JANG BAHADUR SINGH Vs. NAZIMUL HAQUE

JUDGEMENT

(1.) The petitioner, Jang Bahadur Singh, has moved this Court for quashing a proceeding under Section 145(4), Criminal P.C., in respect of certain lands started by Mr. A.J. Khan, Subdivisional Magistrate, Dinapur. The disputed lands have been specifically described in the petition to this Court in a schedule attached to para. 1, the total area whereof is 38 bighas=23.72 acres. All these lands excepting the lands consisting in Plot No. 5740 with an area of 44 acre and plot No. 5242 with an area of 72 acre, the total being 1.16 acres were the subject-matter of certain litigations in a revenue Court. At one stage of that litigation an order for delivery of possession in favour of the plaintiffs predecessors-in-interest was passed in 1940 and in the words of the Subordinate Judge, Who disposed of a title suit as between the parties in respect of these lands in dispute the defendants conceded in their depositions that Mt. Maran Kuar, plaintiffs predecessor-in-interest, secured actual delivery of possession and that the objections of the ijaradars and of the alleged settlement-holders were overruled.

(2.) There having been a further proceeding for re-delivery of possession to the defendants in the revenue Courts, the present petitioner, Jang Bahadur, filed a title suit for declaration of title, for a further declaration that the proceedings in the revenue Courts in so far as they affected the plaintiffs title and possession were void and for confirmation of possession, or, in the alternative for recovery of possession. The plaintiffs succeeded in the suit. The Subordinate Judge who tried the suit declared their title, the void character of the impugned revenue Courts proceedings and except in respect of Plot Nos. 5740 and 5242 held that the order for re-delivery of possession in favour of defendant 1 of their suit was perfectly illegal, and that everything was done surreptitiously, and that there was the positive evidence of the witnesses examined on behalf of the plaintiffs that the plaintiffs have been continuing in possession thereof. With regard to plot Nos. 5740 and 5242, he found as follows: When these plots do not appear to have been sold, there can be no difficulty in the way of the plaintiffs in the recovery of possession of these plots. These two plots are referred to in the Subordinate Judge's judgment as having been described in Schedule D. The ordering portion of the judgment of the learned Subordinate Judge in the title suit is quoted hereinbelow for facility of reference: In the result, the suit is decreed on contest with costs. Pleader's fee at 10 per cent. The title of the plaintiffs over lands covered by Schedules B and C(1) to C(4) is hereby declared and their possession over the same is confirmed. The orders passed by the learned Commissioner and the Hon ble Board of Revenue against the decision of the Bakasht Restoration Officer, are declared to be illegal, ultra vires and without jurisdiction and similarly the order passed by the learned S.D.O. granting delivery of possession to defendant 1 and all subsequent orders of the higher revenue authorities in connection thereto, are also declared to be absolutely ultra vires and without jurisdiction. The decree of the Subordinate Judge in terms aforesaid was passed on 26-1-1946. The learned Subdivisional Magistrate's order directing a proceeding under Section 145, Criminal P.C., to be drawn in respect of the lands in dispute was passed on 20-3-1946, that is to say, within less than two months of the civil Court decree. It may be mentioned here, however, that the decree of the civil Court is under appeal to this Court. There is no controversy that the members of the opposite party are bound, subject to the result of the pending appeal, by the above decree, inasmuch as opposite party 1, 6, 9 and 10 were party defendants to the suit and are parties to the appeal and the other opposite party 2, 3, 4, 5, 7 and 8 are servants and creatures of the opposite party.

(3.) The contention advanced on behalf of the petitioner is that inasmuch as the dispute between the parties in relation to the disputed lands has been decided in his favour and the decision declares and confirms his subsisting possession thereto so recently as 26 January last, the proceeding under Section 145 for investigation into the present possession of the identical parties over the self same lands is unwarranted by law and that it is especially so as there is no allegation of any disturbance of possession subsequent to a decree. It must be made clear at this stage that this contention does not apply to plot Nos. 5740 and 5240 relating to which the learned Subordinate Judge declares possession to be with the defendants and holds that the plaintiffs will be entitled to relief of recovery of possession. The order of the Magistrate drawing up a proceeding in so far as it relates to these two plots will be proceeded with and will not be affected by what I am going to say herein below.