Mansa Singh and Others vs Mahindra Singh and Others

Chaudhary Sia Saran Sinha, J.—The petitioners of this Criminal Revision were Ist party in a proceeding u/s 145 Cr.P.C. in which the opposite party of this Criminal Revision were the 2nd party. By the impugned order dated 17.1.1974, which is the subject matter of this Criminal Revision this proceeding u/s 145 Cr.P.C. was decided in favour of the 2nd party and this has led the Ist party (petitioners) to come upto this Court. The controversy between the parties came up for consideration before this Court earlier at the instance of the petitioners which was registered as Criminal Revision No. 2643 of 1972. The decision of this Court, which succinctly summarises the relevant facts of this case, is reported in (1) 1974 B.L.J.R. 25 Pyara Singh V. Mahendra Singh). It is not necessary to detail the entire facts of this case as put-forward by the parties for the purpose of disposing of the three contentions raised before this Court by the learned counsel for the petitioners in support of his argument that the impugned order was illegal, perverse and ultra vires. It would suffice to say that the petitioners claimed to be in continuous possession of the Hotel premises, the subject-matter of dispute, including the land on which the Hotel stands since 1932, by virtue of settlement by Tisco on permanent basis. According to them, initially they themselves carried on the Hotel business but under a deed of partnership of the year 1959, this Hotel business was carried on in partnership with opposite party Mahindra Singh in the period from April, 1959 to March, 1971, when the term of the partnership deed expired and since after March, 1971; they are again managing the Hotel business themselves to the entire ex-elusion of the opposite party. In spite of the Hotel business being run under partnership in the period aforesaid, the Hotel premises continued in exclusive possession of the petitioners, the Partnership Firm having only permissive possession of the same in the period of partnership. Their case further is that on 13th October, 1972, opposite party Mahindra Singh with the help of his relations and supporters tried to make forcible entry in the Hotel premises which was objected to by them with the result that there was clash between the parties culminating 10 two criminal cases, case and a counter-case, and the Sakchi Police apprehending breach of peace locked the Hotel premises. The petitioners then prayed before the Subdivisional Officer that the Officer-in-charge, Sakchi Police Station be directed to unlock the Hotel premises to enable them to continue their Hotel business and that opposite party Mahindra Singh be restrained from causing any interference in their peaceful possession. The Subdivisional Magistrate called for a report from the police which was received by him on 17th of November, 1972 and on that date he passed orders for the drawing up of a proceeding u/s 145 Cr.P.C. in respect of the Hotel premises, referred to above, and by the same order he attached the same. He also passed some other orders with which we are not concerned at present.

The petitioners took up the matter before this Court in Criminal Revision 2643 of 1972, referred to above, and the order of the Subdivisional Magistrate to the extent it related to the drawing up of a proceeding u/s 145 Cr.P.C. and the order of attachment of the Hotel premises was maintained. This is how the parties had to face a contested 145 Cr.P.C. proceeding before the Executive Magistrate.

Both the parties filed their written statements, affidavits and a good deal of documents in support of their respective cases. The case of the petitioners on the point of possession has already been referred to above. The case of the opposite party, as made out in the written statement, was that the Hotel premises has been coming in peaceful possession of opposite party Mahindra Singh for the last 14 years in his own right and title and that the other members of the opposite party have merely been assisting him (Mahindra Singh) in the Hotel business being carried on therein. As regards his right to possess, the case, as sought to be made out on behalf of the opposite party, was that what is said to be a partnership agreement by the petitioners was in fact a transaction of sale out and though, for the reasons stated in the written statement, namely, toward off (sic) any risk of resumption of the land by the superior landlord, instead of a deed of sale, a deed of partnership was brought into existence. The further case of opposite party was that after Bhoor Singh, the ancestor of the petitioners died in October, 1959, Mahindra Singh got the premises in question allotted in his name by the Tisco on 16.6.1972 under a deed of lease which was registered on 27.7.1972.

