PENUMATSA RANGA RAZU OF VEMPA Vs. SREE RAJAH KANDREGULA SRINIVASA JAGANNADHA RAO PANTULU BAHADUR GARU, ZAMINDAR, GAZZARAM AND KALIPATNAM ESTATES

JUDGEMENT

(1.) These revision cases arise out of an order passed by the Joint Magistrate of Narsapur Division on the 17 June, 1937, under Section 145 of the Criminal Procedure Code, regarding a dispute about a large extent of land which was till recently jungle or waste but has since been included in an irrigation project and has consequently increased in value. The dispute was between the Zamindar of Gazzavaram and Kalipatnam Estates and Mr. Addepalli Venkataraman, the first respondent in the Court below, who describes himself as a Barrister of the Inns of Court at Dublin and an Advocate of this Court and others who claim under the first respondent. The first respondent himself claimed the land in dispute under a document which according to him is a perpetual lease executed in his favour by the petitioner Zamindar in 1923. The Magistrate found that actual possession was with the petitioner, and passed orders declaring that the petitioner is in possession and forbidding all disturbance of such possession by the other party. The first respondent is the petitioner in Criminal Revision Case No. 383 of 1937 and the third respondent who claims under him as a tenant is the petitioner in Criminal Revision Case No. 382 of 1937. The Criminal Miscellaneous Petition is by the first respondent objecting to certain remarks made against him in the order of the Magistrate and praying that they should be expunged.

(2.) The only point which has been pressed in the revision petition is that the Magistrate acted irregularly and in fact, in disregard of the law, in not allowing the first respondent to adduce all the evidence which he wanted to adduce in support of his claim. The third respondent also raises the same point though it is not his case that he was not permitted to adduce all the evidence which he wanted to adduce; in other respects, there is no attack on the Magistrate's jurisdiction or on the procedure followed by him during the enquiry. The learned Magistrate after examining the first respondent found that the first respondent was admittedly not in possession of the land in dispute and therefore did not allow him to adduce any further evidence and thereby protract the enquiry needlessly. If, as a matter of fact, the first respondent was admittedly not in possession of the land in dispute or any portion thereof, it cannot be said that the refusal to take further evidence on his behalf has resulted in any failure of justice, because, when the claimant himself has admittedly no case, any number of witnesses cannot improve upon it. It is however argued by Mr. Grant that the admission made by the first respondent has been misunderstood by the learned Magistrate, and that this mis- understanding also shared by the first respondent himself when he made the admission; in other words, according to Mr. Grant, when the first respondent admitted that he was not in possession for some time before the preliminary order of the Magistrate, what he meant was that he was not himself in actual physical possession and that he did not intend to abandon his claim to actual possession based on the actual possession which, according to him, was with his tenants. Whether such ignorance of law on the part of the first respondent, who is a Barrister-at law, can be said to be excusable is doubtful. The evidence of the first respondent shows that a good portion of the land had been sold by him, and he could not have reasonably believed that the possession of his vendee was his possession even in the eye of the law. I think, however, that the first respondent really meant only to admit that he had no actual possession of the land in dispute, and that he did not intend to give up or abandon the claims of those who claimed under him. But that does not mean that he had any real claim to actual possession himself. The words "actual possession" found in Section 145 of the Criminal Procedure Code have been considered in several cases and one of such cases is Agni Kumar Das V/s. Mantazaddin (1928) I.L.R. 56 Cal. 290 (F.B.) which was decided by a Full Bench of the Calcutta High Court in 1928. It was there held that the words "actual possession" mean actual physical possession, even though wrongful. In Ambar Ali V/s. Piran Ali (1927) I.L.R. 55 Cal. 826 (F.B.), it is realistically described as the possession of a man who has his feet on the land, who is showing it and so on. The words are in my opinion sufficiently clear and they can only mean possession in fact as distinguished from possession implied by law or constructive possession. It has been argued that the tenant's actual possession is the landlord's actual possession, but it is conceded that if the dispute about the land is between a landlord and his tenant, this doctrine cannot possibly be applied. The exception has admittedly to be made in the case of a dispute between co- owners inter se. I am unable to accept the view that the legislature meant by the words actual possession one thing in a certain set of cases and another thing in another set of cases; that, in other words, in disputes between landlords and tenants or between co-owners they mean one thing, whereas in disputes between other persons, they mean another. The meaning of the words must be the same in all cases. The question is whether the first respondent can be said to have had actual possession on the date of the preliminary order. The only possession which he claimed was the possession of his tenants, that is to say, constructive possession as distinguished from actual possession. The tenants were, moreover, parties themselves and they had every opportunity to adduce evidence in support of their claim of actual possession. In these circumstances, it is impossible to say that there has been any failure of justice by reason of the refusal of the Magistrate to allow the first respondent to adduce further evidence. In fact it would appear that a good many of the witnesses cited by the first respondent were actually examined on behalf of the third respondent and in this way there has been really no prejudice to the first respondent. Mr. K. Section Jayarama Aiyar has brought to my notice the case Samir Sheikh V/s. Jahed Sheikh (1906) 3 C.L.J. 478 in which there was a similar refusal by the Magistrate to examine certain witnesses produced by the petitioner in support of his claim. A Bench of the Calcutta High Court held that as the petitioner's case had broken down after the examination of the petitioner and his chief witness, the Magistrate was entitled to exercise his discretion and refuse to allow further witnesses to be examined on the side of the petitioner. The present case is really a stronger case, because there was not merely the breaking down of the case, so to speak, but the actual giving up of his case by the claimant himself, namely, the first respondent. He chose to rest his case entirely on the actual possession of his tenants and not on any actual possession of his own. It is not quite clear, moreover, that witnesses were actually tendered by him for examination and that the Magistrate refused to take their evidence. It is possible that what really took place was that the Magistrate declined to issue further process. Whatever it may be, and even assuming that the Magistrate was not justified in the circumstances in refusing to allow further evidence to be adduced in support of the first respondent's claim, I am clearly of opinion that there has been no failure of justice by reason of such refusal in the circumstances of the case, and there is therefore no reason to interfere in revision, in view of the provisions of Section 537 of the Criminal Procedure Code. Criminal Revision Cases No. 382 and 383 of 1937 are accordingly dismissed.

(3.) The remaining petition for expunging certain remarks does not require detailed consideration. No doubt the learned Magistrate has used strong language in describing the first respondent's evidence and conduct. Mr. K. Section Jayarama Aiyar contends that the language is not stronger than the occasion called for, while the petitioner's advocate contends otherwise. It is certainly a matter in which there can be a reasonable difference of opinion, and I must say that the language is not so objectionable or uncalled for that I should correct it judicially. I have to say at the same time that the learned Magistrate would have done well if he had observed greater decorum and more restraint in choosing his words. I do not think the learned Magistrate intended to wound the feelings of the first respondent by referring to his "muddled brain" and describing him as "the villain of the piece" and the "origin of the whole trouble" and it cannot be said in the circumstances of this case that the criticism and even strong criticism of the first respondent's conduct and evidence was out of place. All that can be reasonably urged is that the criticism might have been more mildly worded, but this is not to say that the criticism actually levelled was so harsh that it should be revised or corrected in revision. This petition is also therefore dismissed.