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Aran Sardar and ors. Vs. Hara Sundar Majumdar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal95,71Ind.Cas.225
AppellantAran Sardar and ors.
RespondentHara Sundar Majumdar and ors.
Excerpt:
criminal procedure code (act v of 1898), section 145 - possession adjudged--disturbance of possession--maintenance of peace--fresh proceedings under section 145--wrong exercise of judicial discretion--government of india act, 1915, (5 & 6 geo v, c. 61), section 107--abuse of process of court--interference by high court. - .....at this stage. we are of opinion, however, that when legal proceedings are taken under the code of criminal procedure which amounts to an abuse of process of the court and the object of which is only to harass the party, who has got a previous order of the magistrate in his favour, this court has ample jurisdiction to interfere and ought to interfere, under section 107 of the government of india act. the object of the second party is quite apparent in instituting these proceedings. it is to get an. order in his favour, if possible, contrary to the order which was passed in august 1919, and, if not, even an adverse order, which may also be of advantage to him. if the proceedings are allowed to continue and terminate in a fresh order under section 145, criminal procedure code, it.....
Judgment:

1. We are invited in this Rule, which was obtained under Section 107 of the Government of India Act, to quash certain proceedings initiated by the Sub-Divisional Magistrate of Manikganj under Section 145, Criminal Procedure Code.

2. The question in controversy lies within a very narrow compass. There was a proceeding under Section 145, Criminal Procedure Code, between the first party and' persons now represented by the second party which resulted in an order being made in favour of the first party on the 29th of August 1919 declaring such party to be entitled to retain possession until evicted in due course of law and forbidding all disturbance of such possession until such eviction. The principal person of the second party then was one U.N. Roy. The interest of U.N. Roy has now passed to one Hara Sundar Mazumdar and, he is now the principal person among the second party. It appears that after Hara Sundar acquired his interest he began to disturb the possession of the first party, which was maintained by the order of the 29th of August 1919. There is no dispute as to the identity of the parties. There was a question whether the present -dispute related to the same land which was the subject-matter of dispute in the proceedings mentioned before and the Magistrate deputed a Kanungoa to make a local enquiry. The result of the enquiry, shortly stated, was that the lands in the present dispute were included within the lands which formed the subject-matter of the previous dispute. The learned Magistrate thereupon made on order on the 18th May 1922 which runs as follows:

I am satisfied from the Kanungoe's report that the eastern boundary of the lands at present in dispute is not identical with that which was the boundary of the lands in the former 145, Criminal Procedure Code. Nevertheless, the lands at present in dispute form part of the lands adjudged under the 145 proceedings, but there is evidence of a bona fide dispute as to actual possession now. Therefore, as I consider a breach of the peace to be imminent, I hereby attach the whole of the lands included in Sheet. No. 1, Purulia, under Section 145(4), Criminal Procedure Code, Draw up new proceedings under Section 145, parties to produce evidence as to possession on 6th June 1922.

3. The identity of the parties and the lands being established it was clearly the duty of the Magistrate to see that the possession of the first party adjudged under the previous order was not disturbed. That order is binding on the parties and the unsuccessful party cannot be allowed to disregard it and disturb the possession of the other party without having recourse to law. It is not the proper course for the Magistrate to initiate fresh proceedings under Section 145 of the Criminal Procedure Code for maintaining the peace.

4. It has been contended on behalf of the opposite party that this Court has no jurisdiction to quash the proceedings at this stage. We are of opinion, however, that when legal proceedings are taken under the Code of Criminal Procedure which amounts to an abuse of process of the Court and the object of which is only to harass the party, who has got a previous order of the Magistrate in his favour, this Court has ample jurisdiction to interfere and ought to interfere, under Section 107 of the Government of India Act. The object of the second party is quite apparent in instituting these proceedings. It is to get an. order in his favour, if possible, contrary to the order which was passed in August 1919, and, if not, even an adverse order, which may also be of advantage to him. If the proceedings are allowed to continue and terminate in a fresh order under Section 145, Criminal Procedure Code, it would affect the first party in another way. As is well known, the previous order of the 29th of August 1919 is binding upon the parties to the proceedings and a suit for recovery of possession by a person against whom that order was made can only be brought within three years of the order under Article 47 of the limitation Act, it the proceedings terminate in a fresh order it would be really giving the second party, assuming that the new order is made against him, a fresh start of limitation in order to bring a suit for recovery of possession. That is a proceeding which, appears to us, can hardly be justified.

5. It has further been argued on behalf of the opposite party that we should not interfere with the discretion of the Magistrate to proceed either under Section 107, Criminal Procedure Code, or under Section 145 of that Code, as he thought fit, and the learned Vakil has cited a number of cases in support of his contention. It is, no doubt, true, if things stood alone, it was perfectly competent to the Magistrate to initiate such proceedings as he thought proper and the High Court would not interfere with his discretion in starting proceedings according to his judgment. In this case, however, it was the duty of the Magistrate, as already pointed out, to maintain the first party in possession under the order passed previously under Section 145, Criminal Procedure Code, and not to start fresh proceedings under that section. The Magistrate has ample powers under the law to maintain peace and to see that the order made in August 1919 is obeyed. In this case, therefore, in our opinion, the Magistrate did not exercise proper judicial discretion in starting proceedings under Section 145 afresh. The result of such a course would be that the binding effect of an order under Section 145, Criminal Procedure Code, would be disregarded and any number of proceedings may be initiated by any disappointed party leading to no result whatsoever, a position which would surely be intolerable.

6. One other argument which was addressed on behalf of the opposite party is, that the character of the property has been changed. This, we consider, does not require any serious consideration: because even assuming that part of the land was submerged and has re-appeared, there was no difficulty with regard to the identification of the lands: and the mere fact, that there was temporary submergence would not nullify the effect of the previous order passed with regard to them on the 29th of August 1919.

7. We, therefore, set aside the order of the Magistrate, dated the 18th May 1922, instituting fresh proceedings under Section 145, Criminal Procedure, Code, With regard to the lands in dispute. This order will, not preclude the Magistrate from taking-such other proceedings as he may consider necessary for the purpose of maintaining the first party in possession of the property and for the preservation of the peace.


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