SHIVABHAI CHHOTABHAI Vs. RAVJIBHAI MOTIBHAI

JUDGEMENT

(1.) This is a report submitted under sec. 438A Criminal Procedure Code by the District Magistrate Broach recommending that the order dated 27th July 1963 passed by the Sub-Divisional Magistrate Rajpipla in Criminal Case No. 23 of 1963 should be set aside. The report raises an important question of law the question being whether the law requires that a decision recorded by a Magistrate under sub-section (4) of sec. 145 Criminal Procedure Code should or should not be supported by reasons and if it is required to be so supported whether the order is bad on account of the absence of such reasons. Before setting out the rival contentions of the parties it will be convenient to set out briefly the facts which has led up to the report. One Chaturbhai Chhotabhai of the village Umarva of Nandod Taluka District Broach died on 11th December 1962 owning lands situated at villages Umarva and Dhundha within the limits of Nandod Taluka. It is an admitted position that Chaturbhai did not leave behind him surviving any widow or children. Informant Shivabhai Chhotabhai is the natural brother of the deceased Chaturbhai. However according to the opponents who claim to be the cousins and the legal heirs of Chhotabhai Shivabhai was adopted in another family and that therefore he was not Chhotabhais legal heir. Shivabhai resides in the village Surasamor District Baroda. He made an application on 1st June 1963 to the Sub-Divisional Magistrate Rajpipla requesting that officer to attach the lands of Chhotabhai and to entrust them to a receiver alleging that there was a dispute between him and opponents in relation to the possession of the lands which dispute was likely to result in a breach of the peace. On this application being made the Sub-Divisional Magistrate passed a preliminary order under sec. 145 sub-sec. (1) in which he recited that he was satisfied that a dispute likely to cause a breach of the peace existed concerning the lands of Chaturbhai on the grounds mentioned in the information lodged by Shivabhai and called upon the parties concerned to put in written statements of their respective claims as regards the factum of actual possession of Chaturbhais lands and further required them to put in such documents or to adduce evidence by putting affidavits of such persons as they relied upon in support of their claims. The notice was made returnable on 27th of June 1963. On that day opponents filed a written-statement some documents and two affidavits. Informant Shivabhai did not file any written statement or affidavits on 8th July 1963 and the case was adjourned to 20th of July 1963. On that day opponents filed two more affidavits and informant Shivabhai filed his own affidavit and produced some documents. The case was then adjourned to 27th July 1963. The Sub-Divisional Magistrate heard the parties on that day and then passed the impugned order. The order is drawn up in Form No. XXII prescribed by Schedule V of the Code of Criminal Procedure 1898 Amongst other things the order states that the Magistrate decides that opponents were in possession of the lands in dispute. I may say that the above order is not challenged on the ground that there was no formal decision recorded by the Sub-Divisional Magistrate before the impugned order was drawn up. It is assumed that there was such a decision. Informant Shivabhai was aggrieved by the aforesaid order and went in revision to the District Magistrate. The contention of Shivabhai which appealed to the District Magistrate was that the decision recorded by the Sub-Divisional Magistrate was bad in law in the absence of reasons for reaching the decision. In arriving at this conclusion the District Magis trate relied upon the case of Bansi and others v. Hari Singh and others reported in A.I.R. 1956 Allahabad 297. It is on the authority of this case that the present report or reference has been made by the District Magistrate.

(2.) Mr. Sompura the learned Assistant Government Pleader and Mr. C. C. Patel who appears for informant Shivabhai support the reference. Mr. M. M. Patel who appears for the original opponents opposes the reference.

(3.) Before I set out the rival contentions of the parties it will be convenient to summarize the the provisions of sections 145 to 147 which are three out of the four sections which occur in Chapter XII of the Code of Criminal Procedure 1898 The Chapter is headed Disputes as to Immoveable Property.Section 145 enacts that were a Magistrate of the type mentioned therein is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water situated within his jurisdiction he shall make a preliminary order setting out the grounds why he was so satisfied and requiring the parties to attend his Court and to submit their statements documents or to produce affidavits in support of their claims as regards the factum of actual possession of the subject-matter in dispute. Sub-sec. (2) of sec. 145 defines expression land or water. Sub-sec. (3) prescribes the procedure for service of notice. Then cotes sub-section (4). This sub-section requires to be read in full as it is on the construction of this sub-section that ultimately the point of law raised in this reference falls to be decided. That sub-section (4) is as follows:-