RADHAKRISHNA PRASAD SAO Vs. LALGOPAL BOSE

JUDGEMENT

(1.) This is an application by the first party for quashing an order starting a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the Code) in respect of 31 acre of land in plot No. 2131 in mahalla Sadipur of Monghyr town. It appears that there was another proceeding under Section 145 of the Code between Subhadra Devi on one side and the petitioner and his father and another on the other side in respect of .1 bigha and .1 katha of land in the same plot and that 31 acre which is the subject matter of the present proceeding, Was included in that 1 bigha and 1 katha of land. In the previous proceeding by order dated the 10th September, 1964, Subhadra Devi was found and declared to be in possession of a house bearing municipal holding No. 552 and the petitioner and others were found and declared to be in possession of the remaining disputed land, The opposite party before this Court are purchasers from Subhadra Devi subsequent to this order dated the 10th September, 1964. It was contended before the learned Magistrate, and has been contended before this Court, that in view of the previous order under Section 145 of the Code, no fresh proceeding could have been started.

(2.) Sub -section (6) of Section 145 of the Code lays down that while deciding the dispute under Section 145 of the Code the Magistrate shall issue an order declaring the party found in possession to be entitled to possession of the subject -matter in dispute until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction. The Magistrate, who decided the previous proceeding under Section 145 of the Code did pass such an order. That proceeding being of a recent date, it was highly improper for the Magistrate to start a fresh proceeding under Section 145 of the Code in respect of what was the subject -matter of dispute in the previous proceeding. This view is supported at least by two single Judge decisions of this Court in the cases of Ramrachya Singh v. Singeshwar Rai A.I.R. 1941 Pat. 607 and Bajit Lal Pathak v. Harakh Singh 1 P.L.T. 557 and a Bench decision of this Court in the case of Ambika Thakur v. Emperor A.I.R. 1939 Pat. 611. In Ramrachya Singh's case it has been observed that where a Magistrate in earlier proceedings under Section 145 has put the parties in exclusive possession of specific portions of the land in dispute he is bound to maintain their possession in a subsequent dispute. The application was directed against an order of the Magistrate under Section 146 of the Code as it then stood attaching the land which was declared to be in possession of Ramrachya Singh in the previous proceeding. Shearer, J. accepted the contention of the petitioner's lawyer that the Magistrate had no jurisdiction to institute a proceeding under Section 145 of the Code at all and held that it was the duty of the court below to maintain Ramrachya Singh's possession of the land declared to be in his possession. His Lordship further observed that if further disturbances were made by the opposite party or any one else to dispossess Ramrachya Singh action to restrain such persons had to be taken under Section 107 of the Code. In Bajit Lal Pathak's case, Adami, J. observed that when a party had been declared to be in possession as a result of a Section 145 proceedings, fresh proceedings under the same Section could not be started against him unless it could be shown that the order had been duly vacated or possession had been amicably surrendered. In Ambika Thakur's case, a Bench of this Court held that possession of the successful party in a proceedings under Section 145 of the Code could not be put an end to by the unsuccessful party by mere violence or surreptitious invasion, and that the party forbidden to disturb possession of the successful party could not be allowed to plead that in spite of the order under Section 145 of the Code, he was in possession or had been able to regain possession by force. In the present case it appears that the dispute arose as far back as April, 1966, within 18 months only of the order of the last proceeding; and if no importance is attached to orders in proceedings under Section 145 of the Code, which had taken place in recent past, there will be no end of criminal litigation and disturbance of peace, because soon after the order the unsuccessful party will start disturbing the possession of the successful party.

(3.) Mr. Indrabhanu Singh appearing for the opposite party however, contended that whenever a Magistrate is satisfied that there is a dispute likely to cause a breach of, the peace, he has got jurisdiction to start a proceeding under Section 145 of the Code and an order drawing up the proceeding in such cases cannot be set aside. So far as this Court is concerned, it has been held in numerous decisions that a dispute under Sub -section (1) of Section 145 of the Code means a bona fide dispute and, proceedings under Section 145 of the Code cannot be started for each and every dispute. Secondly, this Court can, in appropriate cases, interfere with and set aside orders which are improper even if they are with jurisdiction. The proposition that this Court can interfere with erroneous, improper and illegal orders, as conceded by Mr. Indrabhanu Singh. Mr. Singh, however, contended that in the present case the parties to the two proceedings were not the same and, therefore, it was not a case which was covered by the decisions of this Court referred to in the preceding paragraph. It is true that the opposite party were not themselves party to the previous proceeding, but, as observed earlier, they are the purchasers from Subhadra Devi, subsequent to that order and, therefore, they are as good as parties to the previous proceeding. Mr. Singh relied on certain observations in Ambika Thakur's case that fresh proceedings under Section 145 of the Code can be started if a party was not a party to a former proceeding, but as the present opposite parties are the purchasers from a party to the proceeding sub sequent to the date of the order, they shall be deemed to be parties to the previous proceeding. To hold otherwise will mean that the unsuccessful party can circumvent and ignore an order under Section 145 of the Code without obtaining a decree from a competent civil court by transferring his interest in the subject matter after an order under Section 145 of the Code is passed against him. The observations relied on by Mr. Singh in Ambika Thakur's case have got no application at all to the facts of the present case, Mr. Singh also relied on the decision in the case of in the matter of Inderdeo Singh v. Kesho Sing A.I.R. 1938 Pat. I. That decision was considered in Ambika Thakur's case and it was with reference to that decision that the aforesaid observations were made. The facts of Inderdeo Singh's case were also quite different and the rule laid down in that case has got no application to the present case. Another decision on which Mr. Singh placed reliance is a decision of the Calcutta High Court in the case of Haripado Mazumdar v. Dhani Ahamad A.I.R. 1935 Cal. 494. In that case, the Magistrate had refused to initiate a fresh proceeding under Section 145 of the Code, because there was a previous order under the same Section and the High Court set aside that order. The previous order, however, was of the year 1919 and not a recent one. The rule laid down in that case too has got, therefore, no application to the facts of the present case.