1. These Rules raise two procedural questions of some practical importance. Both are questions under S l45, Criminal P. C.
2. The disputed property is a small piece of land, about half a cottah. in area, and includes a mud-built house standing thereon. It is really the northern adjunct to the ancestral homestead of one Bepin Behari Mondal and was purchased in the Bengali year 1327 by a deed executed in favour of one of his sons, named Jogesh. Jogesh pre-deceased his father, leaving a widow, named Surabala or Surendrabala. After the death of Bepin, his surviving sons, Jitendra Nath and Harendra Nath, appear to have made some kind of a partition of the homestead, Jitendra taking the northern portion and Harendra the southern. In June 1950, one Kshudiram, who is the Petitioner in these Rules, obtained a transfer of the disputed property from Surabala who obviously dealt , with it on the basis that it was a self-acquired property of her husband. Jitendra and Harendra dispute that claim and their case is that the property was really acquired by the father Bepin, though Harendra is not very definite. After his 'purchase, Kshudiram exercised certain acts of possession with the effect of dispossessing Jitendra, and Harendra who is alleged to have been aiding Kshudiram, himself did certain acts with the same effect. It was out of those doings that the present proceedings arose.
3. On 8th August 1950, Jitendra lodged an information at the Mangalkote Police Station to the effect that his brother Harendra was trying to shut him out from his portion of the homestead by closing down the communicating door between the two portions and that there was an apprehension of a breach of the peace. He did not mention Kshudiram, but the latter appeared during the police enquiry which followed and asserted his claim to the disputed property on the basis of his purchase. The police appear to have thought that the dispute was really one between the two brothers on one side and the stranger-purchaser on the other and they recommended initiation of a proceeding under Section 145, Criminal P. C, on that basis, as also attachment of the disputed property and an order under Section 107, Criminal P. 0., upon the two brothers. On receipt of the police report, the Sub-Divisional Officer of Katwa, Sri A. B. Eudra, drew up a proceeding under Section 145 on 30th August 1950 against Jitendra and Harendra as the First Party and Kshudiram as the Second Party. An application made by Jitendra that Harendra should be transferred to the category of the Second Party was rejected on 1st November 1950.
4. On 7th November 1950, the case was transferred to the file of Sri S. N. Banerjee, but after that officer had only made a formal order, the Sub-Divisional Officer withdrew the case to his own file on 27th November 1950, and transferred it to Sri C. L. Chaudhuri, Magistrate, 1st Class, who then proceeded with it. Harendra did not claim possession of the disputed property and the contest was between Jitendra who examined eight witnesses and Kshudiram who examined five. The learned Magistrate held that Jitendra had been dispossessed on 8th August 1950, which was within two months of the date when the proceeding was drawn up and on 22nd February 1951, he passed the final' order in the following terms:
'I therefore declare that Jitendra Mondal of the 1st Party is entitled to the possession of the proceeding land with the hut thereon, until evicted therefrom in due course of law and I forbid all disturbance of such possession until such eviction.'
5. The learned Magistrate obviously proceeded under the first proviso to Section 145 (4), but he did not make an order for the restoration of possession to Jitendra.
6. On 26th February 1951, Jitendra made an application to the learned Magistrate for restoration of possession and on the same date Kshudiram applied to the Sessions Judge of Burdwan for a reference to this Court against the learned Magistrate's order of 22nd February. On 27th February the learned Magistrate passed orders on Jitendra's application and directed it to be 'filed for the present,' because he thought that in view of the petition of motion filed before the Sessions Judge, it would not be proper for him to make any further order in the matter at that stage. The application for a reference was rejected on 30th April 1951, but by that date Sri C. L. Chaudhuri had already left the station on transfer.
7. On 4th May 1951, something like a duel was fought between the civil and the criminal Courts. On that date, Jitendra made a second application for restoration of possession to the Sub-Divisional Officer himself, but on the previous day Kshudiram had filed a title suit in the Court of the Sadar Munsiff, Katwa, with a prayer for an injunction against Jitendra, restraining him from taking possession of the property. The learned Munsiff, passing orders on 4th May, directed a notice to issue to Jitendra to show cause why he should not be injuneted, but instead of issuing an ad interim injunction, he sent a letter to the Sub-Divisional Officer, requesting him to stay restoration of possession till the application for an injunction was disposed of. That letter reached the Sub-Divisional Officer as he was about to pass orders on Jitendra's application, but he declined to comply with the learned Munsiff's request and made an order, directing the Officer-in-Charge of the Mangalkote Police Station to restore possession of the property to Jitendra. The learned Magistrate thought that it was a mere accident that Sri C.L. Chaudhuri had omitted to make the consequential order for restoration of possession at the time he passed the final order under 8. 145 (6) in favour of Jitendra and that Kshudiram, who had failed to establish his claim in the criminal proceeding, could not be allowed to take advantage of the omission and circumvent the order by resorting to the civil Court which only the omission had enabled him to do before the order was carried out. A copy of the Sub-Divisional Officer's order was, directed to be sent to the learned Munsiff immediately and the latter, on receiving it retaliated by issuing an ad interim injunction against Jitendra at once.
8. The police, on finding themselves between the Munsiff and the Magistrate, appear to have asked for more specific directions and the Sub-Divisional Officer gave such directions by a second order dated 11th May 1951, by which he directed the police to deliver possession of the property to Jitendra, 'by breaking open the locks, if necessary.' It does not appear whether the fact that the learned Munsiff had in the meantime issued an ad interim injunction was brought to the learned Sub-Divisional Officer's notice.
9. The order for delivery of possession was, however, never carried out. The injunction issued by the Munsiff was ultimately dissolved, but on 26-5-1951, Kshudiram applied to the Sessions Judge for a reference against the order for possession and the matter remained pending till the 30th May when the application was rejected. On the 2nd June an application was made to the District Magistrate who stayed the proceedings pending the disposal of the application but that application also was dismissed on the 26th June. On the same day this Court was moved against the orders of the Sub-Divisional Officer, dated 4th and 11-5-1951 and Rule No. 660 obtained, with an ad interim stay of all further proceedings.
10. Subsequently, on 9-7-1951, this Court was moved against the order of Sri C. L. Chaudhuri, dated 22-2-1951 and thereupon E. 711 was issued and again an order for an ad interim stay was made. What proceedings that order was intended to stay or could stay, is not clear.
11. I shall take up R. 711 first. Although that Rule is directed against the order of 22-2-1951, the real attack is against the initial order of 30-8-1950. The point taken was that since in that order the Sub-Divisional Officer had merely stated that he was satisfied as to the likelihood of a breach of the peace but had not stated the grounds of his being so satisfied, the order was bad and the entire proceeding founded on that bad order was invalid. Mr. Dutt, who appeared on behalf of the Petitioner, contended that the question of compliance with the requirements of Section 145 (1) was a question of jurisdiction, because in his view unless the Magistrate took the first step in the only manner authorised by the sub-section his jurisdiction to proceed further did not arise. In support of his contention Mr. Dutt relied on the decisions in Nittyanand Boy v. Paresh Nath, 32 Cal. 771, 9 Cal. W. N. 621 and Khosh Mahomed v. Nazir Mahomed, 33 Cal. 68 : 9 Cal. W. N. 1065 (P. B.).
