KIRPAL SINGH Vs. HARI CHOUDHURY

JUDGEMENT

(1.) This is an application against an order passed under Section 145, Criminal P.C., against the present petitioners who happened to be first party to the proceedings. The proceedings were in connexion with plot Nos. 33, 72, 85 and 87- 457 of village Parora, Police Station Balia, in the District of Monghyr. The area of the lands in dispute comes up to 37 bighas odd. Two pleader commissioners were appointed, who as a result of their measurements divided the lands in dispute into various blocks. Block No. 1 contained plot No. 33 and a few other plots. Block No. 2 contained plot No. 72 and some other plots and block No. 3 contained plot Nos. 85 and 87-457 and some other plots. The order of the learned Magistrate declaring possession is as follows: Considering all facts, under Section 145 (6), Criminal P.C., I declare the persons named in Clause 2 of the under mentioned table, to be entitled to possession of the lands mentioned against their names in Clause 1 of the table, until evicted therefrom in due course of law:

(2.) Now, looking at the proceedings and the order of the learned Magistrate, it is clear that the order includes lands outside the proceedings, and as was held in Sukhari Monia V/s. Ramkhelawan Thakur A.I.R (1923) Pat. 528, in a proceeding under Section 145, Criminal P.C., as regards a dispute concerning land, a Magistrate acts in excess of his jurisdiction if he deals with a larger area of land in his order than what is included in the proceeding and his order is liable to be set aside.

(3.) The proper course for the Magistrate was to confine his order to the plots mentioned in the proceedings. Evidently, at the time of passing the order, the learned Magistrate lost sight of the fact that the proceeding referred to the plot numbers and not to the block numbers and this has brought about the result which necessitates interference with the order passed by him. It appears that arguments were heard and judgment reserved in the case on 14 June 1938, and the judgment was delivered not earlier than 10 November 1938, and the learned Magistrate has observed at the foot of his order that for certain important administrative reasons the order could not be passed earlier. The delay in delivering the judgment might have led to the error of not conforming to the proceeding while passing the order about the disputed lands.