KRISHNA CHANDRA DAS Vs. BENARASI JADAV

JUDGEMENT

(1.) THIS application by the sole petitioner under Sections 435 and 439 of the Code of Criminal Procedure (hereinafter referred to as the Code') is directed against the final order dated the 16th of January. 1969 passed by the Magistrate in proceeding under Section 145 of the Code. In the said proceeding the petitioner is the first party whereas the opposite Party is the member of the second party. The dispute relates to the land measuring 2 Bighas 19 dhurs in Plot No. 924 situated in village Mirzapur in the Town Police Station of Monghyr.

(2.) IN order to appreciate the points involved in this application, it will be necessary to state briefly the facts. The aforesaid plot originally belonged to one Jalim Kandar. On the 29th May, 1965 the same was sold to the opposite party for Rs. 5000/- by a registered sale deed. The petitioner owns and possesses the land on three sides of the said disputed plot. On the 27th August 1965 the petitioner deposited the consideration money that is, Rs. 5000/- plus 10 per cent of the said amount as required under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act. 1961 (Bihar Act 12 of 1962)(hereinafter referred to as the Act) along with an application before the Collector of Monghyr. That gave rise to a case No. 63 of 1965. On 31st August 1965 the Additional Collector ordered for giving effect to delivery of possession to the petitioner under Section 16(3)(ii) of the Act. By the said order, the Anchal Adhikari was directed to effect the delivery of possession, and on the 16th October, 1965 the Anchal Adhikari directed the Circle INspector Shri D.P. Sinha to do so. On the 23rd October 1965 the Circle inspector effected the delivery of possession by beat of drum and also submitted his report. IN the meantime the case of the petitioner under the said Act was finally decided on the 27th January, 1966 by the Additional Collector and the opposite party was directed to execute the formal sale deed under the Act. Aggrieved by the said order, the opposite party preferred an appeal before the Commissioner of Bhagalpur. The Commissioner, however, made a reference to this Court which was registered as Civil Reference No. 1 of 1967. IN the said reference the question was with regard to the constitutionality of the Act. The matter was referred to a Full Bench of this Court in the case of Banarsi Yadav v Krishna Chandra Das . IN that case the reference was held to be not competent. However it was held that the Act was intra vires. Now the matter is pending before the Commissioner to be decided on merit as stated by the learned Counsel appearing on behalf of the opposite party. On the 1st November, 1965, as alleged by the petitioner, the opposite party started interfering with the possession of the petitioner. On the 9th November, 1965 the police reported that a proceeding under Section 144 of the Code should be initiated. Accordingly, a proceeding under the said section was drawn up on the 16th November. 1965. On the 13th January, 1966 the same was converted into one under Section 145 of the Code. On behalf of both the parties written statements as well as various documents were filed. On behalf of the first party six affidavits were filed : whereas on behalf of the second party seven affidavits were filed. The learned Magistrate after hearing the parties and perusing the records, passed the impugned order.

(3.) MR. Singh has drawn my attention to Sub-clause (ii) of Clause (3) of Section 16 of the Act which reads as: On such deposit being made the co-sharer or the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under Clause (i) is pending for decision. Provided that where the application is rejected, the co-sharer or the raiyat, as the case may be shall be evicted from the land and possession thereof shall be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten per cent of the purchase money out of the deposit made under Clause (i). He also referred to Section 30 of the Act which provides for appeal against the final order. Thereafter he drew my attention to Section 43 which bars the jurisdiction of the Civil Court. In my opinion, reference to these sections clearly indicates that delivery of possession effected under the said Act deserves the same weight as a delivery effected on the order of a competent Civil Court. In that view of the matter, the learned Magistrate has erred in holding that the so called delivery of possession is not a delivery of possession, ordered by a Civil Court. It is delivery of possession ordered by a Revenue Court. In my opinion, he ought to have given effect to (sic) same consideration, as he would have given with regard to the delivery of possession effected as per orders by a competent Civil Court. What weight has to be given effect to a recent delivery of possession has been pointed out by this Court in the case of Sheonarayan Singh v. Bharath Singh A.I.R. 1954 Pat 182, where Narayan and Ahmad JJ, held that the view that once there had been a delivery of possession by the Civil Court, the Magistrate has no jurisdiction to take action under Section 145 of the Code is no more sustainable. In spite of a recent delivery of possession, the jurisdiction of the Magistrate to interfere under Section 145 of the Code is not ousted but the Magistrate has to give due weight to the recent delivery of possession while disposing of the proceeding under Section 145 of the Code. If the judgment-debtors contend that the peon's report is not correct and that there was no dakhaldehani on the spot, then certainly that is a question which has to be investigated and it is within the province of the Magistrate to investigate this question in the proceeding under Section 145 of the Code. It is another thing that after the delivery of possession is proved the Magistrate has to respect the delivery of possession but so long as the delivery of possession is not proved it is absolutely within the competence of the Magistrate to draw up a proceeding under Section 145 of the Code in the event of an apprehension of a breach of peace, and to investigate whether a dakhaldehani was actually effected on the spot or not. A fraudulent service of process is not an unknown thing in this part of the country, and when the judgment debtors were contending 'that actually there had been no delivery of possession, this question had to be investigated. It is true that in the instant case the opposite party had challenged the correctness of the delivery of possession. Therefore the Magistrate had right to investigate into the matter but certainly he has erred in expressing his view that the delivery of possession effected on the order of the Revenue Court had not the same weight as the one effected as per order of a Civil Court. In that view of the matter, the contention advanced on behalf of the petitioner on 'this point, has to be accepted.