LAWS(PVC)-1940-2-130

SHEOPRASAD SHRIRAM MARWADI Vs. GOVINDRAM HARDIT RAI MARWADI

Decided On February 05, 1940
Sheoprasad Shriram Marwadi Appellant
V/S
Govindram Hardit Rai Marwadi Respondents

JUDGEMENT

(1.) THIS is an application by Sheoprasad, representing party No. 2, against an order under Section 145, Criminal P.C., by which the other party represented by Govindram and Ismail were confirmed in possession of the disputed property, which is an orange garden in village Warud near Wardha. The Additional Sessions Judge has refused to recommend revision: hence application is made to this Court. The findings of the lower Courts are that Govindram took possession of the garden on 4th December 1938 from Prahlad by virtue of a private compromise between him and Prahlad. A decree for foreclosure had been passed against Pralhad in the suit brought originally by Govindram himself. In that suit Sheoprasad applicant was at first joined as defendant, but to avoid technical objections he was transposed as co-plaintiff. Govindram evidently looked upon him a proforma plaintiff and thought he was entitled to ignore him in settling matters with Prahlad. However that may be, it is found that Govindram was in continuous possession of the garden from 4th December 1938 to the date of the preliminary order through his lessee, Sheikh Ismail. Sheoprasad however did not remain idle but applied for execution of the decree on behalf of himself and Govindram and purported to take possession of the garden on 23rd December 1938 on the strength of a Court warrant. As pointed out by the Additional Sessions Judge, that possession would be valid against Pralhad but would not break the previous possession of Govindram. The position then is that Govindram and his lessee Ismail have been found to be in exclusive possession whereas Sheoprasad claims to be entitled to joint possession for himself and Govindram.

(2.) IN argument it is said that the preliminary order of the Magistrate was defective as the grounds for it have not been stated. The Magistrate has relied on the police report which is on the record, and his reference to that constitutes sufficient ground: Emperor v. Munnulal AIR 1935 Nag 78 In a number of cases' too it has been held that even if the source of information had not been recorded that would be an irregularity curable by Section 537, Criminal PC.: Kamal Kutty v. Udayavarma Raja (1913) 36 Mad 275 It is also said that there is nothing in the final order to show that the Court was satisfied that there was a likelihood of a breach of the peace. The Magistrate had already so stated in his preliminary order, and there is nothing in the final order to show that the circumstances or his opinion had altered. Bhuban Chandra v. Nibaran Chandra (1922) 9 AIR Cal 382, to which I am referred, was a case in which the Magistrate had failed to direct his mind to a consideration of the evidence with reference to Sub-section 4 of Section 145, i.e., in the enquiry as to possession. The likelihood of a breach of peace was not discussed in this judgment. 4.In the present case the enquiry about possession has been adequate, and the facts are quite clear, and the findings about actual possession must stand.