BHIKHU LAL Vs. BATIAN AND OTHERS

JUDGEMENT

(1.) This is a reference by the learned Addl. Sessions Judge of Kanpur in a case Under Sec. 145 Code of Criminal Procedure recommending that the order of the learned Magistrate directing the removal of a cattle trough and handing over the site to the Gram Samaj and maintaining the possession of the opposite party over the wall adjoining the said cattle trough, may be set aside and the learned Magistrate may be directed to proceed according to law.

(2.) It appears that one Bhikhu Lal hereinafter called the Petitioner started a proceeding Under Sec. 145 Code of Criminal Procedure against Batian, Ram Asrey, Gaya Prasad alias Gyari, and Chhota hereinafter called the opposite party, with respect to a cattle trough in front of his house in village Girsi in the District of Kanpur. He alleged that the opposite parties had demolished the said trough on 28 -2 -1954, in his absence and when he protested about it on his return the opposite parties threatened him with dire consequences and on account of it there was an apprehension of breach of peace. The property in dispute was attached by the learned Magistrate as he was satisfied that there was a dispute with regard to it which was likely to cause breach of peace. The learned Magistrate instead of deciding the question of possession on the relevant date entered into the question of title with regard to the site of the trough and came to the conclusion that the site belonged to the Gram Samaj, though Gram Samaj was no party to the case, and on the basis of this finding he passed the aforesaid order that the site of the cattle trough should be made over to Gram Samaj after the removal of the cattle trough. He further found that the wall adjoining the cattle trough belonged to the opposite parties and they were entitled to remain in possession of it.

(3.) The learned Sessions Judge has reported that the learned Magistrate in a proceeding Under Sec. 145, Code of Criminal Procedure had only to decide the question of possession with regard to the disputed property between the parties which were before him and that he had no jurisdiction in such a proceeding to enter into the question of title of the disputed land and decide behind the back of the persons who were no party to the proceeding. In my opinion the Magistrate had assumed the jurisdiction which he did not possess Under Sec. 145, CrPC. The dispute before him was as to which of the parties were in possession of the cattle trough and the proper course for him was to decide this question on a consideration of the evidence produced before him. There can be no doubt that he went out of his way to decide the title of Gram Samaj about the site of disputed trough, when Gram Samaj was no party to it and when the question of title was not relevant to the inquiry.