ELIMUDDIN SARKAR Vs. UMED ALI BEPARI

JUDGEMENT

(1.) This is a Reference under Section 438, Criminal P. C., made by the Sessions Judge of Dacca. It relates to an order under Section 145 passed by the Sub-Divisional Magistrate of Manikgunj on 7 December 1934 in respect of lands comprising Sheet No. 1 of the Cadastral Survey of Mouza Purulia. In 1919 the present applicant's mother-in-law Fakrunnessa Chaudhurany, who was the predecessor-in-interest of the applicant's son who is the present malik of Touzi No. 97 of the Pabna Collectorate to which the disputed property belonged, obtained an order under Section 145, Criminal P. C., declaring the possession of herself and her tenants to the entire area covered by Sheet No. 1 of Mouza Purulia. This order was the result of proceedings taken in respect of a dispute between her and her tenants on the one hand and U.N. Roy, the Malik of the property covered by the adjoining Sheet No. 2 of Mouza Purulia, on the other; Elimuddin, the principal member of the first party in the present proceedings was a party to that case. That order came before this Court in Criminal Revision No. 985 of 1919 and was upheld. In 1921 the property belonging to U.N. Roy was purchased by Hara Sundar Majumdar, and as a result of further trouble between his tenants and the tenants of the present applicant's party, a second proceeding under Section 145, Criminal P. C., was drawn up in 1922. This matter came before the High Court, and in Criminal Revision No. 468 of 1922 reported in Aran Sardar V/s. Hara Sundar Mazamdar 1923 Cal 95 their Lordships, B.B. Ghose and Chotzner, JJ. quashed the proceedings on the ground that the original order of 1919 was binding on the parties and that fresh proceedings were improper. They held that it was clearly the duty of the Magistrate to see that the possession of the first party adjudged under the previous order was not disturbed.

(2.) In 1927 further trouble arose and the present applicant's party secured an order under Section 144, Criminal P. C , in respect of the same property. Subsequently, the boundary of Sheet No. 1 was demarcated with pegs in a proceeding under the Survey Act of 1875 and this demarcation was confirmed by the Collector of Dacca in 1928. There was no appeal against this order. In 1933 there was further disturbance, with which it is not necessary to deal in this judgment, and in May 1934 there was a further disturbance, as a result of which the Sub- Divisional Officer of Manikgunj passed a further order under Section 144 in favour of the present applicant's party and in respect of the same property. This order came before the High Court and was dealt with by Guha and Bartley, JJ. in Criminal Revision No. 693 of Harpad Mazumdar V/s. Dhani Ahmad Sardar 1935 Cal 494. Their Lordships held that the original order of 1919 was not binding in the sense that fresh proceedings under Section 145 were not barred. Accordingly, they quashed the proceedings under Section 144. The present applicant was not a party to those proceedings. In the meantime, the applicant's party had instituted cases of rioting, trespass and theft against the members of the opposite party who were convicted. One of these cases was dealt with by this Court in Criminal Revision No. 1191 of 1934 when the conviction was upheld on the ground that the applicant's party was secured by the order of 1919 in their possession of the disputed property, that possession not having been challenged in any civil Court. The present order was passed against the applicant Hamid and 38 others. The learned Sessions Judge recommends that this order of the Sub-divisional Officer of Manikgunj should be set aside. The grounds given for the opinion expressed by the Sessions Judge are that the property and the parties in the present proceedings and in the proceedings in 1919 are identical, that is to say, the parties in the present proceedings are either the same or they derive their interest from persons who were parties to the 1919 proceedings.

(3.) The learned Judge then proceeds in his letter of reference to refer to what he considers to be conflicting decisions of this Court, namely the decision reported in Aran Sardar V/s. Hara Sundar Mazamdar 1923 Cal 95 and the decision of Guha and Bartley, JJ., to which I have already referred. In my opinion, it is not clear that these decisions are in conflict. The first decision proceeded upon the assumption that the property and the parties concerned were the same. But the decision of Guha and Bartley, JJ. so far as we have been able to ascertain both from the record and the remarks addressed to us by the learned advocates, proceeded upon the assumption that the parties, at any rate, were not the same and, therefore, the order of 1919 could not be a bar to the proceedings in 1934 between different parties. Mr. N.K. Basu, in his argument before us, has proceeded upon the same lines and sought to show that both the property and the parties are different, and that they are different in the present proceedings from the property and the parties with which the proceedings of 1919 were concerned. He has failed to show this distinction by means of any document upon the record. The learned Judge has stated in his letter of reference that both sets of proceedings concern the same property and are substantially between the same parties. The order of 1919 was passed against the party of U.N. Roy. His interest passed in 1921 to Hara Sundar, the present owner of the property covered by sheet No. 2, and the present landlord of the tenants of the opposite party. This appears from the record. Mr. Basu has drawn our attention to the petition filed in Criminal Revision No. 693 of Harpad Mazumdar V/s. Dhani Ahmad Sardar 1935 Cal 494 in which it is stated that the Official Receiver of this Court was appointed Receiver of U.N. Roy's property and was at first made a party to the 1919 proceedings. This was without the leave of the Court, and this leave not having been obtained, the Receiver made an application to the Magistrate in the Section 145 proceedings for time in order that leave might be obtained. The petition, however, was rejected and the Magistrate passed a final order declaring possession of the first party. Subsequently, the Official Receiver moved the High Court in Criminal Revision No. 985 of 1919 decided on 13 January 1920. The High Court discharged the Rule, but observed as follows: It has been pointed out to us that the order may be construed as affecting the rights of the Receiver. In that view we think that as no formal leave from the High Court was obtained to add him as a party, his name may be deleted from the proceedings. The order stands good otherwise.