ASES KUMAR MISRA Vs. KISSORI MOHAN SARKAR

JUDGEMENT

(1.) THIS Rule was granted at the instance of the 2nd party on the ground that a certain order made by the Sub-Divisional officer on the 14 July 1923, was without jurisdiction. Now the facts are shortly as follows. Certain proceedings under Section 145 were instituted and those proceedings terminated by an order of the Magistrate made on the 29 March 1922, whereby the Magistrate attached the property which was in dispute and which was an underground colliery together with certain huts and workings on the surface of the land. Now the Magistrate in his judgment found that the first party were in possession, but he found that the possession of the first party had only been probably for a few days or at they most for a few weeks. He then finds that the first party were in possession on the 5 July 1921. and he comes to the conclusion that their possession at the earliest did not begin before the 1 of May, and probably not even so early. Then he says that he is not satisfied, having regard to the nature of the possession that this was rightful possession and that it might well be that the first party had only obtained possession of the land a few days before. Taking this view he states that he is unable to arrive at a conclusion whether possession was with the first party or with the second party and accordingly he made the order referred to above under Section 146 Sub- section 1 attaching the property in dispute. THIS order he made on the 29 March 1922. Subsequently there was a decision in case No. 46 of 1919 by the Subordinate Judge which was arrived at on the 27 March 1923. As I understand the position, the decision of the Subordinate Judge only related to a money claim put forward by some person against some of the members of the second party. Shortly put what was claimed in that suit was to recover from some membera of the second party a certain sum of money because certain rights in respect of the colliery purported to be demised by some of the second party to the plaintiff in that suit had tailed. The learned Subordinate Judge dismissed the claim of the plaintiff in that suit for money; but in deciding the 6 issue in that suit he came to a conclusion adverse to the rights of the members of the second party who were before him with regard to the ownership of the colliery which, or some part thereof, is the subject-matter of dispute in the 145 proceedings. In this state of affair an application was made by the first party to the Sub- divisional Officer for withdrawal of the attachment that had been effected on the 29 March 1922, and for a declaration of possession with the first party based on the decision of the Subordinate Judge in suit No. 46 of 1919. The question, there-fore, is whether time was jurisdiction in the Sub-divisional Officer to make the order which he did on the 14 July 1923, withdrawing the attachment and giving possession to the first party. We think that he had jurisdiction to make that order because Section 146 Sub-section 1 contemplates that an attachment which has been made under the provisions of that section may be determined after a competent Court has determined the rights of the parties thereto. The view of the Sub- divisional Officer was that the decision of the Subordinate Judge of the 27 March 1923, was a decision of a competent Court which had deter-mined the rights of the parties. Consequently, think that he had jurisdiction to deal with the matter as he has done having regard to this decision which I have mentioned. As to whether the decision of the Subordinate Judge in suit No. 46 of 1919 was a decision which really determined the rights of the parties is another matter. It has been urged before us by the learned vakil for the second party that the subject-matter of that suit was different to the subject-matter of 145 proceedings; that the suit was merely a money suit; that the suit in fact was dismissed : and that the decision of the 6 issue with regard to the title to the colliery was merely in the nature of an obiter. Having considered the arguments that have been urged with regard to that decision we do not think it necessary for us to interfere with the order made by the Sub-Divisional Officer. It is true that the first party here, were not parties in suit No. 46 of 1919. It is also true that all the members of the second party were not before the Court in those proceedings and accordingly that decision will not be binding certainly as regards those members of the second party as were not before the Court in that suit. And having regard to the nature of the claim that was made in the suit the decision would probably not operate as resjudicata on the other members of the second party who were before the Court in suit No. 46 of 1919. But they are matters to be, considered elsewhere. We think that it was open to the Sub-Divisional Officer to arrive at the conclusion at which he did with regard to that decision in suit No. 46 of 1919 for the purposes of his decision on Section 145 proceedings.

(2.) THIS being so the Rule is discharged as we hold that there was jurisdiction in the Sub- Divisional Officer to make the order which he did.