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Yar Mohammad Saha Vs. Hayat Mohammad Saha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in42Ind.Cas.768
AppellantYar Mohammad Saha
RespondentHayat Mohammad Saha and ors.
Cases ReferredPaladugu Parasuramayya v. Valli Ramachandradu
Excerpt:
limitation act (ix of 1908), schedule i, article 47 - suit for possession of lands declared in possession of defendant by order under criminal procedure code, section 145--limitation--criminal procedure code (act v of 1898), sections 145, 537, schedule v, from xxii--proceedings under section 145--withdrawal of one party order, final, form of--omission to take evidence on behalf of party in whose favour order made, effect of--order, whether can be made by consent. - .....dispute and the first party is directed not to enter upon the lands and not to disturb the second party's possession thereof till the latter be evicted therefrom by due process of law. each party to bear his own costs.'3. the present suit was instituted on the 27th january 19l2 and both the courts below have held that the suit was barred under article 47 of the limitation act. it is contended on behalf of the appellant that the magistrate had no jurisdiction to make the order under that section, without taking evidence on behalf; of the second party and without coming to a finding that the latter was in possession at the time mentioned in the section and that, therefore, article 47 did not bar the suit.4. there is no doubt that under sub-section 4 of section 145, the magistrate is bound.....
Judgment:

Chatterjea, J.

1. The question involved in this appeal is, whether the suit out of which it arises is barred by limitation under Article 47 of the Limitation Act.

2. It appears that the plaintiff, was the first party, and the defendants were the second party, in a proceeding under Section 145 of the Criminal Procedure Code with respect to the land in dispute in this suit, the proceeding having been initiated by the plaintiff himself. The Magistrate made a preliminary order under Sub-section 1 of that section and the parties filed their respective written statements. The plaintiff examined three witnesses before the Magistrate and then put in a petition in which he stated: I beg respectfully to state that I have instituted a case under the aforesaid section. I shall not prosecute that case under the said section. I shall conduct the case in Civil Court and I shall not enter upon the said land until the matter shall have been settled by the Civil Court. I, therefore, pray that the said case may be allowed to be withdrawn'. The Magistrate thereupon made the following order on the 24th August 1906: 'Examined three witnesses for the first party. Yar Muhammad (1st party) then filed a petition, stating that he would not proceed with the case here and that he would not enter upon the land till the matter is decided in a Civil Court. The second party is declared to be in possession of the lands in dispute and the first party is directed not to enter upon the lands and not to disturb the second party's possession thereof till the latter be evicted therefrom by due process of law. Each party to bear his own costs.'

3. The present suit was instituted on the 27th January 19l2 and both the Courts below have held that the suit was barred under Article 47 of the Limitation Act. It is contended on behalf of the appellant that the Magistrate had no jurisdiction to make the order under that section, without taking evidence on behalf; of the second party and without coming to a finding that the latter was in possession at the time mentioned in the section and that, therefore, Article 47 did not bar the suit.

4. There is no doubt that under Sub-section 4 of Section 145, the Magistrate is bound to receive the evidence produced by the parties, consider the effect of such evidence and, if possible, decide whether any and which of the parties was at the time mentioned in the section in possession of the subject of dispute, and I think that the provisions of the section must be complied with in order to make it a valid order.

5. In the present case, however, the first party adduced evidence. The evidence is not before us, but it was presumably unfavourable to him. He then gave up his case (so far as those proceedings were concerned) completely, and there was, therefore, no further dispute as to which of the two parties was in actual possession. The order under Sub Section (1) was not cancelled, there was no suggestion that any third party was in possession, and in the circumstances, the petition amounted to an admission that the defendants (the second party) were in actual possession at the time, and the Magistrate's order may be taken as deciding the question of possession in favour of the defendants.

6. The omission to record a formal finding on the point under the circumstances, I think, does not render the order in-effectual, for: the purpose of the present case in which the question of its validity is raised collaterally.

7. I am accordingly of opinion that the suit is barred by limitation. The appeal is dismissed with costs.

Richardson, J.

8. The question for decision in this second appeal is whether the suit instituted by; the plaintiff appellant as both the Courts below have held,; barred by limitation under Article 47 of the Schedule to the Limitation Act.

9. The land, which the plaintiff is seeking to recover, was the subject of proceedings under Section 145 of the Criminal Procedure Code. In those proceedings initiated by the plaintiff himself, the Magistrate made an order on the 24th August 1906, declaring the second party, the present defendants, to the in possession, and directing the first party, the plaintiff; not to enter upon the land or to disturb the second party's possession till they were evicted therefrom in due course of law. The suit was instituted oh the 27th January 1912, more than three years after that order.

