Dhunmun Singh and Others vs Baleshwar Prasad Singh and Others

Rowland, J.—This application is presented by Dhunmun Singh and others, second party, against an order dated 9th March 1933, declaring the possession of certain property to be with the first party and directing u/s 145, Criminal P.C., the second party to abstain from interference with that possession. An application was presented on 23rd March 1933 to the Sessions Judge to refer the matter to the High Court which he rejected on 11th April 1933. The present application was presented on 12th June 1933 more than three months after the order complained of and more than two months after the rejection of the petitioner''s application by the Sessions Judge. The rule of practice of this Court is laid down in Kelu Patra and Others Vs. Iswar Parida and Others, that this Court will not ordinarily interfere in revision on an application presented more than two months after the date of the order complained of.

The rule is not a rule of law and of course does not take away the power of this Court to interfere in any case as undoubtedly this Court has power to do even of its own motion and in the absence of any application at all on a perusal of the record. The dispute between the parties concerned the estate of one Ramrachya Singh, deceased, and arose on the death on 19th September 1930 of his widow Bhagwati Kumri. The proceeding u/s 145 related to the kutchery house of the estate in village Sakarbasa, The opposite party claim to have succeeded as daughter and daughter''s son of the deceased, The petitioners claim as agnates of Ramrachya Singh. Proceedings were started on a report of the Sub-Inspector of Police dated 30th August 1933.

The Sub-Inspector reported that the opposite party had been in possession in the interval between the conviction of the petitioners by a Magistrate on a charge of rioting and their acquittal on appeal by the Sessions Judge, which acquittal was dated 23rd July 1932; but that the petitioners recovered possession on 1st August 1932. The Magistrate, instead of at once drawing up proceedings, passed an order u/s 144 restraining both parties from going on the disputed land, and fixed 16th September 1932 for their appearance, and after certain adjournments, the proceeding u/s 145 was actually drawn upon 27th October 1932. It is contended therefore that on the Sub-Inspector''s report and evidence the Magistrate ought to have held that petitioners were in possession from 1st August 1932 and that even if they obtained such possession wrongfully and by force, they could not be removed from possession by an order passed in a proceeding drawn up more than two months after the date on which petitioners forcibly obtained possession.

The opposite party reply that it was not their case that they were dispossessed on or about the 1st August 1932, but that they were in possession up till the date of the Magistrate''s order u/s 144, dated 31st August 1932, in which he directed both parties to abstain from going on the disputed land. Therefore it is said the Magistrate was quite right in considering the possession of the opposite party to continue in the eye of law until the date of the proceeding and in fact the Magistrate has not regarded the evidence of the Sub-Inspector with any great confidence. The opposite party rely on the findings of the Land Registration Deputy Collector to the effect that this opposite party were in possession of the estate.

The Deputy Collector directed the names of this opposite party to be entered in register D and this order was affirmed on appeal by the Collector of Monghyr and was confirmed by the Commissioner and by the Board of Revenue.

The ground on which I am asked to interfere is a technical ground, that is to say, that the Magistrate has passed ah order which would have been proper if he had drawn up the proceeding immediately on receipt of the police report, but is not proper in consequence of the delay which took place in the Court of the Magistrate before the drawing up of the formal proceedings. That is a ground on which I should hardly feel inclined to interfere in the absence of substantial injustice resulting from the Magistrate''s order.

But prima facie having regard to the findings arrived at in the Land Registration Department, the opposite party''s possession was rightful and that of the petitioners'' wrongful and it hardly seems a fit case to invoke the revisional jurisdiction of this Court on a highly technical ground. The argument derives additional force from the delay made by the petitioners themselves in presenting their application in revision. In the circumstances I do not consider that this is a case in which interference is called for. The application is dismissed and the rule discharged.