MATHURA SINGH Vs. RAMAKANT MISSIR

JUDGEMENT

(1.) THIS application under Sections 435 and 439 of the Code of Criminal Procedure, hereinafter referred to as 'the Code' has been preferred by five petitioners against the preliminary order dated the 16th April, 1971. passed by the Sub-divisional Magistrate, converting a proceeding under Section 144 into one under Section 145 of the Code.

(2.) IN order to appreciate the point urged by counsel of the parties it will be necessary to state briefly the facts. The petitioners and opposite party nos. 15 to 17 are members of the second party; whereas opposite party nos. 1 to 14 are members of the first party in the said proceeding. The proceeding relates to a piece of land measuring 4 bighas 7 kathas and 9 dhurs bearing various plot numbers detailed in paragraph one of the revision petition filed in this Court, situate in village Chamua, P. S. Sikarpur in the district of Champaran. At one time the said land was kasht land of one Jang Bahadur Singh, grandfather of petitioners 1 to 4. IN the old revisional survey some hundadars got this land recorded as occupancy raiyats. Therefore, Jang Bahadur Singh filed title suit No. 2493 of 1917 against Dev Dutta Tewari and others for declaration of his occupancy right and also for declaring that the khatian entry was incorrect. On the 10th August, 1918. the said suit was decreed in favour of Jang Bahadur Singh and it was declared as prayed by him that the defendants were merely hundadars and the survey entry was incorrect. According to the petitioners, thereafter the hundadars gave up possession and Jang Bahadur continued in possession over the land. On 9th February. 1921, Jang Bahadur executed a registered usufructuary mortgage deed in favour of Mr. Bion. proprietor of INdigo Factory. Chanpatia. for a consideration of Rs. 2500/- Mr. Bion remained in possession thereof till 1943. On the 22nd. February. 1943, he executed a deed of assignment of his right as mortgagee in respect of the mortgaged land in favour of Sukha Devi, w/o Ahodhya Prasad Gupta of Chapra. The family of Ajodhya Prasad Gupta continued in possession of the land till 1956. when one Ram Chandra Upadhaya of village Chamua purchased the rights of Ajodhya's wife in his own name and his relations IN 1959 petitioners 1 to 4 filed title suit No. 113 of 1959 in the court of the Subordinate Judge, Motihari. impleading Ramchandra Upadhya, his family members and others as defendants. The suit was decreed on the 9th June. 1962. The court held that the mortgage subsisted i. e. the relationship of the mortgagor and the mortgagee continued and therefore it decreed the suit of redemption in favour of petitioners 1 to 4. As against that the mortgagees, namely. Ramchandra Upadhya and his family members preferred title appeal No. 93 of 1962, which was also dismissed by the judgment dated the 10th September. 1964. Thereafter they preferred second appeal No. 750 of 1964 in this Court which was also dismissed on the 18th April. 1966. During the pendency of the second appeal the petitioners, who were decree-holders, applied for execution of the decree in Execution case No. 81 of 1964. in which they prayed for delivery, of possession. The judgment-debtors filed an application in the second appeal for stay of delivery of possession, wherein they stated that they had grown sugarcane on the disputed land. This court by order dated the 6th January, 1965, directed that the proceedings in the execution case would be stayed on the condition that the judgment-debtors would deposit a sum of Rs. 6000/- as cash security, which would be withdrawn after dismissal of the second appeal by the petitioners. The second appeal was dismissed on the 18th April, 1966. The petitioners withdrew the said amount and thereafter on the 2nd July, 1966 delivery of possession was given to the petitioners through court. On delivery of possession Rupnath Missir, brother of Ramakant Mis-sir, (opposite party No. 1). Suresh Pan-dey brother of Dharamnath Pandey (opposite Party No. 5). Pujan Tewari, opposite party No. 9 and Kedar Raut, Opposite party No. 12, were the witnesses. During the pendency of the mortgage suit the mortgagees had not paid rent. Therefore, the State of Bihar initiated certificate proceedings against the petitioners and the mortgagees. The petitioners approached the Circle Officer and wanted to clear all the dues, An enquiry was held by the Block Development Officer on the spot and he found the petitioners to be in possession. Hence, the petitioners were allowed to deposit the entire rent which was accepted in the said certificate proceeding by order dated the 29th December. 1970. The further case of the petitioners is that the disputed land is allotted to Harinagar Sugar Mills Ltd. for supply of sugarcane. The petitioners supplied sugarcance. which was grown on the disputed land, to the mill, and their names were also recorded in the mill register. On the 3rd December. 1970, the petitioners filed a petition before the Subdivisional Magistrate that action should be taken against some members of the opposite party and the mortgagees as they were offering threats to the petitioners. The Subdivisional Magistrate directed the police to enquire and report. The Police reported on the 12th December. 1970 against eight persons, namely, opposite party nos. 1 to 4, Ramchandra Upadhya, Baliram. Tarkeshwar Upadhya and another and recommended that a proceeding under Section 107 of the Code should be initiated against them and. they should be bound under Section 117 (3) of the Code. Accordingly, the Sub-divisional Magistrate initiated a proceeding under Section 107 against them which, is still pending with regard to the same subject-matter of dispute before the same Magistrate, who has passed the impugned order. Subsequently, on the 6th February. 1971. Chaukidar Raghu-nath Ahir of the village went to the Police-station and reported that opposite party nos. 1 to 4, Tarkeshwar, Ramchandra, Baliram and others were creating trouble. The Sub-INspector reported on the 7th February, 1971. that a proceeding under Section 144 should be drawn up against both the parties. The INspector also visited and reported on the 16th, February. 1971, for drawing up such a proceeding but he excluded the names of some of the judgment-debtors. The Subdivisional Magistrate accordingly drew up the proceedings against both the parties. After notice was served on the parties they showed cause and filed documents

(3.) MR. Thakur Prasad, learned Counsel appearing on behalf of the petitioners, has assailed the order on the ground that the Subdivisional Magistrate, on the facts and in the circumstances of the case has erred in converting the proceeding under Section 144 into one under Section 145 of the Code. According to him, there was ample evidence on the record to establish the possession of the petitioners over the disputed land. They had in their favour recent delivery of possession given by the Civil Courts, whereas no paper was filed on behalf of the opposite party to establish their possession. The opposite parties were unlawfully disturbing the peaceful possession of the petitioners. They ought to have been bound down in a proceeding under Section 107 of the Code, and in fact for the same subject matter a proceeding is pending before the same Subdivisional Magistrate and in that view of the matter he urged it was not necessary to draw a fresh proceeding under Section 145 of the Code. He submitted that since the Sub-divisional Magistrate has not exercised his discretion judiciously, this Court has ample jurisdiction to quash the impugned order.