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Ram Narayan Goswami and ors. Vs. Biswanath Goswami - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revision No. 758 of 1957
Judge
Reported inAIR1959Cal366,1959CriLJ705
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 146, 146(1) and 439
AppellantRam Narayan Goswami and ors.
RespondentBiswanath Goswami
Appellant AdvocateA.K. Dutt and ;J.M. De, Advs.
Respondent AdvocateS.N. Banerjee and ;C.N. Mukherji, Advs.
Cases ReferredRamhari Mondal v. Nilmoni Mondal
Excerpt:
- .....burdwan, and the opposite party to show cause why an order passed under section 145 of the code of criminal procedure declaring the first party to be in possession of certain plot of land should not be set aside.2. it appears that the disputed land belonged to the deity sree madan gopal jiu of which the petitioners (second party in the proceedings) and the father of the first party (opposite party in this rule) are the shebaits. the opposite party claimed to be in possession of the disputed land as tenant under the deity represented by the shebaits while the petitioners contended that the disputed lands were the khas lands of the said deity and were in actual possession of the bargadars of the deity.3. a point was taken that the petitioners did not claim actual possession of all.....
Judgment:
ORDER

N.K. Sen, J.

1. This Rule was issued upon the District Magistrate, Burdwan, and the opposite party to show cause why an order passed under Section 145 of the Code of Criminal Procedure declaring the first party to be in possession of certain plot of land should not be set aside.

2. It appears that the disputed land belonged to the deity Sree Madan Gopal Jiu of which the petitioners (second party in the proceedings) and the father of the first party (opposite party in this rule) are the shebaits. The opposite party claimed to be in possession of the disputed land as tenant under the deity represented by the shebaits while the petitioners contended that the disputed lands were the khas lands of the said deity and were in actual possession of the bargadars of the deity.

3. A point was taken that the petitioners did not claim actual possession of all the disputed lands which they stated were in the actual possession of the bargadars of the deity and hence on the admission of the petitioners the learned Magistrate had no jurisdiction to initiate any proceedings under Section 145 of the Code of Criminal Procedure. In the proceedings the second party disputed the above point and asserted that they claimed possession in respect of the disputed lands as shebaits of the deity.

4. The proceedings in this case were drawn up on 6-6-1956, and the parties filed their affidavits. In substance, the second party petitioners denied that the opposite party had ever been in possession of the lands in dispute. The learned Magistrate on a consideration of the case of both sides was unable to decide which side was in possession and therefore sent the case to the 3rd Court of the Munsif-at Burdwan under the provisions of Section 146(1) of the Code of Criminal Procedure to decide the question whether any or which of the parties was in possession of the subject of the dispute at the date of the order. Thereafter the learned Munsif under the provisions of Sub-section 1(a) of Section 146 considered the evidence and after hearing the parties came to the conclusion that the petitioners were in possession of plots Nos. 3773 and 3786 of khatian No. 981 of Mouza Keranda and that none of the parties was in possession of plots Nos. 4923 and 4980 of Khatian No. 619 of Mouza Khargram and that the remaining, plots were in possession of the first party. Thereafter the learned Magistrate proceeded to dispose of the proceedings under Section 145 in conformity with the decision of the civil court.

5. A point has been taken there has been no finding by the trial court as to who was in possession of the land in dispute on the date of the proceeding. A reference to Sub-section (4) of Section 145 of the Code will show that 'the Magistrate shall............ .and i possible decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject. Now, if the Magistrate was unable to decide as to which of them was then in such possession, the Magistrate was under the provisions of Section 146 of the Code of Criminal Procedure to forward the records of the proceedings to a civil court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in Sub-section (4) of Section 145 of the Code of Criminal Procedure. This the Magistrate has done in the present case.

6. It is next urged that inasmuch as some shebaits of the deity and some bargadars who were actually cultivating the land had not been made parties, an order under Section 145 of the Code of Criminal Procedure will not be binding upon those who have not been made parties to the proceeding, I have been referred to two unreported decisions of this Court. The case of Tarapada Nag Choudhury Cri. Revn. No. 193 of 1957 (Cal) decided by S. K. Sen J. is on the point that if a person entitled to a disputed land be not impleaded, an order under Section 145 of the Code of Criminal Procedure will not bind him at all. In the case of Jagadish Chandra Ghosh Cri. Revn. No. 275 of 1957 (Cal) Guba Ray J. remanded the case to enable the lessees who applied for being made parties for being impleaded. Another case cited was the case of Bholanath Dhar v. Gour Gopal, : AIR1953Cal777 . of the report (CWN): (at p. 780 of AIR) their Lordships held that 'an order under Section 145 of the Code of Criminal Procedure is not bad merely because all interested persons are not made parties. So, on this ground there is no reason to set aside the final order of the learned Magistrate. The order is valid so far as the parties actually before the learned Magistrate are concerned.'