12. It is true that Section 145 (l) requires the grounds of the Magistrate's satisfaction to be stated in the initiatory order and that in the present case the order merely stated that it appeared to the Sub-Divisional Officer that a dispute likely to cause a breach of the peace existed between the parties. Such an order is undoubtedly a defective order and if challenged in proper time, i. e., about the time when written statements are required to be filed or evidence led, it will be corrected or set aside, as was done in the case of Mohesh Sowar v. Narain Bag, 27 Cal. 981. But I am unable to agree that if an omission to state the grounds occurs, but the proceeding is nevertheless allowed to go on without challenge, it must still be held to be invalid even after its conclusion and the final order must be set aside - on account of such omission alone, whether or not any prejudice has been caused. In my opinion, such omission is only an irregularity in the proceedings and does not affect the Magistrate's jurisdiction and, therefore, when it is complained of at the end of the proceeding, the validity of the final order must be judged by the test of prejudice.
13. Of the two cases relied on by Mr. Dutt, the one that supports his contention to a certain extent is the case of Nittyanand Roy v. Paresh Nath, 32 Cal. 771. There, the initiatory order did not state the grounds and the learned Judges, after referring to the provisions of Section 145 (i), said that they thought the final order made by the Magistrate must be set aside,
'for it does not appear that the case is one within the section and accordingly he had no jurisdiction to make it.'
It appears, however, that in that case the proceeding was initiated on the results of a local enquiry held by the Magistrate of which no record had been made and it was not possible to ascertain what information he had received in the course of the enquiry. The learned Judges say that when a proceeding is started on a police report or other information reduced to writing, it is possible to refer to the materials on which the Magistrate acted in order to ascertain whether there was good grounds for his action, but
'in the present case, there being no record of the result of the local investigation made by the Magistrate himself, there is nothing to which reference can be made.'
When, therefore, the learned Judges say that the case is not 'one which comes within the section,' they appear to me to be thinking of the absence of materials to show that grounds for an apprehension of a breach of the peace, which only could give the Magistrate jurisdiction to act, in fact existed and not merely of the absence of a statement of the grounds in the order. They no doubt say that even when a Magistrate starts a proceeding on a police report or other information in writing, it is his duty to state the grounds in the order, but it does not appear to me that they treat this duty as a matter of jurisdiction, upon the due performance of which the Magistrate's authority to act depends or that even if there had been a record of the local enquiry from which good grounds for the action taken appeared, they would still have set aside the final order. I do not, therefore, read the case as supporting the absolute proposition of Mr. Dutt.
14. The other case cited by Mr. Dutt, the Full Bench decision in Khosh Mahomad v. Nazir Mahomad, 33 Cal. 68, does not bear on the present question except as an explanation of what stating the grounds means. It wa5 held in that case that although the initial order tinder Section 145 (1) might not state the grounds in express terms, still, if the grounds appeared in the police report on which the order was founded and to which it made reference, there would be substantial compliance with the provisions of the section. In a sense, the decision is against Mr. Dutt, for it declares the validity of an order, the grounds for which are not to be found in the order itself, but are to be found outside it. It must be recognised, however, that the present question, though referred to the Full Bench, was not decided by it. The Order of Reference comprised three questions, (i) whether an initial order under Section 145 (l), not stating the grounds expressly but referring to the police report on which it was founded, was defective; (ii), if defective, whether the defect affected the Magistrate's jurisdiction and invalidated the final order; and (iii) even if it did so, whether the High Court was bound to interfere in revision under Clause 15 of the Charter. The Full Bench answered the first question in the negative and therefore found it unnecessary to deal with the two remaining questions.
15. In addition to citing the two eases with which I have already dealt, Mr. Dutt submitted in a general way that there were other cases of this Court which supported his contention. I have been unable to trace any such case, I have already referred to the case of Mohesh Sowar v. Narain Bag, 27 Cal. 981, where the order was challenged as soon as it was made and was set aside. In the case of Jago Mohan v. Bam Kumar, 28 Cal. 416, the High Court declined to entertain a reference made by a Sessions Judge, on the ground that under the Code, as it then stood, a Sessions Judge had no jurisdiction to make a reference against an order made under Section 145, and while rejecting: the reference, the learned Judges merely observed, that the Magistrate 'should' state the grounds for his action in the initiatory order. In Queen Empress v. Gobinda Chandra, 20 Cal. 520 the High Court quashed the final order on thro ground that the-proceeding was started under directions given by a Sessions Judge in the course of a murder trial which he had no jurisdiction to give and that the-report of the police enquiry which followed and to-which the initiatory order made reference, did not contain a word as to the likelihood of any breach of the peace. In Dhanput Singh v. Chatterput Singh, 20 Cal. 513, the initiatory order, containing only a reference to the police report, was challenged as soon as it was served, but the High Court upheld the order as there were abundant materials in the police report to justify the action taken. The question raised in the present case is thus not covered by any decision of this Court, except that in Nittyanund v. Jogesh Chandra, 32 Cal. 771, but the authority of even that decision is not, as I have shown, decisive.
16. On the other hand, there is an instructive discussion of the question in the Order of Reference in the Pull Bench case of khosh Mahomad v. Nazir Mahomad, 33 Gal. 68, and the view expressed by Rampini and Mookerjee JJ., is clearly and definitely against the contention of Mr. Dutt. In my opinion, the view taken by the learned Judges is clearly the right view. Referring to the contention of the Petitioner in that case that the omission to state the grounds in the initiatory order affected the jurisdiction of the Magistrate and rendered the whole of the subsequent proceedings null and void, the learned Judges observed as follows:
'It appears to us that the view advanced on behalf of the Petitioner does not sufficiently recognise the distinction between the elements which are essential for the foundation of jurisdiction and the mode in which such jurisdiction may be exercised. ... It is clear that in order to give jurisdiction to a Magistrate to take proceedings under Section 145, it is esaential that he should be satisfied that a dispute likely to cause a breach of the peace exists and such dispute must refer to land or water or the boundaries thereof lying within his local jurisdiction. If these elements exist, the Magistrate is entitled to exercise his jurisdiction and the first step is the recording of the initial order, the contents of which are specified in the first clause of Section 145. If the order does not contain a statement of the grounds upon which the Magistrate is satisfied, it is undoubtedly defective, but we are unable to appreciate the grounds upon which it is contended that such defective order is made without jurisdiction. This argument appears to us to be based upon the fallacy that a Court has jurisdiction only to make a correct order and when it happens to make an order which is incorrect or defective, it acts without jurisdiction.'
