1. This case arises out of a dispute between the petitioners and one Mariya Pillai (counter-petitioner), regarding the possession of certain lands. On 17th January 1914, Mariya Pillai filed a petition asking for an order under Section 144 of the Code of Criminal Procedure directing the petitioners to abstain from interfering with his possession. This petition is said to have boon forwarded for report to the Tiruvalur Sub-Inspector of Police. He submitted a report on 2nd February 1914. Meantime on 24th January 101.4 Mariya Pillai pat in another petition
objecting to the course of the Police inquiry, and asking that harvest of the crops by the present petitioners should be stopped, that the crops already harvested should be taken possession of by the Village Munsif, that the petitioners should be ordered not to interfere with the lands and that an early inquiry should be held.
2. On this, the Magistrate passed the following order on 24th January 1914 : 'issue notice under Section 141 forbidding both sides to harvest until the question of possession has been settled by this Court. The crops already harvested shall be taken into the custody of the Village Munsif. Order both sides to produce witnesses before ma at Negapatam on February 5th.'.
3. The notice actually issued to both sides on the same date does not purport to be issued under any particular section and runs as follows :
The Petitioner and Counter-Petitioners.
Whereas it has been made to appear to me that a dispute likely to cause a breach of the peace exists in respect of possession of the lands noted below (1) Elavangarkudi Vattam. Lands comprised in the patta of Ganapathia Pillai No. 50 and said to have been, comprised in the sale-deed of the 1st counter-petitioner the extent being 10 velis 16 and odd mahs. within the local limits of my jurisdiction, I hereby forbid both the parties to harvest until the dispute is finally decided by this Court or until farther orders, the crops standing on the above lands.
The crops already harvested shall be taken into the custody of the Village Munsif of Elavangarkudi. Both parties are also directed to appear with the evidence before this Court on 5th February 1914 at Negapatam. They should put in a list of witnesses to be examined before 1st February 1914.
(Initialled) P. A.
4. For some reason or other, the hearing of the case was delayed, but from the order now under review it appears that written statements were filed by both parties and arguments heard.
It appears that the present petitioners claimed the lands under a sale-deed from the sons of the admitted original owner, Kolandavelu Pillai. Respondent, Mariya Pillai, claimed as the lessee of Kolandavelu Pillai's widow. A judgment was filed by the petitioners of the District Munsif of Tiruvalur in Original Suit No. 144 of 1911, in which it was decided that the widow had no right to lease the disputed lands. It was argued apparently that this judgment concluded the disputes. The petitioners asked for an order declaring them to be entitled to possession and forbidding disturbance by the other side. Reliance was placed on the case of Doulat Koer v. Rameswari Koeri 26 C. 625 : 3 C.W.N. 461.. On the 5th March 1914 the Magistrate passed the order now sought to be revised. He first explains that he has taken up the case under Section 145 of the Code of Criminal Procedure. He then considers the point above noted and after referring to the Calcutta case says : If I were to make any order allowing the possession of petitioner, the lessee of Chandra-thayammal, I should be cancelling the order of the Civil Court passed so lately as June 1912. Under these circumstances I cannot do otherwise than dismiss the petition.'
5. It may here be remarked that from the heading to the proceedings it must be taken that the petition dismissed is that filed by Mariya Pillai which asked not for proceedings' to be taken under Section 145, but for an order under Section 144 of the Code of Criminal Procedure.
6. The order then proceeds : The paddy on the land has been to a certain amount harvested by the Village Munsif : that officer will be ordered to harvest the remainder and attach all the paddy on the land until an order is obtained from a Civil Court. If such order is not obtained within a month the paddy will be sold in public auction.'
7. It is this concluding portion of the order that the petitioners object to as illegal and ' without jurisdiction.
The question has been greatly complicated by the confusion which has attended the Magistrate's procedure from the start, but after careful consideration it seems to me that the objection must be allowed.
8. The portion of the order in dispute must %9 taken to have been passed under Section 146 of the Code of Criminal Procedure : there is no other provision of law which will cover it. This section is a sort of corollary to Section 145 and the legality of an order under it depends on its having been proceeded by legal proceedings under Section 145 of the Code of Criminal Procedure and on the holding of an enquiry as to the fact of possession ending in the Magistrate's either finding that neither of the , contending parties is in possession or being unable to satisfy himself as to which was in possession : Vide Sheubalah Rai v. Bhagwat Panday 15 Ind. Cas. 486 : 13 Cri.L.J. 430 : 10 C.W.N. 1052 40 C. 105.
9. Now in the present case, apart from the fact that apparently whatever inquiry was held did not end in either of the ways indicated, the only conclusion I can come to is that the proceedings of the Magistrate, in so far as they purport to be under Section 145 of the Code of Criminal Procedure, are void for want of jurisdiction. This, indeed, appears to be the conclusion the Magistrate himself has come to, though for altogether different reasons.
10. It is clear from the whole tenor of his order that he deemed himself precluded by reason of the Civil Court's judgment from inquiring into and determining the question of actual possession under Section 145 of the Code of Criminal Procedure.
11. I am by no means satisfied that the existence of the Tiruvalur District Munsif's judgment in Original Suit No. 144 of 1911 affects the Magistrate's jurisdiction to take proceedings under Section 145 of the Code of Criminal Procedure, which is the argument advanced by the learned Vakil for the petitioners.