10. Article 47 applies to a suit by any person bound by an order respecting the possession of immoveable property, made under the Code of Criminal Procedure, or by any one claiming under such person to recover possession of the property comprised in such order. The period of limitation is three years from the date of the final order in the case.'

11. It is conceded that if the Magistrate's order was a good and valid order the suit is barred, but it is contended, that the order was without jurisdiction and ultra vires. It is said that the Magistrate did not expressly find in accordance with Sub-section (4) of Section 145 that the second party were in actual possession of the disputed land at the date of his pre; liminary order made under Sub-section (1), requiring the parties to appear before him and to put in written statements of their respective claims as respects' the fast of actual possession.

12. What happened was this. As I have said, the plaintiff set the Magistrate in motion. The Magistrate made a proper; preliminary order and the parties: came before him and filed their written statements. The plaintiff went into evidenece and three witnesses, were examined on his, behalf. Then, on the 24th August 1906, the plaintiff filed the following petition:

I beg respectfully to state that I have instituted a case under the aforesaid section. I shall not prosecute that case under the said section. I shall conduct the case in the Civil Court and I shall not enter upon the said land until the matter shall have been settled by the Civil Court. I, therefore, pray that the said case may be allowed to be withdrawn.

13. Upon that the Magistrate made this order:

Examined three witnesses for the first party. Yar Muhammad (first party) then filed a petition stating that he would not proceed with the case here and that he would not enter upon the land till the matter is decided in a Civil Court. The second party is declared to be in possession of the lands in dispute and the first party is directed not to enter upon the lands and not to disturb the second party's possession thereof till the latter be evicted therefrom by due process of law. Each party to bear its, own Costs.

14. Now, I agree that even if an order could be made under Section 145 by consent, the plaintiff did not by his petition consent to the order made. But the petition did not deprive the Magistrate of jurisdiction. The Magistrate was not obliged merely by reason of the undertaking it contained to stay his hand. Nor was this suggested. The Magistrate was not asked to cancel his preliminary order, and not having been cancelled, the order under Clause (5) was final. It was open to the Magistrate, therefore, to make an order under Clause (6).

15. The depositions of the plaintiff's witnesses have not been placed before us, but the natural inference is that their evidence was unfavourable to the plaintiff. At any rate it cannot be said on the materials before us that the Magistrate was not justified in treating the petition as an admission by the plaintiff that he could not prove possession at the critical time. In the circumstances, the plaintiff having retired from the field and there being no question of possession by any third party, it was unnecessary for the Magistrate to examine any more witnesses. His order made in those circumstances is capable of being construed and, in my opinion, should be construed as a declaration that the second party were in possession at all material times.

16. But apart from that, the order appears to be in sufficient compliance with the terms of Clause (6). A form for such an order will be found in Schedule V (No. XXII). The forms in the Schedule are not obligatory. Section 555 provides that they may be used', with such variation as the circumstances of each case may require', and it further provides that 'if used' they 'shall be sufficient.' The Magistrate's order does not follow precisely the terms of Form XXII, but 'the objection now taken applies equally to both. In the declaration of possession set out in the form no reference is made to the date of the preliminary order. It can hardly be contended that objection which would apply equally to the statutory form should prevail.

17. I agree with the Courts below that there is no substance in the contention that the Magistrate's order is invalid for want of jurisdiction and, therefore, not binding on the plaintiff.

18. The observations are sufficient to dispose of the appeal, but it may be added in view of the argument addressed to us that even assuming that the Magistrate's order was defective in form, the question would still arise whether the defect was such as to vitiate the whole proceedings. This is not a case of the violation of a condition precedent. It is admitted that the Magistrate properly entered upon the inquiry in which the order was made. The case of Nusserwanjee Pestonjee v. Meer Mynoodeen Khan 6 M. I. A. 134: 19 E. R. 50, which was cited has, therefore, no application; There a deed of submission to arbitration was1 defective and it was held (with reference to Bombay Regulation VII of 1827) that the defect was fatal. The arbitrator's credentials, so to speak, were not in order and h had no authority to enter upon the arbitration. No doubt even proceedings before a competent Tribunal may have an invalid result. In the case of Raja Ram Narain Singh v Chaudhrain Bhagwant Kuar 18 I. A. 55: 13 A. 300: 6 Sar. P. C. 3. 14: 15 Ind. Jur. 283: 7 Ind. Dec. (n. s.) 189 (P. C.), decided under the Civil Procedure Code of. 1882, the objection taken to the terms of the order of reference to arbitration was not sustained, but it was held that the award was invalid because it was not delivered within the time allowed and enlarged by the Court, and Section 521 of the Code expressly declared that no award should be valid unless made within a period allowed by the Court.