17. The learned Judge proceeded to point out that non-compliance with every rule of procedure did not amount to an illegality, sufficient to invalidate the proceedings and that when a Court exercised its jurisdiction not strictly in accordance with the mode prescribed by the statute, the question whether the defect amounted to an illegality or irregularity, depended on the object and character of the rule which had been contravened. They concluded by saying that the object of requiring the grounds to be stated in the initial order was to enable the parties to make their defence properly and if the parties found any difficulty in preparing their defence by reason of deficiencies in the order, they might challenge the order at tiat stage or ask for a fuller order. But whore no difficulty had been experienced and the parties had led evidence in support of their respective cases, it was impossible to hold that, even in such a case, the defect in the order was an illegality which vitiated the whole proceedings. Precisely the same view was taken by a Full Bench of Allahabad High Court in the case of Kapoor Chand v. Suraj Prasad, 55 ALL. 301, where the initial order did not even state in terms that the Magistrate was satisfied as to the likelihood of a breach of the peace.
18. Indeed, if one examines a little closely the object and structure of Section 145, it must appear at once that the form in which the initial order is drawn up cannot be the basis of the Magistrate's jurisdiction to act under the section. Magistrates are responsible for the maintenance of peace and order in their respective jurisdictions and as threats to peace and order may at times arise suddenly, the Legislature had vested them with certain emergency powers to take preventive action. It is of the very essence of such powers that jurisdiction to take action under them must arise as soon as the Magistrate is satisfied that a likelihood of a breach of peace exists, or the section would defeat itself; and it must necessarily be such satisfaction alone which causes the jurisdiction to accrue. As soon as, in the opinion of the Magistrate, a threat . to peace has arisen, jurisdiction to take action against it also arises. It is true that having laid down the basis of jurisdiction, the Legislature also prescribes the mode in which it is to be exercised and in the case of disputes over land or water, it prescribes in Section 145 (l) the manner in which the first step is to be taken. But taking a step, even the first step, in exercise of a certain jurisdiction must necessarily be subsequent to the accrual of the jurisdiction and, obviously, the very jurisdiction to take action cannot arise out of or depend upon the manner in which the first step is taken. If the first step is not taken in conformity with the prescribed methods it may be challenged in proper time and got rid of or corrected on the ground of its being an irregular step. But as the irregularity does not affect the accrual of jurisdiction but only the mode of its exercise, it can be relied on at the end of the proceeding as having vitiated the final order only if it has caused prejudice.
19. In the present case, there can be no question of any prejudice having been caused and, indeed, none was sought to be made out. Although the initial order did not state the grounds, nor refer to the police report, the latter was mentioned in the order recorded in the order-sheet and was dealt with by all the parties in their written statements. Both the parties, again led evidence on all questions relevant to Section 145. The point about the absence of a statement of the grounds in the initiatory order was not taken before the Magistrate at any stage, nor in the application for a reference where the order was attacked on a multitude of grounds. It was only when making his application to this Court, after having been before the Magistrate, the District Magistrate and the Sessions Judge without ever thinking of this point, that the Petitioner at last remembered that the initiatory order did not mention the grounds of the Magistrate's satisfaction and that that omission might be utilised for attacking the final order. In my opinion, the Petitioner was not prejudiced in the slightest decree by the omission of the Magistrate to state the grounds in the initial order, as he was clearly aware of all of them and put up a defence against them on an elaborate scale. Rule 711 must accordingly fail.
20. Rule 660 is directed against the orders of 4th and 11-5-1951, directing delivery of possession to Jitendra. The point taken is that Section 145 (6), Cr. P. C. contemplates only one order. If, in a ease where the Magistrate proceeds under the first proviso to Section 145 (4), he is minded not only to declare a person, dispossessed within two months, to be entitled to possession but also to restore possession to him, he must do so by one and the same order and cannot make a second order for restoration of possession on a subsequent date. In any event, a Magistrate other than the Magistrate who declared the right to possession cannot do so. In the present case, the order declaring Jitendra to be entitled to possession having been made by Sri C. L. Chaudhuri who did not make an order for restoring him to possession, such an order could not legally be made on a subsequent date, or, at any rate, could not be made by the Sub-Divisional Officer, Sri A. B. Eudra, as was done.
21. In my opinion, there are several reasons why this contention cannot be accepted as correct. To take first the language of the section, what it says is that the Magistrate
'shall issue an order declaring such party to be entitled to possession...............and may restore to possession the party forcibly and wrongfully dispossessed.'
It does not say
'Shall issue an order declaring such party to be entitled to possession and restoring to possession the party etc., if he deems fit to do so.'
The first part of the section refers to the contents of the order, while the second part is not a description of the order at all, but refers to some further action. The language is 'may restore'. To take a rough analogy from civil law, the first part comtemplates a decree, while the second part contemplates execution. There is certainly nothing in the section to prevent the Magistrate from declaring a certain party to be entitled to possession and, if he was dispossessed within two months, from directing restoration of possession to him by the same order, but the section does not make it obligatory on him to do so.
22. There are further indications in the section that it does not intend that in the case of a party declared to be entitled to possession but not in possession at the time, an order for restoration for possession if it is to be made at all, must be made at the same time and by the same order. The first part of the section lays down that the order must be:
'declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction.'
Such must be the form of the order in all cases, including the case of a party who is deemed to be in possession under the first proviso to sub-s. (4). But such a party is one who was dispossessed within two months next before the date of the initiatory order and even on the date of the final order he will not be in possession. To direct even in his case that his possession must not be disturbed, is obviously5 meaningless, unless he is restored to possession. The second part of Section 145 (6) deals with the case of a person who is deemed to be in possession under the first proviso to Section 145 (4) and one would expect that, there, the section would contain a mandatory direction that he shall be restored to possession. The fact that the section only provides that the Magistrate 'may' restore him to possession, clearly suggests that the Legislature considered that the need for making an order for restoration of possession would depend upon the exigencies of each particular case and that it might not always be necessary, after a a declaratory order had been made in favour of a dispossessed person, to restore him actually to possession. The dispossessor might voluntarily quit the land, as defendants in suits for possession sometimes do after the decree. If he did not, an order for restoration of possession might then be made. It may be recalled here that although the first proviso to Section 145 (4) has always been a part of the section since 1898 the second part of Section 145 (6) was not added till the amendment of 1923. Even before 1923, final orders in only a declaratory form were made in favour of dispossessed persons and it cannot be said that they were always ineffective. Difficulties must have been experienced which occasioned the amendment, but when the Legislature intervened, it enacted a provision not in an absolute but in an optional form and thus, to my mind, gave sufficient indication that an order for possession might be made, if and when required, and not necessarily by the same order whereby the right to possession is declared.
23. In the next place it appears to me that the intention of the Legislature is clearly reflected in the form given in the Code for an order under Section 145 (6). That form, which is Form No. 22 of Sch. V, stops at the declaration of the right to possession and the injunction forbidding disturbance and does not incorporate any order for restoration of possession. It is true that such an order is only optional, but if the Petitioner's contention that such an order, if made at all, must be made as a part of the same order, were correct, one would expect the form to contain a provision for an order for possession, with the direction that it was to be struck out, when not required. I am not overlooking the provisions of Section 555 of the Code which says that the forms set forth in the Sch. 5 may be used with such variation as the circumstances of each case require, but the question in the present case is not one of adapting or adjusting the form to the special circumstances of a particular case, but one of ascertaining what the essential components of an order under Section 145 (6), which has been worked out in Form No. 22, are.
24. In my opinion, both on a true construction of Section 145 (6) and on grounds of principle and reason, the contention of the Petitioner must be rejected.