Both the parties filed quite a large number of documents as also" the affidavits of certain persons and on a consideration of the same the Executive Magistrate in his long order dated 17.1.1974 disposed it of in favour of the members of the opposite party. It may be useful to quote the last two paragraphs of the impugned order which run as follow:--

From what has been discussed above it must be held that the imports of the documents and affidavits filed by the 2nd party Mahendra Singh and others is both qualitative and quantitative superior to that of the 1st party Pyara Singh and it appears on the basis of the discussions above that the claim of physical possession put-forth by the 2nd party Mahendra Singh in respect of the disputed premises is true.

It is, therefore, held and declared that the 2nd party, Mahendra Singh and others, is in physical possession of the disputed premises at 1/1 Kalimati Road, Sakchi and he would continue in such possession unless evicted therefrom in due course of law. Any disturbance to his possession by any party is hereby forbidden. The order of attachment issued is vacated in favour of the 2nd party, Mahendra Singh.

Learned counsel for the petitioner, Shri Kameshwar Prasad, challenged the impugned order by raising three contentions. His first contention was that the impugned order fell short of the requirements of Section 145 Cr.P.C. Sub-section (4) of the Code of Criminal Procedure, 1898, to be referred to hereinafter as ''the Old Code'' in as much as the Magistrate failed to record a finding of possession in terms of those provisions. The second contention was that the impugned order was liable to be set aside on account of the failure of the Magistrate to consider properly Annexure-E to the written statement filed on behalf of the petitioners as also the affidavit sworn in by Pyara Singh, one of the petitioners, which undisputedly, is in the shape of the written statement filed on behalf of the petitioners. The third and the last contention was that the affidavit sworn in on behalf of the opposite party fell short of the requirements of Order XIX Rule 3 of the CPC and as such'' they were inadmissible in evidence and the impugned order, based on them as it was, is liable to be set aside. Learned counsel for the opposite party Shri K.K. Sahay, resisted all these three contentions.

Sub-section (4) of Section 145 of the old Code provides, inter alia, that the Magistrate shall then, without reference to the merits of the claims of any of, such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject. Obviously the date of initiation of the proceeding u/s 145 Cr.P.C. which, in the instant case, undisputedly, is 17.11.1972. The words ''at the date of the order mentioned in Sub-section (4) of Section 145 of the old Code assumes special significance in the context of two aspects, namely, that the question of possession has to be determined without reference to the merits of the claims of any of the parties to a right to possess as also in view of the period of two months mentioned in the second proviso to Sub-section (4) of, Section 145 of the old Code which states inter alia, that if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed; he may treat the party so dispossessed as if he had been in possession at such date. Obviously the impugned order, as would appear from the extract quoted above, does not contain a finding that the opposite party were in possession on the date of the order of the Initiation of the proceeding.

While conceding that there is no specific finding about the possession of the 2nd party either on the date the order was passed; namely, 17.11.1972, or about their forcible and wrongful dispossession within the period of two months next before 17.11.1972 the learned counsel for the opposite party, Shri K.K. Sahay, contended that this defect could be cured by the provisions of Section 537 of the old Code. It is not possible to accept this contention in view of the specific requirement of Sub-section (4) off Section 145 of the old Code. The provision of Section 537 of the old Code itself being ''subject to the provisions hereinbefore contained'', it cannot be the intention behind enactment of Section 537 that the provisions thereof should defeat the other provisions specifically laid I down in the old Code.

The scope of Section 537 of the old Code came up for consideration before their Lordships of the Supreme Court in the case of (2) Willie (William) Slaney Vs. The State of Madhya Pradesh, I may quote with respect some of the observations of their Lordships in the decision:--

Now it is obvious that the question of curing an irregularity can only arise when one or more of the express provisions of the Code is violated. The question in such cases is whether the departure is so violent as to strike at the root of the trial and make it no trial at all or is of a less vital character. It is impossible to lay down any hard and fast rule but taken by and large the question usually narrows down to one of prejudice. In any case, the courts must be guided by the plain provisions of the Code without straining at its language wherever there is an express provision.