19. Nevertheless, where an inquiry has been properly entered upon, it is not every error which makes the result invalid. The distinction must not be neglected between things done 'wholly without jurisdiction,' and things done within jurisdiction though erroneously and irregularly done. The words are those of Baron Parke in Calder v. Halket 2 M. I. A. 293: 81 E. R. 311: 3 Moo P. C. 28: 2 State. Tr. (n. s.) 481: Morton 396: 1 Sar. P. C. J. 191, and by way of illustration reference may be made to Rajah Bommarauze Bahadur v. Rangasamy Muduly 6 M. I. A. 232: 1 Sar. P. C. J. 53: 19 E. R. 86. Numerous other oases might be cited, but it is sufficient to say that before want of jurisdiction can be predicated in this class of cases, a vice must be clearly established which infects the whole proceedings. There must be an illegality' as opposed to an irregularity Subrahmania Ayyar v. King-Emperor 28 I. A. 257: 25 M. 61: 11 M. L. J. 243: 3 Bom. L. R. 540: 6 C. W. N. 866: 2 Weir 271: 8 Sar. P. C. J. 160.

20. The question of jurisdiction in relation to Section 145 of the Criminal Procedure Code was much discussed by the learned Judges (Rampini and Mookerjee, JJ.) who made the references to a Full Bench in Sukh Lal Sheikh v. Tara Chand Ta 33 C. 68: 2 C. L. J. 241: 9 C. W. N. 1046: 2 Cr. L. J. 618 and Khosh Mahomed Sirkar v. Nasir Mahomed 33 C. 352: 9 C. W. N. 1095: 2 C. L. J. 259: 2 Cr. L. J. 637.

21. Proceedings under Section 145 of the Code are excluded from the revisional jurisdiction conferred on the High Court under Section 435 and the following sections of the Criminal Procedure Code. But it has long been the practice of the Court to exercise in this class of cases its revisional powers as a Court of superintendence under the High Courts Act (now Section 107 of the Government of India Act, 1915). It is always said that the Court will only interfere under those powers when the Magistrate has acted without jurisdiction or in excess of his jurisdiction. There may, however, have been a tendency for this purpose to apply the term jurisdiction' somewhat loosely or to give it a wider meaning than it legitimately or strictly bears. The reported cases? are so multitudinous that it would be an entirely unprofitable task to examine them or to attempt to extract from them any common principle, and it is possible that the decisions of the Full Bench have had the effect of checking the tendency to which I have referred. However that may be, when the Court has interfered in revision in this way, it has interfered in the case itself and the object has been to secure some uniformity and order in the administration of the law. But when the Magistrate's order is attacked in collateral proceedings on the ground of want of jurisdiction, very different considerations arise. In such a case the plea must, of course, be strictly established.

22. In the present case the defect suggested is in the final order made under Clause (6). All that can be said is that the Magistrate, when he declared possession to be with the second party, did not add the words 'at the date of the preliminary order.' It is true that Clause (4) requires the Magistrate to determine possession at the date of the preliminary order. But the, omission in the order does not show that the Magistrate did not in fact decide the question of possession correctly. Such an admission is clearly subject to the provisions of Section 537 of the Code, and would not justify the interference even of an Appellate Court' (supposing an appeal lay) unless it was made to appear that the omission had in fact occasioned a failure of justice. An omission of this character does not entitle the plaintiff' to impeach the Magistrate's order in collateral, proceedings. In this suit the burden was on the plaintiff under Section 44 of the evidence Act to show that the order from which he desires to escape 'was delivered' by a Court not competent to deliver it.' This is only saying again that no mere irregularity will suffice. At the most nothing more is established. This view is supported by the decision of the Madras High. Court in Paladugu Parasuramayya v. Valli Ramachandradu 21 Ind. Cas. 564: 38 M. 432: 14 M. L. T. 392: (1813): M. W. N. 871. The case of Sardhari Lal, v. Ambika Pershad 15 I. A. 123: 15 C. 521: 5 Sar. P. C. J. 172: 13 Ind. Jur. 210: 7 Ind. Dec. (n. s.) 931 (P. C), was also cited by the learned Pleader for the defendants. Though not strictly in point, it illustrates the meaning of the term jurisdiction when the question of jurisdiction or no jurisdiction is raised collaterally. The remedy which the plaintiff had, if he was aggrieved by the Magistrate's order, was to institute a suit in the Civil Court. He did not avail himself of this remedy within the time limited by law.

23. In my opinion the appeal fails and should be dismissed with costs.


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