25. The next contention was that, in any event, whatever Sri C. L. Chaudhuri might have done, the Sub-Divisional Officer had no jurisdiction to pass the orders for possession. It was argued that the power under the second part of Section 145 (6) was optional and since Sri G. L. Chaudhuri did not exercise the power, he must be deemed to have declined to do so. The proceeding therefore came to an end with the order 22-2-1951 and the Sub-Divisional officer could not, in May assume seisin of a case in respect of which the Magistrate, who had dealt with it, had become functus officio with the order of 22nd February and then pass orders in it.
26. In my opinion, this contention is fallacious. If, as I have shown, the section does not require an order for possession to be made at the same time as the declaratory order and if such an order can be made subsequently, the proceeding did not come to an end with the order of the 22nd February. It remained still pending for the purposes of an order for possession, if one was required, and if Sri C. L. Chaudhuri had remained at the station, he could have made such an order, unless the case had in the meantime be withdrawn from his file. It was a mere accident that Sri C. L. Chaudhuri was transferred, but his transfer did not extinguish the case. If the case was alive and still pending, an order for possession could still be passed in it by a Magistrate competent to deal with the ease. In the circumstances of the present case, an order for possession was a necessary adjunct of the declaratory order and it was an inadvertent omission on the part of Sri C. L. Chaudhuri that he failed to make such an order, as he himself states in the explanation he has submitted. It is not even arguable that if a Magistrate passes an incomplete order, leaving out a part which might and ought to have been included and if before he can rectify the omission, he is transferred, the party against whom the order ought to have been made acquires a vested right in the error which can no longer be corrected. I may add that not only did the case not come to an end. as a matter of law with the order of the 22nd February, but an application for restoration of possession was actually pending before Sri C. L. Chaudhuri when he left the station on transfer and that application had to be disposed of.
27. The contention that Sri C. L. Chaudhuri must be deemed to have declined to make an order for possession is clearly unwarranted by the facts of the case and I am somewhat surprised that it was advanced. It is not easy to understand why it should be presumed that the Magistrate, after holding that Jitendra had been wrongfully dispossessed within two months and that he was entitled to possession, yet declined to give effect to his finding and make a consequential order that possession must be restored to him. The order of 22-2-1951 shows nothing more than an omission to give certain further directions which the statute did not imperatively require the Magistrate to give at the same time. Indeed, the matter is placed beyond all doubt by the order passed on 27th February on the subsequent application made to Sri C. L. Chaudhuri himself, in which he did not say that he had already decided not to make an order for possession, but only said that in view of the pendency of the application before the Sessions Judge, it would not be proper for him to-make any further order at that stage. It was contended that if the Magistrate did not decline to make an order for possession on 22nd February, ho at least did so on the 27th. In view of the terms of the order of the latter date, the contention is-plainly untenable.
28. It was, however, contended that assuming, an order for possession could still be made in the case and even made by another Magistrate, the Sub-Divisional Officer did not validly acquire-jurisdiction over it and therefore the orders made by him were bad. Our attention was drawn to the fact that there was no order withdrawing the case to the Sub-divisional Officer's file. Even on this point, I am unable to accept the contention of the Petitioner. The case was originally transferred by the Sub-Divisional Officer himself to the file of Sri C. L. Chaudhuri and on the transfer of that Magistrate, it reverted, I should think automatically, to the Sub-divisional Officer. There is no succession in the case of Magistrate as the presiding officers of particular Courts and, besides, the transfer in this case was, by name. There could hardly be any order of withdrawal in this case, because Section 528 (2) speaks of withdrawing or recalling a case from a subordinate Magistrate and when the Magistrate who was dealing with a case is gone, there is obviously no one from whom it can be withdrawn. Assuming, however, that even when a Magistrate is transferred, his file remains, the Sub-Divisional Officer could certainly withdraw the case under Section 192 (l), read with Section 528 (2) and his omission to record a formal order of withdrawal was only an irregularity.
29. Towards the close of his argument, Mr. Dutt raised a subsidiary point, adding at the same time that he did not set much store by it. He contended that since all the parties asserted in their written statements that no contingency of a breach of the peace between them existed, the Magistrate ought to have cancelled the initial order under the provisions of Section 145 (5) or at any rate, should have first taken evidence on the question as to whether any dispute likely to cause a breach of the peace existed. As regards the contention, it is only necessary to point out that while the petitioner and Harendra each said that there was no likelihood of a breach of the-peace by him, neither credited persons other than himself with, similar pacific intentions. Jitendra's written statement was that there was no likelihood of a breach of the peace between himself and the petitioner, but he did not say what the position was between him and his brother Harendra. I am not forgetting that they were both made members of the First Party, but it must not be forgotten that Jitendra had lodged an information with the police that there was an apprehension of a breach of the peace between his brother and himself and in the course of the proceeding he submitted by a petition that the proper place of Harendra was on the other side, with Kshudiram. The case thus falls within the principle of the decision in Jnanendra Narayan v. Samad Molla, A. I. R. 1943 Cal. 559. where it was hold that there could be no question of cancelling an order under Section 14.5 (5) when each party only professed his own love of peace. Reference may also be made to the decision in Ranada Banjan v. Bharat Chandra Saha, 25 Cal. W. N. 215 where it was held that the mere fact that both parties denied that there was any likelihood of breach of the peace could be no ground for stopping the proceedings under Section 145 (5). It was laconically added that stoppage of proceedings upon such protestations often resulted in breaking of heads.
30. The above is sufficient to dispose of this contention but I may point out that even if the Magistrate was at least bound to take evidence as to the likelihood of a breach of the peace, that was what he actually did. After filing their written statements, the parties proceeded to adduce evidence and neither the aim, nor the effect of the ovidence was to establish that no dispute likely to cause a breach of the peace existed. The Magistrate found no reason in the evidence to cancel the initial order and therefore did not do so.
31. It was lastly contended that the description of the disputed property, as given in the order of 22nd February 1951, was too wide and since Jitendra had been ordered to be put into possession of the disputed property by the orders of the 4th and the 11th May, a difficult situation would arise unless the declaratory order was corrected. It was admitted on behalf of Opposite Party No. 1 Jitendra, that this complaint was justified and that the whole of Dag No. 772 was not the disputed property, as stated in the order of 22nd February 1951. Both parties agreed that the correct description of the disputed property was that to no found in the police report which is as follows:
'In Simulia Mauza, Dag No. 772 and khatian No. 84.
vsdVh ekVhj nks rkyk fVusj Nkuh izkphj 'kgc'kr ckVh v/kdkBk tk;xj mij vofLFkr-Boundary.
East-House of Jitendra Nati Mondal, West - Lane, the house of Khudiram Mondal. North-Lane, the Bishnu Mandir, South House of Hirendra Nath Mondal.'
32. The order of 22-2-1951 will, therefore, be corrected by the substitution of the above description of the disputed property for the description given in the order.
