RAM NIRANJAN MISSIR Vs. KAMDEO MISSIR

JUDGEMENT

(1.) This application is directed against an order passed by the learned Sub-Divisional Magistrate of Sitamarhi in a proceeding under Section 1.45, Code of Criminal Procedure. The dispute between the parties relates to certain lands situate in village Janipur, police station Pupri, popularly known as Kariasi Chowr. The lands originally belonged to the Manpur Estate. The petitioners who were first party to the proceeding, claimed possession over the lands by virtue of a Manhunda settlement made with them respectively near about the year 1932 of which they continued to be in possession thereafter. The second party stated that they were duly in possession by virtue of registered sale deeds executed in their' favour in 1952 by Choudhary Harinath Singh who, in his turn, came into posses sion of the lands by virtue of a settlement in his favour by the President of the Kayasth Pathshala Trust under the supervision of the Allahabad High Court. They stated further that the petitioners were anxious to have these lands and having failed in their attempt set up a false claim under the insti gation of certain unsocial elements. The parties led evidence in support of their respective cases and the learned Magistrate, on a consideration of the evidence, found the second party to be in pos session and, accordingly, passed orders in their favour.

(2.) The petitioners moved the learned Sessions Judge of Muzaffarpur for reference of the case to the High Court for setting aside the order passed by the learned Sub-divisional Magistrate, but their prayer was refused. Accordingly, the present petition has been preferred for setting aside the learned Magistrate's order.

(3.) Learned counsel for the petitioners has urged as his main point that the proceedings drawn up by the learned Magistrate referred specifically to plots Nos. 2744, 2749, 2750, 2751 and 2752 (twice over) in village Janipur which would measure about 20 bighas. The actual order passed by the learned Magistrate, however, covers as many as 15 plots more, being plots Nos. 2909, 2910, 2962, 2959, 2923, 2926, 2960, 2701/5063, 2735, 2737, 2738, 2743. 2747, 2748 and 2745. It is contended that the order having been passed to cover a much larger area than what was included in the proceeding, the entire order is bad in law and must be set aside. Learned counsel for the opposite party, however, has contended in this connection that the entire order must be upheld as valid because, although there was some omission in the proceeding actually drawn up, in fact, there was no misapprenension in the minds of the parties as to what they were trying to have enquired into by the learned Magistrate. The police report, which gave rise in the first instance to the proceeding, was made on 8-7-1952, in which the plot numbers mentioned were 252, 2750, 2751, 2752, 2749, 2744 and a lot of others in Kariasi Chowr measuring 36 bighas. On foot of this report, a proceeding under Section 107, Code of Criminal Pro- cedure, was started against both the parties on 15-7-1952. That proceeding was however, dropped and on 7-1-1953, a proceeding under Section 144, Code of Criminal Procedure, was started. That was, however converted into a proceeding under Section 145 of the Code as the matter related to a land dispute between the parties. Preliminary order was passed on 24-2-1953, and the lands were attached. On 14-3-1953, a proceeding was drawn up which through oversight mentioned only the above five plots repeating 2752 twice over, which would make it six plots. Both the parties, however, knew the true nature of the dispute and accordingly in the written statement filed by them they referred to all the plots which were covered by the order. The result, therefore, is that the police report referred to the entire area and although all the plots had not been mentioned therein all the lands were attached; the parties knew what was attached and the order was accordingly passed in Tespect of all the disputed plots. No prejudice therefore, can be shown to have been caused to the petitioners for the omission to mention all the plots specifically in the proceeding. The entire order must, therefore, be affirmed as valid and it cannot be interfered with.