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Misil Mirdha and ors. Vs. Abdul Rahim and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1934Cal787,153Ind.Cas.174
AppellantMisil Mirdha and ors.
RespondentAbdul Rahim and ors.
Excerpt:
- .....1933 by which the first proceedings were dropped, is set aside as being ultra vires and those proceedings, namely the proceedings based on the order of 7th november 1932, are declared to be still subsisting. the records will be sent back to the magistrate with the direction that he should continue the enquiry based on the order dated 7th november 1932, and dispose of those proceedings according to law. the magistrate will consider whether, in view of the revival of the original proceedings, the attachment of the fisheries in dispute which was in force during the pendency of those proceedings, should not be restored.
Judgment:

1. This Rule relates to certain proceedings under Section 145, Criminal P. C, and is directed against an order dated 18th April 1933, declaring the opposite party to be in possession of the disputed fisheries. The order complained of was made as a result of proceedings which were started by an order dated 4th February 1933. There had been previous proceedings with regard to the same matter, based on an order dated 7th November 1932. Those proceedings had however been dropped on 4th January 1933 by reason of the death of the principal member of the opposite party. The order of 18th April 1933, against which this Rule is directed, has been attacked on various grounds, but it will be sufficient for the disposal of this Rule to consider only one of these grounds, viz., that the order dropping the previous proceedings was ultra vires, that those proceedings ought to be regarded as still subsisting, and that the subsequent proceedings were therefore without jurisdiction. This contention is, in our opinion, well founded, and must be given effect to. The object of Section 145 is to prevent breaches of the peace from occurring as a result of disputes regarding land or water or the boundaries thereof, and it provides a summary procedure for dertermining which party was in possession at the date on which the proceedings were started. Once proceedings under that section have been started, they must be proceeded with until the question of possession has been determined, and the order on which the proceedings are based can only be cancelled if the Magistrate is satisfied that no dispute likely to cause a breach of the peace exists or has existed; vide sub-section (5).

2. In the present case, there was nothing before the Magistrate who dealt with the original proceedings to show that no dispute likely to cause a breach of the peace existed, or had existed, and the order dropping the proceedings does not in fact purport to have been made under sub-section (5). The order dropping the proceedings was made merely because one of the parties to the proceedings had died but such an eventuality is provided for in sub-section (7) which empowers the Magistrate to cause the legal representatives of the deceased to be made parties, and directs that the Magistrate shall thereupon continue the enquiry. It is therefore clear that the order of 4th January 1933 by which the proceedings were dropped, was ultra vires, and that the proper course for the Magistrate, on being informed of the death of one of the parties to the proceedings, was to continue the enquiry after making such substitution as might seem to him to be necessary. The result of the original proceedings having been dropped and fresh proceedings having been taken was, as the event has proved, to debar the petitioners from giving evidence in support of their claim to have been in possession of the disputed fisheries from time immemorial, and to limit the scope of the enquiry to the question of possession during the brief interval which elapsed between the withdrawal of the attachment which followed as a matter of course on the dropping of the original proceedings on 4th January 1933, and the initiation of fresh proceedings on 4th February 1933. In these circumstances it is clearly necessary in the interest of justice that the original proceedings should be revived and that the question of possession on the date on which those proceedings were started, viz. on 7th November 1932, should be decided according to law.

3. The Rule is accordingly made absolute, the order dated 18th April 1933 declaring the opposite party to be in possession is set aside, and the proceedings as a result of which that order was made are declared to have been without jurisdiction. The order dated 4th January 1933 by which the first proceedings were dropped, is set aside as being ultra vires and those proceedings, namely the proceedings based on the order of 7th November 1932, are declared to be still subsisting. The records will be sent back to the Magistrate with the direction that he should continue the enquiry based on the order dated 7th November 1932, and dispose of those proceedings according to law. The Magistrate will consider whether, in view of the revival of the original proceedings, the attachment of the fisheries in dispute which was in force during the pendency of those proceedings, should not be restored.


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