33. In the result, E. 711 is discharged. Rule 660 is also discharged, subject to the direction as to the correction of the description of the disputed property in the order of 22-2-1951, as given above,
34. These two applications for revision have been heard together and are being disposed of by a single order. The first rule in Criminal Revision Case No. 660 of 1951 is directed against an order of Sri A. B. Rudra, Sub-Divisional Magistrate of Katwa, dated 11-5-1951 directing the O/c Mongalkote P. S. to deliver possession of a certain property to Jitendra Nath Mandal by breaking open the locks if necessary. The second rule in criminal Revision Case No. 711 is directed against an order of Sri 0. L. Choudhury, Magistrate, 1st class, Katwa, dated 22-2-1951, made under Section 145 (6), Criminal P. C., declaring the said Jitendra Nath Mandal to be in possession of the disputed property until evicted therefrom and forbidding all disturbance of such possession until such eviction. The disputed property which is the subject-matter of both the applications is the north-western corner of a piece of land bearing Dag No. 772 under Khatian No. 84 mouza Simulia of the approximate area of 1/2 cotta, with a hut standing thereon.
35. The facts are briefly as follows - One Bepin Mandal since deceased, had four sons, Radhika, Jogesh, Jitendra and Harendra. Radhika died long ago and lias no interest in the disputed property. Jogosh is also dead, leaving him surviving his widow Surabala. Jitendra and Harendra are parties to these applications. Umabala and Pabitrabala are the wives of Jitendra and Harendra respectively.
36. Bepin was originally the owner of the southern portion of Dag 772 where he had his homestead.
37. In 1326-27 B. S. the north-eastern portion of Dag 772 was acquired, in. the name of Jitendra and Harendra and the north-western portion in the name of Jogesh. On behalf of Jitendra and Harendra it is alleged that it was Bepin who purchased the lands in the benami names of his sons, but this is not admitted by Khudiram. In 1329 B. S. Bepin transferred the southern portion to Umabala and Pabitrabala. During settlement operations the entire Dag 772 was recorded in the names of these two ladies. Jogesh predeceased Bepin leaving him surviving his widow Surabala.
38. Bepin died in 1344 B. S. and in 1352 B. S. the two brothers Jitendra and Harendra purported to partition the entirety of Dag 772 between themselves, Jitendra getting the northern half and Harendra the southern half.
39. According to the Mondal brothers, Jogesh was a mere benamidar and neither he nor his wife ever resided in the disputed property. Khudiram Mandal is an outsider. He claims to have purchased the disputed property (i.e. 1/2 cottah of land with a hut situated in the north western corner of Dag 772) by a registered deed, of sale, dated 6th Ashar 1357 B. S. from Surabala, widow of Jogesh. According to him, Jogesh was the real owner of the disputed property and after his death, Surabala his widow sold the same to Khudiram and put him in possession.
40. According to Jitendra, Jogesh was a mere benamidar and never owned the property nor resided therein. After his death, Surabala is residing with Harendra who is the real person at the back of the dispute. He further says that, Khudiram is a man of no substance and is a mere creature of Harendra. Since the partition, Jitendra claims to have been in possession of the entire northern portion but complains that Harendra has set up an alleged purchaser from Surabala and that he has been forcibly dispossessed of the disputed property on or about 23rd Sravan 1357 B. S. (8-8-1950).
41. On 8-8-1950, Jitendra lodged an information at the police thana Mongalkote that Harendra had forcibly closed his sadar door and there was an apprehension of a breach of the peace. The police enquired into the matter and on 30-8-1950, made a report to the effect that it was Jitendra who was responsible for an apprehended breach of the peace. The police report inter alia proceeded as follows :
'As both the parties are claiming the land in question, so their claims may be judicially decided. It is further worth mentioning here that the 1st party made several attempts to drive the 2nd party forcibly from the land in question and the 1st party also threatened the 2nd party,
I, therefore, submit that a proceeding under Section 145, Criminal P. 0, may kindly be drawn up and the land in question may kindly be attached and the 1st party may be bound down under 8. 107, Criminal P. C.'
42. On 30-8-1950, Sri A. B. Eudra, Sub-divisional officer Katwa ordered as follows :
'Seen Police Report Draw up proceeding under Section 145, Criminal P. C., asking both parties to file written statement on 14-9-1950.'
Proceedings were accordingly drawn up and an order dated 1-9-1950 was made under Section 145 (l), Criminal P. C., in the following terms :
'Proceedings under Section 145, Criminal P. C. Case No. 76 Mis/50.1. Jitendra Nath Mandal Kudiram Mandal2. Harendra Nath Mandal of SimuliaSimulia P. S. Mkte v. P. S. Mkte1st Party 2nd Party.
Whereas it appears to me that a dispute likely to induce a breach of the peace exists between the parties mentioned above concerning possession of the land scheduled below, I., Dr. A. B. Rudra, S. D. O. Katwa do hereby direct both parties to appear before me on 14-9-1950 and put in written statements of their respective claims as respects the fact of actual possession of the subject in dispute.
Description of the landMauza Simulia Plot No. 772 Sd A. B. EudraKhatian No. 84 a two-storied S.D.O. of Katwamud-built house. 1-9-1950.'
43. This is the order that was served upon theparties. It will be observed that the parties in this proceeding are not the two brothers only. The two brothers are made 1st parties against Khudiram who is the 2nd party. On 14-9-1950, Jitendra made an application for transposing Harendra to be a member of the 2nd party but 1952 Cal./91 & 92 this application was not granted. The parties then filed their respective written statements. The respective cases advanced by Jitendra and Khudiram have already been stated above. Harendra said that he was not interested in the property except as to the southern half of Dag 772. He admitted that Jitendra had been in possession of the entire northern half but had been dispossessed of late of a portion by Khudiram. Jitendra said that there was no apprehension of any breach of the peace between him and Khudiram but he complained of forcible dispossession and wanted to be put back in possession. Both Harendra and Khudiram said that there was no apprehension of a breach of the peace so far as the homestead was concerned. This of course is quite true because the actual property in dispute was only a half cottah in the north western corner of Dag 772 with a hut, and the description as given in the above order dated 1-9-1950, is quite incorrect. This defect in the order would have been fatal but for the fact that all the parties knew exactly what the dispute was and dealt with the same in their respective written statements. There was, therefore, no prejudice suffered by any party by reason of the inaccuracy in the description of the disputed property.
44. The Sub-divisional officer of Katwa who issued the preliminary order transferred the case to Sri S. N. Banerjee, a Magistrate under him, for disposal. It was later withdrawn to his own file again and transferred to Sri C. L. Chaudhury, another Magistrate, for disposal. The learned Magistrate took evidence and came to the conclusion that Jitendra was entitled to possession. The operative portion of his order dated. 22-2-1951 was as follows:
'I, therefore, declare that Jitendra Mandal of the 1st party is entitled to the possession of the proceeding land with the hut thereon until evicted therefrom in due course of law and I forbid all disturbance of such possession until such eviction.'
