1. This Rule relates to an order passed under Section 145, Criminal Procedure Code, by a Deputy Magistrate of Faridpur. The proceedings were in respect of a chur about 2,500 bighas in area in the river Padma, near the Goalundo Ghat Railway Station. There were three parties to the proceedings. The area has been divided into three portions, marked as Blocks A B and C in the same map. Block A has been declared to be in possession of the first party, Block C of the second party and Block B of the third party. The second party have moved this Court and obtained this Rule.
2. In order to deal with the contentions urged in support of this Rule it is necessary to state a few facts. The dispute relating to this chur has a long history at its back. For our present purposes it is not necessary to go beyond the 29th January, 1925, when the Sub Inspector of Goalundo Ghat Thana visited the chur on information received about an apprehended breach of the peace. On that, occasion the said Sub Inspector prepared a sketch (Ex. 6) dividing the chur into three portions marked thereon as Blocks A, B and C as representing the lands of which he found the three parties, namely, the first, third and second parties respectively in possession. This sketch (Ex. 6) he submitted along with a report, dated the 8th February, 1925. To prevent a breach of the peace he posted constables and also an armed guard on the chur. On the basis of the aforesaid Police report proceedings under Section 145, Criminal Procedure Code, were started on or about the 12th February 1925, but eventually on the 27th March, 1925, the said proceedings were dropped and an order under Section 144, Criminal Procedure Code, was passed, confining the possession of the three parties to the three blocks aforesaid. On the 9th April, 1925, the said blocks were demarcated by the posting of pegs. The armed guard was withdrawn and only a few constables were left on the chur. With this relaxation of watch on the part of the Police, certain disturbances took place on the 13th April, 1925. These led to the institution of two criminal cases against the men of the second party. One of these cases ended in the acquittal of the men concerned therein, before the order complained of in the present Rule was passed. It is said that the other case also had the same fate, though at the date of the said order it was yet pending. The Sub-Inspector of Goalundo Ghat Thana then submitted a further report in continuation of the report of the 8th February, 1925, on the 26th April, 1925, and thereupon on the 28th April, 1925, the present proceedings under Section 145, Criminal Procedure Code, were started. These proceedings terminated in the order, dated the 16th April, 1926, against which this Rule is directed.
3. The Rule has been issued upon four grounds, being grounds Nos. 2, 4, 5 and 8 of the petition of motion. The contentions involved in these grounds have to be grouped in a somewhat different way for the sake of convenience.
4. The first contention relates to the admissibility or rather the evidentiary value of three maps, Exs. L, B and 8. Exhibit L is the map of the chur prepared by a Pleader Commissioner Babu Hem Chandra Majumdar under the orders of the Magistrate for use in these proceedings. It was considered necessary to have an accurate map prepared by a trained surveyor showing the whole chur as well as the blocks which appeared in the sketch Ex. 6, and that is why this map was prepared. It does not appear that it has been used in evidence in respect of any matter which it purports to depict and the only use that has been made of it is to refer to it for identifying the blocks in respect of which the final order has been made. Exhibit 8 is the map prepared in August, 1924, by an Amin Gopal Chandra Das in connection with certain demarcation proceedings under the Survey Act that took place at the time. This map is explanatory of Ex. 9 the order passed in these proceedings and is, therefore, relevant. As regards Ex. B which is a map prepared by a Kanungoo at the instance of two of the parties, viz., the first and the second parties, it only shows the thak and the survey lines relaid on the Commissioner's map, Ex. L, and it is difficult to imagine how it is irrelevant and in any case no reliance appears to have been placed on it in the order which is complained against in this Rule. This contention, therefore, is of no substance.
5. The next contention is to the effect that certain pieces of documentary evidence which are very material on the question of possession and are in favour of the second party have not been duly considered by the Magistrate. This contention relates to the documents marked Exs. 7, P, Z6, T and X. Exhibit 7 is an order in the order sheet of a previous case under Section 144, Criminal Procedure Code, dated 31st April, 1924, in which the then Sub-Divisional Magistrate on a visit to the locality expressed the opinion that the present second party or rather the principal members of it were in possession of the chur and issued an injunction on the first party in those proceedings restraining them under Section 144, Criminal Procedure Code, from entering on the lands of the chur. Exhibit P is the order of the High Court, dated 18th March, 1924, refusing to interfere with the injunction, Ex. 7, and the learned Judges who passed that order were of opinion that the view as to possession which the Sub-Divisional Magistrate had taken was right. Exhibit Z6 is the order-sheet of certain proceedings under Section 145, Criminal Procedure Code, which were drawn up on the 23rd December, 1925, but were dropped on the same day, and which on the submission of the Police report of the 8th February, 1925, were revived but were again dropped on the 27th March, 1925, an order under Section 144, Criminal Procedure Code, being passed instead as has been already stated. This last mentioned order under Section 144, Criminal Code, has been referred to in the Magistrate's judgment. Exhibits X and T are judgments, dated 29th June, 1925 and, 31st August, 1925, in certain criminal cases of rioting and mischief (one of these relating to one of the two cases which arose out of the occurrences of the 13th April, 1925), which ended in the acquittal of men of the second party and in which there are some observations showing that the accused concerned therein were in possession of the lands involved in those occurrences. Apart from the fact that some of these documents are not inter partes, the evidentiary value of the findings on the question of possession such as they are contained in these documents, at the date with which we are concerned, is practically nil. The orders under Section 144 could only refer to a point of time when they were passed and assuming that what was stated therein on the question of possession was anything more than the opinion of the Courts which passed those orders, these orders cannot show who came to be in possession when the statutory period during which these orders remained operative was at an end. The judgments of the Criminal Courts, in which the men of the second party were acquitted and in which it was incidentally found that they were in possession, can only be evidence of the fact that there were those cases and that they ended in such acquittal, but the finding on the question of possession which is a ground of such acquittal can hardly be any evidence in the present proceedings.
