GOBORDHAN DAS Vs. SURESH CHANDRA MUKHERJI

JUDGEMENT

(1.) This rule must be made absolute. It arises out of a proceeding under Section 145, Criminal P.C., in which Mr. Flack, Subdivisional Magistrate of Dhalbhum, declared the second party to be in possession of the disputed land 23 acres out of plot No. 2 in Khatian No. 2, coming under the pradhani Khewat of mauza Keonla. The first party moved the Sessions Judge in revision, and the learned Sessions Judge did not by any means overstate the case when he observed "It appears that the learned Magistrate did not write the judgment very care, fully, and the language of the judgment in some places supports the argument that there were contradictory findings on the question of possession." For, even before dealing with the evidence, the Sub divisional Magistrate accepted the contention of the second party that the proceedings were bad in law because there was no likelihood of a breach of the peace, but went on to add that he did not think this was an incurable defect in the proceedings. In this he erred both in law and in fact, as has been well shown in detail by the learned Sessions Judge. Mr. Jha, predecessor of Mr. Flack, had ample material before him in the complaint of 19 August 1940 against the second party and the further petition filed by the first party on 22nd for apprehending as he did a breach of the peace and first dealing with the matter under Section 144, Criminal P.C. On 4 October Mr. Jha drew up proceedings under Section 145, in which he spoke of a land dispute which may lead to a breach of the peace; and this was done after hearing the parties, out of whom the first partyad in his application of 2 September, spoken of a serious likelihood of a breach of the peace. Mr. Flack erred in overlooking all this and was also clearly in error in thinking if he really did so that proceedings under Section 145 could be validly initiated or continued without an apprehension of a breach of the peace.

(2.) After dealing with the Evidence adduced by the two parties the learned Magistrate refers to the admitted fact that the second party was in possession-- rightly or wrongly--"at the time of making the order"--it is by no means clear whether he meant the order of 22 August, (which, as will be seen later, would have been correct) or that of 4 September. He then says: Only the question of possession is at issue, and the only point to be decided in this case is whether or no the first party was forcibly and wrongfully dispossessed within two months before the date of the order ( Section 145(4), Proviso, Criminal P.C.). The allegations of the first party that they previously exercised possession appear to be true.

(3.) This would seem to imply an acceptance of the allegation of the first party that on 17 August 1940, that is to say, five days before the proceeding under Section 144 was drawn up, he was forcibly dispossessed by the second party. This allegation was apparently supported among other things by the evidence of a Deputy Magistrate, but the learned Magistrate has not clearly said that he accepted it. Though he considered the allegations of the first party as to previous possession to be true, he refrained from passing an order in his favour because he considered the "crucial point" to be "a question as to the rights of the Raja and the Pradhan," which was plainly contrary to the requirement of; Sub-section (4) that the decision is to be arrived at "without reference to the merits of the claims of any of the parties to a right to possess the subject of dispute," After observing correctly that the question (of right) was properly a matter for the civil Court and that he had already given his reasons for thinking that the proceeding was bad in law, he turned to the Pradhan's right to settle the land in dispute and considered that he had no such right on the documents filed. On his own showing, he should not have dealt with this matter at all; and he has further fallen into error when he speaks of the Pradhan's having the right to settle cultivated land and of neither party producing convincing evidence about the Pradhan's right to settle the land with which we are now concerned. It is not disputed before me that the record of rights which are in Evidence show clearly that the Pradhan and the Pradhan alone had the right to settle the land in question with others for reclamation. Stick a settlement was made by the Pradban on 20 June 1940, and made for purposes of cultivation. The first party has, it is true, built a hut on the land, but this was ancillary to the purpose of cultivation. Because the learned Magistrate thought that the Pradhan had no right to settle the land in question, he proceeded to hold that the first party had not been wrongfully dispossessed. The dispossession was clearly wrongful, but the Magistrate's view to the contrary made it Unnecessary for him to consider specifically whether or not it was also forcible, a point on which the decision of the case must turn.