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Kutuhul Singh and ors. Vs. Uma Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal31
AppellantKutuhul Singh and ors.
RespondentUma Singh and ors.
Cases ReferredAzim Mollah v. Sutoo Poramanick
Excerpt:
criminal procedure code (act x of 1882), section 145 - joint hearing of the case of several claimants--possession--number of plots, dispute as to--practice. - .....the classes of persons claiming under the same zemindar assert, in respect of different parcels of land, different and independent rights, and the contest as in respect of each parcel of land claimed by kutuhul singh and any one of his party is plainly as between that person and any of the persons on the other side who claim that parcel of land. we think that, apart from any question of prejudice arising hereafter from the form of the order, the party of the persons who complain of the investigation being mixed up as it were are entitled to maintain that objection on the ground that the investigation into their case might well be, and probably was, prejudiced by that course being pursued. we think that they are also entitled to object to the form of the order on the ground stated by.....
Judgment:
ORDER

1. This matter before us turns upon a rule granted on the 20th July, 1887, calling upon the party in whose favour an order under Section 145 was passed to show cause why the order of the Assistant Magistrate of the 23rd June, 1887, should not be set aside. The order was one made under Section 145 of the Code of Criminal Procedure. The dispute, upon the allegation of the existence of which the Magistrate took action arose, between classes of persons each of whom claimed to be possessed of land of which Tofuzul Hossein was the zemindar. The persons for whom Mr. M. Ghose and Mr. Gregory appear, to the number of 39 individuals, claim to be interested as tenants under that zemindar in the property with reference to which the order is made. The persons against whom the order has been made, and for whom Baboo Umbica Churn Bose appears, are Kutuhul Singh and others, being seventeen in number, persons claiming to be interested in various portions of land with reference to which the order is passed as occupancy tenants holding lands in different quantities and under interests which appear to have been acquired at different times. Under these circumstances the Magistrate, by a notice dated the 11th February, served on the 19th February of this year, instituted proceedings under Section 145.

2. It is unnecessary now to see how it came to pass that those proceedings were initiated under that section. The matter having been gone into in detail, and, as we are informed, after minute examination on both sides of the title to the lands in question, the Magistrate came to a finding in these words: 'I therefore order that the first party are entitled to possession of the 708 bighas of Gogi Kandah, mouzah Mokama, until evicted therefrom by due course of law, and I forbid all disturbance of such possession until such eviction.' The petitioners Kutuhul Singh and others have obtained this rule, and they object in the first place that that order is bad, and that the investigation held which led up to it is bad on the ground that the several claims to possession of the numerous parties on each side were jointly, or at least indiscriminately, investigated, and have been jointly Or indiscriminately adjudicated upon. They raised that objection in the written statement filed by them in the proceedings so early as, I understand, the 15th April of this year, and they raised it, according to the translation of the Official Interpreter of this Court, in these words: 'The case under Section 145, Code of Criminal Procedure, can by no means, jointly and individually, proceed unless it is shown what piece of land is claimed, by what tenants alleged by TofuzulHossein, proprietor. But no such fact exists on the record.' We have been referred to the case of Azim Mollah v. Sutoo Poramanick 10 C.L.R. 623 as showing that an order under Section 145 may well be made, although it does compendiously order that one set of persons are in possession as against another set of persons without attempting to specify which is entitled as against which to which portion of the land in question. The circumstances of that case appear to be sufficiently different from those of the present. Here the classes of persons claiming under the same zemindar assert, in respect of different parcels of land, different and independent rights, and the contest as in respect of each parcel of land claimed by Kutuhul Singh and any one of his party is plainly as between that person and any of the persons on the other side who claim that parcel of land. We think that, apart from any question of prejudice arising hereafter from the form of the order, the party of the persons who complain of the investigation being mixed up as it were are entitled to maintain that objection on the ground that the investigation into their case might well be, and probably was, prejudiced by that course being pursued. We think that they are also entitled to object to the form of the order on the ground stated by their learned pleader, that proceeding by civil suit would, in the face of an order in this form, render necessary the making as defendants of a multitude of persons who are by the terms of the order held to be in possession of the land in question. It is suggested that we should remit the case to the Magistrate for a finding which should cure that last defect, the defect of the order, by enabling him, or in truth directing him to make 39 separate orders under Section 145 declaring the 39 claimants entitled to possession of the several parcels claimed and, as we are told, set out in boundaries by them in their written statement. Were it possible to do that it would not cure the objections to these proceedings on the other ground But it appears that the Magistrate who heard the greater part of to case is no longer Magistrate in that district. We have no means i telling further whether, if he were there, he could do more than mace the compendious order which is before us and which in effect is that those people (the party of Uma Singh) in a body are in possession of; he entire land in dispute. But in any case it would be impossible now to cure the original defect of the proceedings that is pointed out in the paragraph of the written statement to which we have referred. Under these circumstances we think that the rule must be made absolute and the proceedings set aside.


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