7. I respectfully agree with their Lordships and I hold that if the parties who are now alleged to be necessary parties are not impleaded, they will not be bound by this order and nothing more.

8. Two other points have been taken and may be disposed of together. It is argued that the learned Magistrate had not recorded an independent finding nor did he appreciate the evidence properly.

9. Appreciation of evidence is a question of fact and I will not interfere with a finding of fact in a case under Section 145 of the Code of Criminal Procedure. See in this connection the case of Abdul Satar v. Udha Lal 93 Ind Cas 695 (Lah) and the case of Phakir Mandal v. Madar Mandal : AIR1931Cal619 . So far as the question of the Magistrate not having come to an independent finding of his own is concerned, the amended Procedure Code indeed stands in the way of accepting this argument. Sub-section (1) (B) of Section 146 enjoins upon the trying Magistrate to dispose of the proceeding under Section 145 in conformity with the decision of the Civil Court. So long, therefore, the finding of the Magistrate is in conformity with the decision of the Civil Court, an order under Section 145 of the Code of Criminal Procedure on the question of possession cannot be challenged. It seems clear that once a matter is referred to the civil court and such court decides the question of possession so referred to it, the referring Magistrate has no option other than to dispose of the proceeding in conformity with the decision of the civil court. It, therefore, follows that the trying Magistrate was not entitled to come to any other finding of his own.

10. The second party petitioner have made another grievance before this Court that the learned Magistrate should not have passed the order that he did inasmuch as the first party did not examine some other witnesses and did not produce home of the documents at the time of the attestation proceedings which, according to the petitioners, would have shown that the opposite party was not in possession. It was further contended that under the provisions of Sub-section (1) (B) of Section 146 it was the duty of the civil court to have concluded the enquiry within a period of three months which not being done the order of the civil court was of no avail.

11. So far as the period of three months is concerned, I do not think if an enquiry is not concluded within that period, it cannot at all vitiate the decision of the court. In this connection Mr. S. N. Banerjee who appeared in this case for the opposite party cited before the case of Ramhari Mondal v. Nilmoni Mondal, : AIR1952Cal184 decided by P. B. Mukharji and P. N. Mukherjee JJ.

In that case the requirement of Rule 7(3) of the Rules framed under the West Bengal Bargadars Act came up for consideration and it was held that 'the rule that 'every application before the Board shall be disposed of within three weeks from the filing of the application' was rot a mandatory provision but a directory provision and a decision may he given within a reasonable time. To invalidate a decision merely because it was given at a time beyond three months would work serious general inconvenience or injustice to persons who have no control over the Board and hence the rule is to be taken only as a rule of guidance.' The language of Sub-section (1)(B) of Section 140 of the Code of Criminal Procedure is that 'the civil court shall, as far as practicable, within a period of three months from the date of appearance of the parties before it conclude the enquiry'. The significant words are 'as far as practicable'. This argument, therefore, is of no substance.

12. It will be next section a reference to Sub-section (1)(D) of Section 140 of the Code of Criminal Procedure trust there was to be no appeal from the finding of the civil court given on reference under thissection nor shall any review or revision of any suchfinding be allowed. In this view of the matter alsothe finding of the civil court must be held to bei conclusive.

13. It therefore follows that the judgment of the learned Magistrate in the proceedings being in conformity with the findings of the civil court, there is no merit in the application made before this Court. As I have said, the decision of the civil court on a reference under Section 146 of the Criminal Procedure Code cannot even be challenged, Sub-section (1) (D) of Section 146 of the Code of Criminal Procedure being a bar. The only remedy left would be to go to a court of competent jurisdiction under Sub-section (1)(E) of Section 146 of the Code of Criminal Procedure. The petitioners, if they feel aggrieved, must go to the civil court or take such other steps as they may be advised.

14. The Rule is therefore discharged. Let the records be sent down as early as possible.


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