BABURAM RAJESHWARI PRASAD OJHA Vs. DEO NARAIN SAO

JUDGEMENT

(1.) Criminal Reference No. 111 of 1956 is a reference under Section 438 of the Code of Criminal Procedure by the Additional Sessions Judge, First Court, Gaya. The learned Judge has recommended that the order of the learned Sub-divisional Officer, Jehanabad, dated the 9th March 1956 be set aside and the proceedings under Section 145 of the Code of Criminal Procedure initiated under that order be quashed.

(2.) The relevant facts are these : The lands covered under the proceeding measure 68.37 acres in village Lodipore appertaining to Tauzi No. 6358. These lands were settled with the wife of one Ram Rajeshwari before 1951. In 1951, there was a proceeding under Section 145 of the Code of Criminal Procedure between the petitioners who were the first party and the opposite party who were the second party in the proceeding. On the 30th October, 1952, the learned Magistrate declared the possession of the first party petitioners. It was urged in the court below that, in the said proceeding, the parties were the same as in the present proceeding and the lands were also the same. This statement of fact was not challenged in the court below as incorrect. This order of the Magistrate in favour of the first party petitioners, passed on the 30th October 1952, was upheld by the learned District Magistrate by his order dated the 20th July 1953. On the 30th October 1955, the second party again started creating trouble in the peaceful possession of the first party. On the 12th November 1955, a proceeding under Section 107 of the Code of Criminal Procedure was drawn up against the members of the second, party (opposite party) by the Sub-divisional Officer, Jehanabad. This matter is the subject-matter of Criminal Revision No. 1306 of 1956 and, in view of the Criminal Reference (No. 111 of 1956), further proceedings in the Section 107 matter have been stayed on the ground that simultaneously two proceedings between the same parties in respect of the same land, one under Section 107 and the other under Section 145 of the Code of Criminal Procedure, were illegal and improper.

(3.) On the 30th December 1955, a proceeding under Section 144 of the Code of Criminal Procedure was also drawn up and the same was converted into a proceeding under Section 145 of the Code by the Sub-divisional Officer, Jehanabad, by his order dated the 9th March 1956. It has been laid down in several decisions of this Court e.g., Ambika Thakur v. Emperor, AIR 1939 Pat 611 (A), Raghunandan Pandey v. Kishin Mohan Singh, 10 Pat LT 685: (AIR 1922 Pat 210) (B). Jainath Pati v Ramlakhan Prasacl, 10 Pat LT 689: (AIR 1929 Pat 505) (C), and Syed Mohammad Anzar Hussain v. Parmeshwar Mahto, Cri. Ref. No 24 of 1956, decided by pas, C. J., on 23-4-1956 (Pat) (D), that the . possession of the successful party in a proceeding under Section 145 of the Code of Criminal Procedure cannot be put an end to by the unsuccessful party by mere violence of surreptitious invasion. It has also been laid down in those cases that the object of the Legislature will be frustrated if the party who has, on the finding that he is not in possession, been forbidden to disturb the possession of the successful party until evicted in due course of law. is allowed to interfere with the possession of the successful party and to plead once more that whatever the order might have been, he is still in possession or has been able' to regain possession by force. The principles laid down in those cases clearly show that the preliminary order of the learned Sub-divisional Officer, Jehanabad, initiating a proceeding under Section 145, Code of Criminal Procedure, for the second time between the same parties and over the same subject-matter was not sustainable in law.