Mahanth Krishna Deyal Gir and Another vs Sheikh Nirmali and Another

Mullick, J.—The first party in these proceedings is a person who claims through the Mahanth of Budh Gaya, and the second party is a person who claims through Irshad Ali Khan by purchase.

It is admitted that the Mahanth is the proprietor in posssession of 13 annas (thirteen annas) of Mouza Jaigir, which is the village in dispute, and that in 1889 he became an usufructuary mortgagee of the remaining 3 annas (three annas) and that on the 29th of April 1916 there was a proceeding u/s 145, Criminal Procedure Code, between the first party and second party with the result that the first party, was confirmed in possession of the whole of the disputed land. Then at or about the month of July 1916 the second party deposited in the Civil Court, purporting to act u/s 83 of the Transfer of Property Act, the amount of the zarpeshgi, but the Mahanth declined to accept the deposit and that matter is still in dispute. It also appears that a litigation is going on about the Mahanth''s title by purchase to an one anna odd share of the three annas which the second party claim.

On the 27th of July 1916 the Settlement Officer made an order directing that the second party should be recorded as proprietors in possession of the three-annas share and that the entry in favour of the first party as usufructuary mortgagee should be cancelled. There were then disputes between the parties and a temporary injunction u/s 144, Criminal Procedure Code, was issued by the Magistrate on both sides.

Finally on the 2nd of February 1917 the Police reported that the second party was wrongfully interfering with the possession of the first party and that action u/s 107, Criminal Procedure Code, should be taken against them. The Sub-Divisional Magistrate of Gaya, however, declined to take action u/s 107, Criminal Procedure Code, and decided to take action u/s 145, Criminal Procedure Code. The present application is made by the first party on the ground that the learned Sub-Divisional Magistrate had no jurisdiction to take fresh proceedings u/s 145, Criminal Procedure Code, while the proceeding of the 29th of April 1916 declaring the possession of the first party remained in force.

Now that proceeding directed that the first party was to be maintained in possession till evicted by due course of law, The question is, has the first party been evicted by due course of law.

The learned Vakil for the second party contends that the Settlement Officer''s order amounts to an eviction of the first party by due course of law and he relies upon Leo. Morre v. Monoranjan Guha 12 C.W.N. 696; 7 C.L.J. 547.

It my be admitted that due course of law does not necessarily mean a decree of the Civil Court, but an order which evicts the first party must be either an order of a Civil Court or of a Court acting under statutory authority. In the latter case, there must be a clear indication, express or implied in the terms of the Statute itself, to show that the order has the effect of a decree.

Now here, what was the nature of the Settlement Officer''s order? The Settlement Officer''s order created no rights. He had only the power to record possession. The record was only a rebuttable piece of evidence and there is no statutory authority by which it can be inferred that such a record has the effect of evicting a person from any property. It is quite clear to my mind that the Settlement Officer had no power to evict the first party by his order.

Let us next look at the Settlement Officer''s entry as a piece of evidence. It is contended that upon the entry itself it must be presumed that the second party had legal possession at the time that the entry was made.

It is quite clear, however, from the judgment of the learned Settlement Officer himself that the only ground for cancelling the entry in favour of the first party and substituting an entry in favour of the second party was that the second party had deposited in Court the amount of the usufructuary mortgage. Apparently the Settlement Officer thought that this was sufficient to transfer legal possession and that title passed automatically from the first party to the second party. This, however, was a totally erroneous conception of the law and where, as in this case, the first party does not admit the validity of the deposit, no inference as to the passing of title can be made. The Settlement

Officer''s proceedings as evidence rebut themselves and it is quite clear that the entry was incorrect.

It is also further clear that the learned Sub-Divisional Magistrate had only the Police report as a basis for action and as the Police themselves reported that the first party was in possession and had continued in possession since the order u/s 145, Criminal Procedure Code, of the 29th of April 1916, the Settlement Officer''s finding, if any such finding can he inferred, to the effect that possession had passed from the first party to the second party, was totally without evidence.

It has been urged that perhaps possession passed by consent, but this is negatived by the relations of parties and the Police report.

Then it is urged that the second party did in fact collect some rents from the tenants after depositing the zarpeshgi money. If that was so, that was an act of trespass. So long as the order u/s 145, Criminal Procedure Code, remains in force and effect, such an act of trespass would not throw the burden of proving possession upon the first party again.

Therefore, on a review of all the circumstances, it is quite clear that the first party have neither been evicted in duo course of law, nor surrendered possession amicably; and that upon the evidence which was before the learned Sub-Divisional Magistrate, the proceeding u/s 145 made on the 29th of April 1916 was still in force and effect; and if that was so, the learned Sub-Divisional Magistrate had no jurisdiction to institute fresh Section 145 proceedings between the same parties. The proper course was to take proceedings u/s 107, Criminal Procedure Code, against the second party, if he thought that the second party was wrongfully disturbing the possession of the first party. It is not contemplated by the law that a successful party in a proceeding u/s 145 should be harassed by repeated proceedings under the same section at the instance of the unsuccessful party.

The order of the learned Sub-Divisional Magistrate, being in my opinion without jurisdiction, is set aside.