DUDH NATH SINGH Vs. SARJU SINGH

JUDGEMENT

(1.) There is a strip of land measuring 165 feet x 35 feet situate in the town of Jharia in front of a building known as Anand Bhawan. It is part and parcel of plots Nos. 1016 and 1017. On a portion of this land stand structures. A proceeding under Section 144 of the Code of Criminal Procedure (hereinafter called the Code) was started some time in the year 1964, Subsequently it was converted into a proceeding under Section 145 of the Code. Dudh Nath Singh, the petitioner in this criminal revision, was the first party in the proceeding which seems to have been started upon the police report and Sarju Singh, the opposite party in this revision, was the second party. In the show cause filed by the petitioner, on 14-2-1965 in the Court of the Sub-divisional Magistrate at Dhan-bad he clearly stated that he is an employee under one Shreemati Kusumlata Agarwala, wife of Om Prakash Agarwala and he looks after, and manages, her property and that the disputed land which was the subject matter of the proceeding belonged to the said lady and she had all along been in peaceful possession of the same by constructing temporary structures for her servants and other men stated in 7th paragraph of her show cause petition. The opposite party claimed himself to be in actual physical possession of the disputed land. The learned Magistrate Shri Ghanshyarn Chandra Prasad Sinha, Magistrate 1st class at Dhanbad has concluded and decided the proceeding under Section 145 of the Code in favour of the opposite party and declared him in possession. The petitioner has come up in revision to this Court.

(2.) In my opinion the proceeding in absence of Shreemati Kusumlata Agarwala is misconceived and suffers from an infirmity of the kind, which would not justify the conclusion of the proceeding in favour of any party. Nowhere the petitioner in any sense claimed to be in actual physical possession of the disputed land. He was, therefore, on the facts and in the circumstances of this case, not a party concerned in the dispute in question within the meaning of Section 145 of the Code. The party concerned on the case of the petitioner, as stated in the order of the learned Magistrate, was Shreemati Kusumlata Agarwala. It is undisputed that Shreemati Kusumlata Agarwala is a resident of Jharia town and is stated to be living in Anand Bhawan, in front of which lies the disputed land. The preliminary proceeding drawn against the petitioner, who was the servant of Shreemati Kusumlata Agarwala was defective and illegal. He was not a person who could be asked to put in his written statement his respective claim as respects the facts of actual possession of the subject of dispute. Supposing, the learned Magistrate or this Court were to come to the conclusion that the property was in actual physical possession of Shreemati Kusumlata Agarwala, the petitioner could not be declared in possession of such property nor could Shreemati Kusumlata Agarwala be so declared as she was not a party to the proceeding. In my opinion, therefore, if an order in the proceeding could not be made in favour of either the petitioner or Shreemati Kusumlata Agarwala, it could not either be made in favour of the opposite party and against the petitioner, which in effect would be against Shreemati Kusumlata Agarwala.

(3.) In support of the view which I have expressed above, I may cite the decision of a Bench of the Calcutta High Court consisting, if I may say so, of very eminent Judges in Behary Lall Trigunait v. Darby, (1894) ILR 21 Cal 915. In that case the order under Section 145 of the Code had been made in favour of Mr. Darby, who had stated in his written statement that the property in question belonged to a coal Company, and that his position was that of a manager of the Company. He had not stated that, he had any interest except as manager, and did not state that he had any independent or in fact any possession, except as representing the Company on whose behalf he was managing the mine. Under such a situation Petheram, C. J. and Rampini, J. set aside the order in favour of Mr. Darby saying- "..... We do not think that the kind of possession is a possession such as is contemplated by this section, or, as I said just now, that the parties interested are properly before us". In material particulars the written statement of the petitioner in the instant case is identical with that of Mr. Darby of the Calcutta case aforesaid. Another Bench of the Calcutta High Court took the same view in Brown v. Prithiraj Mandal, (1898) ILR 25 Cal 423 under similar circumstances. In this case the order was against one Mr. Brown, who in his written statement had stated that he was not the actual proprietor of the land in dispute, but was there merely in the character of the manager for the actual proprietor, one Mr. Ephgrave. The Magistrate had decided the proceeding against Mr. Brown not disputing his statement that he was not claiming actual physical possession for himself. Following the decision in (1894) ILR 21 Cal 915 the proceedings were set aside ab initio.