12. There is, no doubt, authority of the Calcuttta High Court tending in some measure to support the Magistrate's view though the cases are far from being on all fours with the present one. In the case he relies on, Gulraj Marwari v. Sheik Bhattoo 38 C. 796 : 2 Cri.L.J. 761, it was held that an order under Section 148 following an enquiry as to actual possession under Section 145 was without jurisdiction by reason of the fact that, eight days before the institution of the enquiry, the petitioner had been put in possession of the disputed land in execution of a Civil Court's decree establishing his right to the same. A case of this kind would seem to fall under the first proviso to Section 145, Clause (4), and this may have been in the minds of the learned Judges when they say : 'it was the duty of the Magistrate to have found possession in accordance with the decree of the (Civil Court.' But at the same time with all respect, I fail to understand how the jurisdiction of the Magistrate to take proceedings under Section 145 was affected. Provided the is satisfied that the dispute is likely to cause a breach of the peace and chooses to give himself jurisdiction by recording a formal order under Clause 1 of Section 145, it is difficult to see, locking to the words of that section, that his proceedings are ultra vires.
13. The same point has bean dealt--with in Doulat Koer v. Rameswari Koeri 26 C. 625 : 3 C.W.N. 461. In that case 'possession of some sort' was 'made over to one of the contesting parties by a 'Court Receiver under orders of the District Judge on 29th August 1898, and the Magistrate took proceedings under Section 145 on 1st November 1898, and found, actual possession to be with the Other party. The learned Judges held that where-.the right of one party has been declared within a time not remote from his taking proceedings under Section 145, it is the duty of the Magistrate to maintain the order of the Civil Court and 'to take proceedings which necessarily must have the effect of modifying, or even cancelling, such orders, is to assume a jurisdiction, which the law does not contemplate.' The Magistrate's proceedings under Section 145 were, therefore, declared to be without jurisdiction. Here again, with all respect, 'I find it difficult to follow the reasoning of the learned Judges. The first proviso to Clause (4), already quoted, protects persons who being in possession, whether under a Civil Court's decree or otherwise, are forcibly and wrongfully dispossessed within two months before the proceedings. But, apart from this, the whole scheme of the Chapter contemplates an inquiry solely with reference to the fact of actual possession, irrespective of title.
14. Apart from this, it is by no means clear how far the learned Judges were prepared to (sic). A considerable element of doubt (which is very undesireable where a question of jurisdiction is concerned) is imported by the phrase 'within a time not remote from his taking proceedings under Section 145,' What meaning should be attached to these words? In the present case the interval between the decree of the Civil Court and the institution of these proceedings was more than 18 months, and it may be further noted that the suit was neither for declaration of title nor for possession of the disputed lands, but merely one for damages in which the determination of title was incidentally necessary There is no order of a Civil Court which could be said to be modified or cancelled' (to quote the last mentioned ruling) by a possession order under Section 145. There is merely a finding on an issue in the suit as to the title to the lands. Apart, therefore, from my doubt based on the wording of the section, it is by no means clear that the Calcutta rulings would apply, or were intended to apply to a case like the present.
15. No Killings of this Court have been quoted in support of the petitioners' contention and I am inclined to hold, with all deference, that the judgment of the District Munsif does not affect the jurisdiction of the Magistrate.
16. On the other hand it seems to me that the Magistrate's proceedings are void ab initio by reason of his failure to comply with the requirements of Clause 1 of Section 145 of the Code of Criminal Procedure, This provides that where a Magistrate is satisfied that a dispute exists regarding any land or water or the boundaries thereof within the local limits 6f his jurisdiction, he shall record a formal order in writing setting forth the grounds of his being so satisfied and requiring the disputing parties to attend his Court and 'file written statements. It is only in this way' that 'proceedings under Section 145 can be initiated. The provision of law is imperative and failure to comply with it destroys the Magistrate's jurisdiction [vide Banwari Lal Mukerjee v. Hriday Chakrawarti 32 C. 552 : 1 Cri.L.J. 432 :.2 Cri.L.J. 347.].
17. It has, no doubt, been held in KamaL Kutty v. Udayavarma 'Raja Valia Raja of Chirakal 17 Ind Cas 65 : 86 Ma. 275 : 12 M.L.T. 489 : 23 M.L.J. 499 : 13 Cri.J. 753 : (1912) M.W.N. 11154. by a Bench of this Court, of which I was a member, that where a formal order under Clause (1) had been passed the more comission to set forth in the body of the order the reasons which satisfied the Magistrate is an irregularity which will not affect his jurisdiction. But a formal order there must be.
18. In the present case there is no order (sic) to be passed under Section 145 Clause (1), or which by any stretch of reasoning can be treated as having been passed thereunder. The notice to parties issued on the 21th January 1914 and set forth above certainly is not such an order : and indeed it seems clear that at the time he issued it, the Magistrate did not conceive himself to be acting under Section 145 at all. The Magistrate himself states that he only took up the case under Section 145 on receipt of a report from the Police which did not reach him till 2nd February 1914. No subsequent order is on record, which could possibly be referred to this clause.
19. The whole proceedings under Section 145 of the Code of Criminal Procedure being thus illegal for want of jurisdiction, the order under Section 146 of the Code of Criminal Procedure can stand on no better footing.
20. I, therefore, set it aside as illegal.