45. An application was made before the Sessions Judge for quashing the order and while it was pending, an application was made by Jitendra before the trying Magistrate for restoration of possession under Section 145 (6), Criminal P. C. As the criminal motion was pending, the learned Magistrate refrained at that stage from passing any order, but before it was finally disposed of (it was rejected on 30-4-1951), he was transferred from the Station and an application was made before the Sub-divisional officer Katwa to pass an order for restoration of possession. In the meanwhile, Khudiram had instituted a Civil Suit before the Munsiff's Court, Katwa, being Title Suit No. 91 of 1951 for declaration of his title in the disputed property and applied for an interim injunction restraining the Mondal brothers from disturbing his possession. The learned Munsiff sent a letter of request to the Sub-divisional officer, Katwa requesting him to stay his hands until the application for injunction was disposed of. But this the Sub-divisional officer, Katwa refused to do and by his order dated 4th May 1951, directed the O/c Mangalkote P. S. to restore possession of the land which is the subject matter of the Section 145 proceedings. On nth May 1951, he further ordered the O/c Mongolkote P. S. to deliver possession to Jitendra by breaking open the locks if necessary. Against this order an application was made to the Sessions Judge who expressed an opinion that in a situation like this the criminal Court ought to respect the order of the learned Munsiff, but he declined to interfere. We might have been called upon to deal with the question as to whether the Sub-divisional officer, Katwa acted properly in ignoring the request of a civil Court to stay his hands, both from the point of view of law and propriety and that sense of 'comity' which ought to exist between the Courts of our land; but this has become unnecessary because the application for an injunction ultimately failed and has been dismissed by the learned Munsiff. It is clear therefore that in the civil suit, Khudiram failed to make out a prima facie title. In these proceedings, however, we are not concerned with the title to the disputed property but possession. In a well-reasoned judgment the trying Magistrate has held that Jitendra was in possession and was ousted by Khudiram. This finding has been upheld by the learned Additional Sessions Judge of Katwa and we find no reason to differ with him. The orders mentioned above, are however assailed on several grounds which I shall now proceed to consider.
The first ground of objection relates to the form in which the order dated 1st September 1950 was passed. Section 145 (1), Criminal P. C. lays down that the Magistrate upon being satisfied from a police-report or other information that a dispute likely to cause a breach of the peace existed concerning any land or water or the boundaries thereof,
'stall 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 etc.'
The actual order dated 1st September 1950 as drawn up, contains no grounds upon which the Magistrate could be satisfied that a dispute likely to induce a breach of the peace existed between the parties concerned. Upon this point a slight confusion exists as to whether the order dated 30th August 1950 as noted' in the order-sheet or the order dated 1st September 1950 as drawn up, is to be considered the order under Section 145 (l), Criminal P. C, or a combination of the two. In my opinion, it must be the order as drawn up and dated 1st September 1950. The order dated 30th August directs proceedings to be drawn up under Section 145, Criminal P. C. The order dated 1st September 1950 which was accordingly drawn up and signed by the Magistrate was the initiation of such proceedings and must be deemed to be the preliminary order contemplated by Section 145 (1), Criminal P. C. The order dated 30th August 1950 is no doubt the first item in the order-sheet of Case No. 764 of 1950, but this only directs somebody, presumably the Nazir of the Court, to draw up a formal order under Section 145 (l), Criminal P. C.,, which would then require the signature of the Magistrate. It is a copy of this order as drawn. up, that had to be served in the manner prescribed by sub-rule (3)to Section 145.
Learned advocate for the respondent however argues that the order dated 1st September 1950 must be read with the order as noted in the order-sheet which clearly refers to the police report and this is a sufficient compliance with. Section 145 (l), Criminal P. C. He relies on the authority of a Full Bench decision of this Court :. Khosh Mahomed Sircar v. Nazir Mahomed, 9 Cal W N 1065. In that case, the preliminary order passed by the Magistrate under Section 145 (1). Criminal P. C. was in the following terms:
'Whereas it appears from the police report dated 23rd January 1905, that there exists a dispute which is to cause a breach of the peace.....'
46. The question was whether the grounds had been sufficiently set out in the order so as to comply with the requirements of Section 145 (l), Criminal P. C. The referring bench disagreed with, the view taken in the cases of Mohesh Sowar v. Narain Bag, 27 Cal. 981; Nityanand v. Paresb Nath, 9 Cal. W. N. 621 and Sital Mondul v. Rajani Kant, Cri Revn. 311 of 1905 (cal) and agreed with the view taken in the cases of Dhanput Singh v. Chatterput Singh, 20 Cal. 513; Goluck Chandra v. Kali Charan, 13 Cal. 175 and Gobinda Chander v. Abdul Sayed, 6 CaL 835 In their opinion, we ought to look to the substance, of the notice rather than the form and although a reference to any other document ought not to be necessary to ascertain the grounds upon which. the Magistrate had proceeded, yet it did not follow that the police-report ought riot to have1 been taken as part of the proceedings and by reference incorporated with it. No doubt if the police-report itself did not disclose any grounds: for holding that there was a likelihood of a breach of the peace occurring, the position would be-different and its incorporation ins the order would not improve matters.
47. The Full Bench presided, by Maclean C. J agree with this view.
48. This case was followed in Kuloda Kinkar Boy v. Danesh Mir, 33 Cal. 33 which elucidated the nature of the police-report which would justify a Magistrate in incorporating the same in? his order by referring to it. Such a police report, it was held, should contain a statement of the facts from which the Magistrate may be satisfied of the existence of a likelihood' of a breach of the peace. The mere fact of the existence of a dispute was not enough, nor was the mere expression of an opinion by the police sufficient. It is essential for the assumption of jurisdiction by the Magistrate that he should be satisfied that there was a present danger of a breach of the peace. Gobinda Chunder v. Abdul Sayed, 6 Cal. 835. Anesh Mollah v. Ejaharuddi, 28 Cal. 446, Uma Ghuran Santra v. Beni Madhub Boy, 7 Cal. L. E. 352.
49. It is however argued in this case that the question of incorporating the police-report in the order made by the Magistrate does not arise because there is no reference in the order to the police-report at all. I think that this contention is well founded. The foundation of the principle enunciated in the Full Bench Case Khosh Mohamed v. Nazir Mohamed, 33 Cal. 68, ibid is that a reference to the police report in the order under Section 145 (l), Criminal P. C., gave a sufficient indication to the parties of the grounds, which they can find out from a reference to it. But where the police-report is not mentioned at all in the order of the Magistrate, it cannot be held to have been incorporated therein by implication. The mention of it in the order of 30-8-3950 is not enough, since that order is not the order contemplated by Section 145 (l), Criminal P. C, and was not served upon the parties. Therefore the question to be next determined is as to whether the absence of the grounds of satisfaction in the preliminary order of the Magistrate, makes the proceedings founded upon it, utterly void and without jurisdiction, and if so, is it incumbent upon us to set aside the final order, irrespective of any question of prejudice which such omission may have caused to the parties in conducting their defence. It is appropriate to state here that in spite of the omission of any reference to the police-report in the order, the parties were quite aware of the existence of the same and fully dealt with it in their written statement. In fact, this point was not at all taken before the learned Additional Sesssions Judge. The learned advocate for the petitioner before us has not been able to point out how his client was prejudiced by the absence of (1) the grounds of satisfaction of the Magistrate (2) absence of a reference to the police report or (3) inaccuracy in the description of the disputed property-in the order dated 1-9-1950. He however urges that the question is one of jurisdiction. If the initiatory order does not contain the grounds either expressly, nor by a reference to the police report, the proceedings are incompetent and the question of prejudice does not arise. The answer may be given in the language of the order of reference in the Full Bench decision of Sukh Lal v. Tara Chand, 9 Cal. W. N. 1046, with which the Full Bench ultimately agreed:
'Questions of jurisdiction may consequently arise in one of three ways, that is, either in relation to the subject matter or in relation to the parties or in relation to the question submitted for the decision of the Court. Another class of questions may, however, arise, namely, whether, a Court in the exercise of the jurisdiction which it possesses, has acted according to the mode prescribed by the Statute. If such a question is raised, it relates obviously not to the existence of the jurisdiction, but to the exercise of it in an irregular or an illegal manner. We are not prepared to accept the view that a non-compliance with every rule of procedure destroys the jurisdiction of the Court. Such non-compliance may in some cases amount to nothing more than an irregularity and consequently be insufficient to invalidate the proceedings until it is shown that any party bas been prejudiced by reason thereof. In other cases, such non-compliance may amount to an illegality and thus destroy the validity of the whole proceedings' See Tasadak Rasullchan v. Ahmed Hossain, 20 Ind. App. 176 (P. C.), Malkarjun v. Narhari, 5 Cal. W. N. 10.'
