The preliminary order under Section 145 (1) was passed on 22-7-63. It is admitted that the first party is the owner of the disputed land and the second party claimed possession as Sikimi tenants in respect of different parcels of land in the disputed properties. There was an amicable partition between the 1st part, Benimadhab and his sons in respect of some of the disputed properties and some properties still remain joint. Though the sons made an application to the Court to be added as parties the Court in view of the joint nature of the claim of possession and that the 1st party is still in charge of the properties, did not think it advisable to add them as parties and the matter rested there. Thus, for all purposes Benimadhab alone was treated as the 1st party. The learned Magistrate after an elaborate discussion of the claims of the parties, declared the 1st party to be in possession of the entire land in dispute, until evicted therefrom in the course of law. It is against this order of the Magistrate the second party has now come with this application.

3. The main contention of Mr. Murty, learned Counsel for the petitioners is that in view of the partition amongst the sons of the 1st party and this being a case of several disputes in respect of different parcels of land as claimed by different members of the second party, a joint enquiry in respect of all such disputes was illegal and on that ground alone, the order of the learned Magistrate was liable to be set aside.

4. There is however no dispute here between Benimadhab and his sons regarding possession of specific parcels of land and in that respect for the purpose of the present proceeding, Benimadhab alone claims possession as the first party in respect of the disputed land. The 2nd party members who claim possession as Sikimi tenants of the 1st party belong to different groups of families. They have filed different written statements such as by members of the second party Nos. 1 to 23, 24-38 39, 42 to 50, 53 to 56, 57 to 60, 68 to 76 and 79 to 81, claiming possession in respect of different parties of the attached land. Though all of them have filed affidavits, they relied upon the affidavits filed by some of the members of the second party. The learned Magistrate after considering the claims of the respective parties came to hold possession in favour of the first party.

5. Coming to the contention of Mr. Murty that the enquiry under Section 145(1) Cr. PC must be done separately and that several disputes should not be clubbed together for the purpose of enquiry, he relied upon a decision of this Court reported in (1955) 21 Cut LT 174 Ratan Majhi v. Budu Rondhari, where it was held that when there is more than one dispute, each one of the dispute should be made the subject-matter of a separate enquiry and the Magistrate has no jurisdiction to consider a number of disputes between several persons as one dispute for the purpose of a proceeding under Section 145. That case, however, is clearly distinguishable. There each party consisted of twenty-three members who claimed separate possession in respect of specific plots and neither party was jointly interested in any specific item of the property in dispute, and it was held that there was no joint dispute as between the members of the 1st party or of the 2nd party and the Magistrate had no jurisdiction to direct joint possession of the disputed land to be delivered to some of the members of the second party.

6. Mr. R. C. Misra, learned counsel for the opposite party, contended that so far as the members of the 1st party are concerned, there is no doubt that there was some allotments of properties by private arrangement and some of the properties are still kept joint, but since none of the sons of the first party came forward to raise a dispute in the proceeding and the claim of specific possession in respect of several parcels of land, the mere allotment by private arrangement among the sons of the 1st party does not in any way affect the members of the 2nd party in a proceeding under Section 145, Cr. P.C. He relied upon a decision reported in AIR 1946 Pat 330 Bindhyachal Prasad v. Madho Singh where the Division Bench of that Court held that where there is a dispute between two parties over some land and the members of one party were in possession under one title and separate possession amongst them was a matter of private arrangement, the order of the Magistrate upholding their possession is not bad merely because he has not considered the separate possession of each particular member of the party or because some members of that party have died during some stage or other of the proceeding. This view was also followed in a decision of the Madras High Court reported in AIR 1949 Mad 226 Munia Sarvai v. Onturiyar,.

7. In other decision of the Patna High Court reported in AIR 1946 Pat 389 Leela Singh v. B.P. Singh, the landlord claimed to be in possession of several plots of land, but several sets of tenants put forward their rival claims and there was only one enquiry in respect of all the disputes. Varma J. held that one enquiry under Section 145 in a case in which the landlord claims a large number of plots to be in his possession while different sets of tenants claim different plots in their respective possession is not illegal or necessarily irregular, and when there is such combination of claims of different sets of raiyats against one landlord in one enquiry the question of prejudice will have to be gone into, and consequently the failure of the Magistrate to consider the case of each individual tenant in such a case will not be a ground for interfering with an order under Section 145 when no prejudice is caused thereby. The same view has also been taken in the decision reported in AIR 1938 Pat 511 Gulab Kuer v. Ganouri Koeri, and AIR 1939 Pat 353, Raja Gope v. Sukan Singh, and in the latter case Agarwalla J. held that it is not necessarily illegal or irregular to combine a large number of plots in a proceeding under Section 145 where the dispute is between the landlord who claims a large number of plots on one side and the different sets of tenants who claim different plots on the other. But in doing so all that the Court has to see whether any prejudice is caused to the parties by amalgamation of a number of plots in one proceeding. In view of this position of law, the contention of Mr. Murty that the proceeding is without jurisdiction cannot be accepted. No question of prejudice arises in this case. The learned Magistrate has separately dealt with the specific case of each group of the members of the second party having separate interest in some parcels of land and no prejudice is shown to have been caused.

8. The finding of the learned Magistrate was not rightly challenged by Mr. Murty and no other contention was raised. In view of this position. I do not find any merit in the revision petition which is accordingly dismissed.


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