GANGADHAR Vs. BALKRISHNA

JUDGEMENT

(1.) STAPLES , A.J.C. 1. The applicant applies for revision of the order of the Sessions Judge, Wardha, which confirmed art order of the Sub-Divisional Magistrate, Wardha, passed under Section 145, Criminal P.C. The applicant had made an application to the Sub-Divisional Magistrate under Section 145, alleging that the non-applicants had changed the boundary between their fields and had taken possession of about a quarter of an acre of his field, No. 35, by force. A preliminary order was passed, and after a short written reply by the non-applicants the applicant's pleader Mr. Kale stated that the boundary line between, the two fields was unchanged, that he was prepared to have the boundary measured by the Court with the help of any revenue officer according to the settlement record and that he would abide by the decision of the Superintendent of Land Records about the exact-boundary. Mr. Ghate pleader for the-non-applicants stated that he had no objection if a revenue officer was directed by the Court to fix the boundary lines between the fields according to the settlement record and that any encroachment would be condoned and that-the non-applicants would abide by the decision of the revenue officer. On these statements the Magistrate directed that the Superintendent of Land Records should be asked to measure the boundary line between the fields Nos. 35 and 40 according to the settlement record and put the parties in possession accordingly. The Superintendent of Land Records submitted a report by 18th September 1928 but the applicant's pleader stated that he wished to examine him. He was so examined on 21st September and then the Court examined the patwari, who actually did the measurements, on 2nd October arguments were heard on the 6th October and on 11th October further statements of the parties were recorded. At that time Mr. Manohar Deshpande for the applicant stated that his client was not satisfied with the measurements-taken by the Superintendendent of.Land-Records and the Revenue Inspector and wanted to revoke his previous statement. Mr. Ghate for the non-applicants stated that the settlement map could not now be challenged and that it was binding, that no flaw had been shown in the measurements taken by the Revenue Inspector and permission could not be granted to the applicant to revoke his former statement and agreement to submit to the measurements. The Magistrate then passed an order and held that the arbitration was act on the point of determining the fact of possession, but was to determine the boundary line according to the settlement record, according to which the parties undertook to maintain future possession. He held, then, that the parties, when they agreed to abide by the settlement dhura and to maintain future possession in accordance therewith, gave up their right to determine actual past possession. He further held that according to the spirit of Section 145, if the parties agreed to maintain future possession in accordance with a certain order, the findings on their statement would be legal. The Magistrate refused therefore to allow the applicant to revoke his statement and passed an order that the parties should maintain possession of their respective fields in accordance with the boundary as pointed out by the Superintendent of Land Records until the matter was finally decided by the civil Court. On an application for revision the Sessions Judge held that the rulings cited by the applicant as regards arbitration in such proceedings did not apply and that the method of survey was agreed upon by the parties to decide the dispute as to the extent of possession of each of the parties. He further held that the primary object of proceedings under Section 145 was as stated by the Magistrate to present a breach of the peace and that it was not for the Court in these proceedings to adjudicate upon the title or right of possession. He added: The parties in this case had agreed to have the question of their possession decided by the result of the survey, and the lower Court did not act illegally in accepting it.

(2.) I am of opinion that the view taken by the Sessions Judge is incorrect. The agreement between the parties was not to have the question of past possession decided by the result of the survey as is quite clear from the settlements and from the order of the Magistrate; the agreement was that measurements should be taken and that the boundary should be fixed according to the settlement map, The Magistrate has made it clear that he has made no order as regards past possession but has ordered that future possession should be maintained according to the boundary fixed by the Superintendent of Land Records after measurements. I am very clearly of opinion that such an order under Section 145, Criminal P.C., is wrong. That section relates, as has been held in numerous cases simply to the fact of actual possession at the date of the preliminary order. No question of title can be taken into consideration, nor, in my opinion, can any order be passed as regards future possession without reference to the actual possession at the date of the preliminary order. The order of the Magistrate, therefore, is on the face of it, incorrect and cannot be upheld.

(3.) IT seems clear, then, that proceedings under Section 145 cannot be submitted to arbitration and that all that can be done is that, in certain cases, the Court may appoint a commissioner or commissioners to conduct a local enquiry and to report as regards actual possession.