50. The actual case was in respect of a non-compliance with the provisions of Section 145 (3), Criminal P. C, whereby it is directed that a copy of the order made under Section 145 (1), 'shall be served in the manner provided by this Code.' It was held that non-service of notice did not make the proceedings without jurisdiction but was a mere irregularity in procedure and the High Court would not interfere unless it was shown to its satisfaction that the parties suffered some prejudice. The view taken in the cases of Nawab Solemollah v. Ishan Chandra, 9 Cal. W. N. 909 and Hari Kishen v. Kashi Pershad Criminal Revn. No. 472 of 1905 was dissented from. The observations quoted above were reiterated in the Full Bench decision of Khosh Mahomed v. Nazir Ahmed, 9 Cal. W. N. 1065.
51. The order of reference in that case contains the following observations :
'It is clear that in order to give jurisdiction to a Magistrate to take proceedings under Section 145, it is essential that he should be satisfied that a dispute likely to cause a breach of the peace exists, and such dispute must refer to land or water or the boundaries thereof lying within his local jurisdiction. If these elements exist, the Magistrate is entitled to exercise his jurisdiction, and the first step is the recording of the initial order, the contents of which are specified in the first clause of Section 145. If the order does not strictly comply with the requirements of the section because it does not contain a statement of the grounds upon which a Magistrate is satisfied, it is no doubt defective, but we are unable to appreciate the grounds upon which it is contended that such defective order is one made without jurisdiction.'
52. The actual decision of the Full Bench did not expressly deal with this aspect of the matter but the view must be deemed to have been accepted, as it accepted the reasons and the conclusions contained in the order of reference. In any event, we are in complete agreement with the reasoning and in my opinion, it is a complete answer to the point raised. The foundation of jurisdiction under Section 145 is the satisfaction of the Magistrate. The rest is mere procedure. That procedure having been laid down must of course be strictly followed, and nothing that we say here is meant to be a premium to carelessness or as an encouragement to laxity. But the point is whether we should set aside proceedings where there are defects in procedure but no prejudice has been suffered by the parties. If the order was served in this form and the parties had no opportunity of discovering that it referred to the police report or as to what was said in the police report, or could not adduce proper evidence because of the want of the grounds or the inaccuracy of description of the property, we would at once have interfered. As I have pointed out, however,the parties knew of the grounds exactly and dealt with the same in their written statements and adduced evidence on the precise issue that is involved in the case. The parties having suffered no prejudice, the proceedings are not bad ; Section 537, Criminal P. C., is conclusive on that point.
53. The above view is in consonance with the view taken in other High Courts. In the Full Bench case of Kapoor Chand v. Suraj Prasad, A. I. R. 1933 ALL. 264, it was stated as follows:
'.....The jurisdiction of the Magistrate arises from the fact that he has received certain information and that he is satisfied as to the truth of that information. The jurisdiction of the Magistrate does not depend upon how he proceeds. There are two things. One is the authority conferred upon him to act and the other is how he is to act. If he has jurisdiction he is not deprived of jurisdiction merely because his procedure is erroneous or detective. If this view be right the omission on the part of the Magistrate to follow certain directions contained in the Code although some of these directions may be more important than others, cannot be said to deprivehim of jurisdiction......The object of procedure is to enable the Court to do justice, but if in spite of even total disregard of the rules of procedure, justice has been done, there would exist no necessity for setting aside the final order which is just and correct simply because the procedure adopted was wrong.'
54. In the Special Bench case of S. M Yaqub v. T. N. Basu, A. I. R. 1949 Pat. 146, Meridith J. said as follows:
' With regard to the first contention, it is true that the Magistrate did not act on a police report. He acted on petitions filed by members of the first party only, and though he did hear the parties and has expressed the opinion that a danger of a breach of the peace existed, he did not state his grounds for that opinion. Under Section 145 (1) the Magistrate in his order drawing up proceedings shall state the, grounds of his being so satisfied and in this the Magistrate's procedure is certainly not in accordance with the provisions of Section 145 (1). Nevertheless I am of opinion that the High Court would be taking an unjustifiable risk and responsibility in interfering with an order merely for this reason when the Magistrate has definitely expressed his view that there is a danger to the public peace. The responsibility for maintenance of the peace is that of the Magistrate, not that of the high Court. The proceedings are only of a semi judicial nature. To some extent they may be regarded as administrative. The failure to state the grounds in my view does not touch the question of jurisdiction.'
55. A similar view was taken by a divisional bench of the Madras High Court in Kamal Kutty v. Udayavarma Raja of Chirakkal, 36 Mad. 275. Also see Jhanda Bam v. Topan Bam, A. I. R. 1922 Lah. 454, Farid v. Peru, A. I. R. 1914 Sind 8. This point is, therefore, of no substance and must fail.
56. The next point made, relates to the final order made on 22-2-1951. It will be observed from the operative portion of the order set out above, that there was no order made by the learned Magistrate as regards restoration of possession. Ah application was subsequently made before him for an order directing restoration of possession but he did not deal with it and before he could do so, he was transferred. The actual orders dated 4th and 11-5-1951, for restoration of possession were made by the Sub-Divisional Officer, Katwa. It is argued that only one order is contemplated by sub-s. (6) of Section 145, Criminal P. C., and not several orders and in any event not by two different ' Magistrates. It is further argued that the learned Magistrate passing the order on 22-2-1951 had a discretion to make an order for restoration of possession, and since he did not do so, it must be taken to signify that he refused it. Thereafter he became functus-officio by transfer and the Sub-Divisional Officer who did not make the original order could not supplement it. In my opinion, this argument is based upon a misconception of the provisions of Section 145 (6), Criminal P. C., and the nature of the final order to be passed therein. Under the first part of the sub-section, the Magistrate has to come to a decision as to whether one of the parties was or should be treated as being in possession of the disputed property having been forcibly or wrongfully dispossessed within two months next before the making of the order. If he so decides, he has next to issue an order declaring such a party to be entitled to possession until evicted therefrom in due course of law and forbidding.,all disturbance of such possession until such eviction. The concluding portion is discretionary and runs as follows :
'and when he proceeds under the first proviso to sub-section (4) may restore to possession the party forcibly and wrongfully dispossessed.'