6. The third contention urged in support of the Rule is to the effect that the Police report, dated the 8th February, 1925, and the sketch Ex. 6 have been wrongly used as evidence on the question of possession. Along with this contention it will be convenient to deal with the fourth one, namely, that as because of the prohibitory order passed on the 27th March, 1925, the parties were precluded from giving evidence of their possession in the entire chur, the Magistrate should have directed his enquiry on the question of possession not as at the date of the proceedings but as on 27th March, 1925.
7. The process of reasoning by which the learned Magistrate has arrived at his conclusion is as follows :--To quote his own words he was of opinion that 'the oral evidence of the tenants and other witnesses as regards facts of actual possession by the respective parties is not only of a partisan kind but lacks definiteness on most essential points.' He found, however, that there were certain 'landmarks' in the evidence which were practically admitted by the parties and on which he could safely rely. He found that the sketch prepared by the Sub-Inspector of Goalundo Ghat Thana showed the possession of three parties in different portions of the chur which he depicted in the Blocks A, B and C. This possession in his opinion remained intact till the 9th April, 1925, when pegs were posted demarcating the blocks, as already stated. He was further of opinion that there could not have been any change in the possession of the parties during this period because the armed guard remained on the spot from the beginning of February to the first part of April, 1925. Accordingly he held that the possession of the parties at the date of the proceedings--unless there was a forcible and wrongful change on the 13th. April, 1915, which for the purpose of Section 145 is of no avail as being within two months from the date of the proceedings--was the same as it was on the 29th January, 1925, and as shown by the Sub-Inspector in his report, dated 8th February, 1925, and the sketch Ex. 6. Despite the very ingenious arguments advanced on behalf of the first and the third parties this is what seems to me to be substance of the reasoning of the learned Magistrate. This reasoning to my mind is perfectly sound, but for the assumption which it makes, namely, that the sketch Ex. 6 and the statement in the Police report of the 8th February, 1925, correctly represent the state of affairs as they stood at the time. If this assumption is correct, then no objection can be taken to the Magistrate having found possession at the date of the proceedings and not on the 27th March, 1925, for in that case there was no change of possession from the 29th February, 1925, at any time forward. The only legitimate use to which the sketch and the report could be put is to treat them as the basis of the proceedings and as affording materials for determining the question of likelihood of a breach of the peace and of the identity of the subject-matter of the dispute and of the disputing parties. The use that has been made of these documents is to treat the fact, evidenced thereby, of the Sub-Inspector having seen the parties in possession of the respective blocks as a 'land-mark'--the word being used figuratively--which serves as a guide leading to the conclusions at which the learned Magistrate has arrived. The other evidence on the record has been only treated as corroborative of this map and Ex. 6 so far as this matter is concerned. I am, therefore, clearly of opinion that the use that has been made of these two documents is not a proper one, and that they should be excluded from consideration as evidence of possession. I am unable to accept as well founded the arguments of the first and the third parties that when these documents were admitted without objection their admissibility cannot be challenged now, because the question here is not a mere question of mode of proof but a question of the evidentiary value of their contents on the question of possession.
8. The learned Sessions Judge in his order refusing to make a reference to this Court against the order appears to have taken the same view of this matter. He has, however, observed in his order that there are other materials on the record sufficient to justify the learned Magistrate in arriving at the conclusion that the three parties are entitled to retain possession of the three blocks shown in the map Ex. 6. This also is the argument that has been addressed to us by the first and the third parties in this Rule. We have accordingly examined the evidence, that is on the record and we note below our conclusions on that evidence.
9. The observations of the learned Magistrate as to the character of the oral evidence which have been quoted above are, in our opinion, too general and while they are correct in so far as the question of possession in respect of particular plots of the different tenants is concerned, there is a body of evidence which is clear, definite and unambiguous. That evidence establishes the following facts: (a) That the blocks lie within certain defined boundaries, (b) that the possession of the different tenants who hold lands on the border between two contiguous blocks does not extend beyond the line separating one block from another, (c) that there is definite evidence showing that the blocks were in the possession of one or other of the parties at the date of the Sub-Inspector's visit to the chur on the 29th January, 1925, and (d) that it is more than improbable that there could have been any change of possession in respect of these blocks so long as the armed guard remained on the spot, that is to say, until well within two months before the date of the proceedings. It is reasonable to suppose that if after the removal of the armed guard there was any change of possession it must have been by wrongful and forcible dispossession, of which no notice need be taken for our present purposes. The evidence referred to above appears also to have been relied upon by the learned Magistrate and we see no reason why we should not accept it.
10. We are, therefore, of opinion that there is no reason to interfere with the order complained of in this Rule and the Rule must accordingly be discharged.
11. I agree.