GAJU PAHAN Vs. RIJHU TELI

JUDGEMENT

(1.) THIS application by the first party is directed against a final order passed in a proceeding under Section 145 of the Code of Criminal Procedure.

(2.) THE first party claims to be in possession of the disputed lands as a lessee of one Madan Mohan Lal Sao. On the other hand, the second party claims to be in possession of those lands as lessees of Udit Bhan Singh. It appears that Madan Mohan Lal Sao instituted Title Suit No. 21 of 1961 against Udit Bhan Singh, asking for declaration of title and confirmation of possession. THE suit was decreed on the 14th June, 1963. THE first party brought this fact to the notice of the learned Magistrate; but the learned Magistrate has observed as follows: THE learned lawyer for the IInd party has contended that the proceeding should be decided on merit because the judgment of the title suit does not bind the hands of a criminal Court deciding a proceeding under Section 145, Criminal P. C., nor it is conclusive so far the present proceedings are concerned. He has further submitted that he has preferred an appeal against the judgment in title suit and the said appeal is pending....In view of the fact stated above, it is necessary that the present proceeding should be decided on merit. He has, therefore, completely overlooked the judgment passed in the title suit. A declaration of possession by a Magistrate in a proceeding under Section 145 of the Code of Criminal Procedure is always subject to the decision of the civil Court. This is perfectly clear from Sub-Section(6) of Section 145 because the Magistrate can only declare the party in possession to be entitled to possession of the disputed lands "until evicted therefrom in due course of law." It is true that, if a judgment passed in a civil suit is not inter parties or if the parties to the proceeding under Section 145 or, at least, one of the parties, claims independently of the parties to the civil suit, the judgment passed in the civil suit may not be binding. If, however, the parties to a proceeding under Section 145 have themselves been Parties to a civil suit in which the judgment has been delivered, or if they are representatives of persons who were parties in the civil suit, the judgment must necessarily be considered by the learned Magistrate.

(3.) IN the circumstances mentioned above, the application is allowed t and the learned Magistrate's judgment is set aside. The case is remanded to him. He should give an opportunity to the parties to be heard, and, therefore, he should rewrite a fresh judgment in accordance with law, keeping in view the observations which I have made above.