It will be noticed that there is express provision for an order being passed for a declaration and for restraining disturbance of possession, but none in respect of arriving at a decision or for restoration of possession.
57. The form of the final order is given in Sch. v (Form 22) and the operative portion reads as follows :
'I do decide and declare that he is (or they are) in possession of the said (the subject of dispute) and entitled to retain such possession until ousted by due course of law, and do strictly forbid any disturbance of his (or their) possession in the meantime.....'
58. The Codes of 1861 and 1872 did not contain the proviso to Section 145 (4) as appearing in the present Code of 1898 and the sections as framed (S. 318, Code of 1861, Section 530 Code of 1872) required the Magistrate to find out as to who was in actual possession. There was a conflict of opinion as to what actual possession meant. Some decisions held that it must be construed as 'Peaceful possession' and excluded the possession of a trespasser (In the matter of Mohesh Chandra, 4 Cal. 417, Jagat Kishore v. Ashanullah, 16 Cal 281) other decisions held that it included the possession of a trespasser (In re Girdhar Dhanji, Eat. Un. Cr. C. 27.) The Code of 1898, therefore, introduced the proviso to Section 145 (4), but previous to the amendment of 1923 there was no power to restore possession except under Section 522, Criminal P. C. By the amendment of 1923, the Magistrate has been given power to restore possession, but Form 22 of Sch. V which is the prescribed form of the final order, does not contain any reference to it.
59. Therefore a final order under Section 145 (6), contemplates the following eventualities.
(1) Where the Magistrate finds that one of the parties is in possession but not as a result of forcibly or wrongfully dispossessing another party within two months previous to the making of the order -in such a case the proper order would be to declare his right to be in possession until evicted therefrom in due course of law and forbid the other parties to disturb his possession or (2) Where the Magistrate finds that a party was in possession but has been forcibly or wrongfully dispossessed by another party within two months previous to the making of the order - in such a case the proper order would be to declare the party so dispossessed, as being entitled to possession until evicted therefrom in due course of law and to forbid the other parties from disturbing his possession.
60. In the second case, it is quite apparent that a further relief may be necessary. Merely declaring the right of a party to possess might not bring him actual possession and an order restraining the other parties from disturbing his possession would be meaningless unless he is restored to such possession. It is because of this that the amendment of 1923 gave power to the Magistrate to restore possession. On the other hand, a party may be content with an order for a declaration and an injunction because the other party might give up possession without further trouble or is driven to institute a suit, or for a variety of reasons upon which we need not speculate. But I find nothing in Section 145 (6) which makes it mandatory that an order for restoration of possession should form an integral part of the original order and be passed at one and the same time as the original order. The final order would be in the form given in Sch. V (Form 22) and later on, when a party is unable to get possession, he can apply to the Court to act under the last part of sub-s. (6) and restore possession to him. It is somewhat of an auxiliary order and if an analogy is permitted in the nature of execution.
61. The Magistrate is not functus officio, immediately he pronounces the final order in the prescribed form. He can still deal with an application for the auxiliary order of restoration to possession. In this case, this is exactly what happened, since an application was made before the trying Magistrate for such a relief. He did not deal with the application at that stage because a criminal motion was pending against his final order as made on 22-2-1951. But before he could deal with that application he was transferred. The next question that arises is as to whether the Sub-Divisional Officer, Katwa could then deal with that question. It is admitted that the original proceedings under Section 145 were initiated by the Sub-Divisional Officer who then transferred it to Sri C. L. Chaudhury for disposal, which he was quite competent to do. It is also admitted that the Sub-divisional officer could withdraw the case from the said Magistrate and either try it himself, or retransfer it to some other Magistrate subordinate to him. But it is argued that in this case the Sub-divisional Officer, Katwa did not make any order of withdrawal or re-transfer. This arguments ignores the effect of the transfer of Sri C. L. Chaudhury from the station. Since the proceedings were not finally concluded and the trying Magistrate was transferred, the proceedings automatically reverted back to the Sub-divisional officer and it was not necessary for him to formally withdraw it from Sri C. L. Chaudhury. The principle of a 'Successor Court' as in civil cases would not apply to such a proceeding and I cannot see any valid reason why the Sub-divisional officer, Katwa could not deal with the application for restoration of possession and pass the orders dated 4th and 11th May 1951. This point accordingly fails.
The next point urged is one which is somewhat difficult to follow. It is argued that Jitendra in his written statement said that there was no apprehension of a breach of peace between him and Khudiram. Harendra also says that there is no apprehension of a breach of peace between him and any party, and Khudiram also says that there is no apprehension of any breach of the peace so far as he is concerned. It is then argued that the learned Magistrate has not found that there is an apprehension of a breach of the peace by anybody and as such he could not make an order under Section 145 (6). This point is however of no substance. One has only to read the written statements as a whole to be disabused of the impression that the parties really intended to say that no apprehension of a breach of the peace existed. The statement that no such apprehension existed in respect of the homestead is meaningless because that is not the disputed property. Each party was blaming the other and Jitendra complained that he was wrongfully dispossessed by Harendra and wanted to be put back in possession. He was complaining that Harendra had put up Khudiram and Khudiram characterised the proceedings as initiated by the brothers in collusion. From these facts the learned Magistrate was free to draw his own conclusions. The question of being satisfied as to the likelihood of a breach of the peace occurring, is an element to be considered for an order under Section 145 (l), but once the proceedings have been validly initiated, it is not one of the essential ingredients in passing the final order under Section 145 (6). No doubt, the jurisdiction being a preventive one, the moment a magistrate is satisfied that there is no longer a possible apprehension of a breach of the peace he should bring the proceedings to an end. But that does not mean that he should at every stage go on recording his satisfaction as to the existence or otherwise of such an apprehension. If he chooses to go on, it must be presumed that he is not satisfied that the apprehension has ceased. The last point relates to the misdescription of the property in the order dated 1st September 1950. As I have already stated, it is admitted that the description is not correct. But the parties knew exactly what property was in dispute and dealt with the same in their pleadings and adduced a mass of evidence. In revision, we cannot accept this as a ground for interference unless we are satisfied that the misdescription has caused some prejudice.
62. Mr. Mukherjee appearing for the respondents has pointed out that if the Sub-divisional officer, Katwa had no jurisdiction to make an order for restoration of possession or if there is a misdescription of the property, we as a Court of revision could ourselves pass an order for restoration of possession and correct the misdescription. We have already held that the orders passed by the Sub-divisional officer are quite valid, but we do feel that the description of the disputed property should be corrected once for all, otherwise there will be enormous complications in future. The parties having agreed, the description of the disputed property will be as stated in my Lord's order.
63. For the reasons given above, I agree that the rules should be discharged.