KALI MOHAN DAS Vs. KALI MOHAN DAS

JUDGEMENT

(1.) THIS Rule is directed against order passed by the learned Executive Magistrate Under Section 145 of the Cr.PC on 8 -6 -1977 rejecting an application by the petitioner for making a reference Under Section 21(3) of the West Bengal Land Reforms Act. The petitioner who is the second party in the proceeding before the learned Magistrate in M. P. Case No. 43 of 1976 contended that since a question has been raised toy the second party regarding his status as a bargadar before the learned Magistrate, the learned Magistrate should refer the matter under the provision of the West Bengal Land Reforms Act for a decision as to that status of the petitioner Under Section 21(3) of the West Bengal Land Reforms Act. The learned Magistrate came to the conclusion that for the purpose of deciding the present proceeding before him he is not deciding the question of bargadarship of the opposite party but he has to decide as to who is in immediate possession of the disputed property.

(2.) THE learned Advocate for the petitioner has contended that the order passed by the learned Magistrate is wrong inasmuch as in his written statement the second party before the learned Magistrate has contended that he is a bargadar naturally (.sic) if the question of possession has also to decide whether he is possessing the disputed property as a bargadar or not. In this connection, the learned Advocate has referred me to a decision of the Land Reforms Officer in a proceeding Under Section 18(1)(a) of the West Bengal Land Reforms Act between the same parties. Therein the Land Reforms Officer has decided and has come to a finding that the petitioner is a bargadar under the opposite party. This iudg -ment was not shown to the learned Magistrate nor was the stage reached for putting in that judgment. In my view, the petitioner should have waited until the ev'dence is gone into before rushing to this Court for setting aside the proceeding before the learned Magistrate, on the ground that it is a fit case that a reference should be made Under Section 21(3) of the West Bengal Land Reforms Act. He has also referred me to several decisions of this Court. The first, being, a Full Bench decision reported in (1962) 66 CWN 947. There the dispute was between the iotedar and the bargadar and the question was regarding the share or quantum of paddy to be delivered to the jotedar, of the produce of land. There it has been held that Section 145, Cr.PC ought not to have been invoked in such a case. Disputes between persons who claim to be jotedars and the. persons who claim to be bargadars, really have to be filed before the appropriate Bhagchas Officer who has the jurisdiction under the Land Reforms Act to decide such question. There was no dispute regarding the status of the bargadar in that proceeding. Bargadar's possession was admitted and hence that case has no application to the facts of the present case. In this case, the status of the bargadar is disputed and his possession is not admitted by the first party in the proceeding Under Section 145, Cr.PC The next case that has been cited is reported in (1974) 78 CWN 576. In that case an ap - plication was made by the opposite party alleging that he was a bargadar in respect of a certain plot of land and claiming his share of the produce of the plot of land. A case was started Under Section 144 of the Criminal P. C. by him but the learned Magistrate without drawing up any proceeding sent the petition for inquiry and report to the C. I. L. R. The report of the C. I. L. R. was to the effect that though the applicant opposite party was a cultivator in respect of the plot of land, he was not able to cultivate the same in the current year as the owner petitioner had forcibly ousted him from the land when he was ploughing the said plot of land. The cultivation was completed by the owner petitioner after ousting the opposite party from the land. The Magistrate ultimately made an order that the entire produce of the land be shared between the owner -petitioner and the opposite party bargadar on 50: 50 basis. It was held that the impugned order could not be passed Under Section 144 of the Criminal P. C. and was not sustainable. The proper course would have been to proceed under the West Bengal Land Reforms Act, 1955. The order of the Magistrate was not in conformance with the procedure established bv law and was accordingly set aside. It will be seen in that case the proceeding Under Section 144 was not drawn up and yet the learned Magistrate made an order for distribution of the produce half and half between the parties. He had no -jurisdiction to do that and accordingly that order was set aside. The learned Advocate for the opposite party has referred me to a case reported in (1977) 4 Cal HC (N) 193. There it has been held by Anil Kumar Sen and A. P. Bhattacharya. JJ. In a proceeding Under Section 145 of the Code at the instance of the petitioner who claimed to be a bargadar of the land in dispute, on the application of the opposite party, the Magistrate appointed a receiver for cultivation of the land in dispute. In that case order was impugned as being without jurisdiction and further it was urged that the matter should be referred for determination of the competent authority under the Land Reforms Act Under Section 21(3). That argument was repelled and their Lordships held that the learned Magistrate in a proceeding Under Section 145, Cr.PC is called upon to decide the question of actual Possession of the subject of dispute and in doing so he is not to refer to the merits or the claims of any of the parties to the proceeding as to his right to possess the subject of dispute but the question is one of actual possession, irrespective of right to possess. Even the possession of a trespasser may be declared in such a proceeding. The question whether any of the parties has a right to possess or for the matter of that the question whether the first party was a bargadar or not does not arise for decision in a proceeding Under Section 145 of the Code. The Magistrate (has no jurisdiction to decide that question in such a proceeding and as such Section 21(3) in terms cannot be attracted to the proceeding Under Section 145 of the Criminal P. C.

(3.) IN view of what I have stated above, I affirm the order passed by the learned Magistrate and discharge the Rule.