MURALI PATEL Vs. PURUSOTTAM BHATI

JUDGEMENT

(1.) FIRST party is the petitioner. Opposite Party No. 1 is the husband of Opposite party No. 2. The case of the petitioner is that he purchased the disputed land from purusottam Bhati by a registered sale deed on 9-6-1901 and got delivery of possession. Ever since then he was in possession. As the opposite parties created disturbance in his possession, he filed an application before the Magistrate asking for an order under Section 144, Cr. P. C. against the opposite parties. On 8-81963 an order under Section 144 was passed restraining the opposite parties from interference with the possession of the petitioner. On 12-11-1963 the learned magistrate heard arguments of the advocate for both parties and passed the following order. As this relates to a land dispute and the parties are disputing over possession on the same land for the last two years it is desirable that a finding can be given in case this is converted into a proceeding under Section 145, Cr. P. C. The lands be kept under attachment and receiver be appointed. Parties to file written statements, affidavits etc. in support of their respective claims to possession by 29-11-1983. Subsequently the parties filed their written statements, affidavits and documents. The learned Magistrate ultimately passed the following order : i therefore find that the members of the 2nd party were in actual possession of the land throughout and at the data of order and therefore order that She land be restored to the 2nd party, if 1st party is aggrieved, he should take recourse in a competent Court of law to establish his right. The property attached should be delivered to the 1st party. In the last sentence the learned Magistrate inadvertently used '1st' for '2nd'. The revision is directed against this order dated 27-5-1964.

(2.) MR. Rath raised three contentions :--

(3.) SECTION 145 (1) lays down : whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class 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 or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate and to put in written statements of 'their respective claims as respects the facts of actual possession of the subject of dispute and further requiring them to nut in such documents or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims. It is well settled that a dispute concerning any land or water or boundaries thereof comes within the jurisdiction of the Civil Court which alone is competent to decide such matters. But if such a dispute is likely to cause a breach of the peace, then a magistrate gets jurisdiction under Section 145 (1) Cr. P. C. The Statute lays down that the Magistrate must, however be satisfied from police report or other information that a dispute likely to cause a breach of the peace. exists. The existence of the dispute likely to cause a breach of the peace is therefore a preliminary prerequisite to the jurisdiction of the Magistrate. The second essential ingredient is that the Magistrate shall make an order in writing stating the grounds of his being so satisfied. In the order dated 12-11-1963, already quoted, the Magistrate does not at all make any reference to the element that a particular dispute was likely to cause a breach of the peace and necessarily he does not state the grounds of his satisfaction about the existence of such dispute. Due to the absence of the aforesaid two elements, Mr. Rath contends that the entire proceeding is without jurisdiction. Reliance has been placed on Dirgopal Singh v. Rambrich Singh, A I R 1951 Pat 412, Kshetromoni v. Raghunath Patnaik, AIR 1953 Orissa 255 and pakamaraja Naicker v. Chidambara Nadar, (S) A I R 1955 Mad 229. All these cases are clearly distinguishable. In AIR 1951 Pat 412 the Magistrate nowhere recorded that he was satisfied of the existence of a dispute likely to occasion breach of the peace. He did not state so in the notice issued to the parties nor recorded this in the order sheet and his final order made no mention of the existence of a dispute likely to occasion breach of the peace. His Lordship quashed the proceeding as there was no indication in that case that either of the parties raised this question before the Magistrate, or at any stage of the proceeding the Magistrate applied his mind to this question. In AIR 1953 Orissa 255, Mohapatra, J. merely dealt with a case where police report forming the basis of the Magistrate's order was more than 13 months before the order was passed. ' (S) AIR 1955 Mad 229 related to a case where no preliminary order was at all passed under Section 145 (1), Cr. P. C. His Lordship noticed the conflict of the authority and preferred to follow some decisions of that court as the Magistrate had to determine who was in possession on a particular date and that there was no date in that case when the order under Section 145 (1)was passed. None of these decisions dealt with a case where otherwise from the materials on record it would appear that the Magistrate was satisfied regarding the existence of a 'likelihood of a breach of the peace on the date of the preliminary order, but yet had not clearly so recorded in his order or not stated the reasons in writing.