The contention raised on behalf of the petitioners was that "the absence of any specific finding by the Magistrate about possession on the specified date mentioned in Sub-section (4) of Section 145 of the old Code, in the facts and circumstances of this case particularly in the context of the alleged attempt for forcible entry into the Hotel premises on 13.10.72 giving rise to criminal cases and the looking of the said premises by the police, earned serious prejudice to the petitioners. Undisputedly there was also 90 order of attachment of the Hotel premises. While according to the submission of the learned counsel for the petitioners, the order of attachment, which was made on 17.11.1972, continued till the date of the impugned order by which it was vacated, according to the learned counsel for the opposite party, between 17.11.1972 till some period, about which the learned counsel could not enlighten me, the attachment order remained inoperative though it was again reimposed after the decision in Criminal Revision No. 2643 of 1972, referred to above. In this background, the contention of the counsel for the petitioners about prejudice cannot be said to be without force.

None of the learned counsels for both the sides could cite any direct authority either of this Court or of the Supreme Court on the point as to what would be the effect of an order passed u/s 145 of the old-Code if there is no specific finding about possession on the date specified in Sub-section (4) of Section 145 of the old Code. One of the decisions relied upon by the learned counsel for the opposite party was a Division Bench decision reported in (3) Yar Mohammad Saha Vs. Hayat Mohammad Saha and Others, . This decision was relied upon to show that omission of the Magistrate, to record an order that the second party was in possession at the date of the preliminary order u/s 145 did not make his final order under that section ultra vires and without jurisdiction. The facts of that case are entirely different from the facts of the instant case. In that case when the proceeding u/s 145 of the old Code was drawn up and three witnesses were examined by one of the parties, who subsequently filed a suit as a plaintiff, he filed a petition praying to withdraw that case saying further that he would not enter upon the land until the matter in dispute had been settled by a Civil Court. It was on this petition that the Magistrate recorded an order declaring the defendants to be in possession of the lands in dispute and directing the plaintiff "not to enter upon the lands and not to disturb the second party''s possession thereof till the latter be evicted therefrom by due process of law.'''' Subsequently that party as a plaintiff went in for a suit and there arose the question of limitation under Article 47 of the Limitation Act and it was in that context that the matter came up before the Calcutta High Court. Chatterjee J. observed as follows:--

The omission to record a formal finding on the point under the circumstances, I think, does not render the order ineffectual for the purpose of the present case

Richardson J., in a separate judgment also observed as follows:--

An omission of this character does not entitle the plaintiff to impeach the Magistrate''s order in collateral proceedings.

Obviously, therefore, the principle laid down therein cannot be applicable to the facts of the instant case where the question of prejudice looms large. The other decision relied upon by Shri K.K. Sahay was a single Bench decision of the Madras High Court reported in (4) Krishnappa Naidu and Another Vs. Alamelu Ammal, . It was observed in this case that an order merely declaring a patty in possession, though not a specific compliance, with the provisions of Section 145(4), may be construed as declaring the possession at the date of the order, if each party was only contending for its own possession at the date of the order and previous to it. In that case two points were urged in the revision against an order u/s 145 of the old Code before the High Court. The first was that the Magistrate had not stated his ground for thinking that a breach of the peace concerning this land was unlikely to occur. The High Court found that the Magistrate was satisfied as to the likelihood of the breach of the peace. The second was that the order of possession did not specify the possession with reference to the date specified in Sub-section (4) of Section 145 of the old Code. The Magistrate, after discussing the evidence as to possession adduced on either side, had stated that the evidence was weak on both sides, but that the ''''probability seems to be that the petitioner.(respondent before, the High Court) had been in possession." It was on the basis of this finding that he had declared the petitioners being in possession u/s 145 of the old Code. His Lordship held that it was true that the Magistrate did not expressly refer to the date of the order in his finding but, in the facts and circumstances of that case, it should very reasonably be taken that the possession that the Magistrate found had reference to the date of the order. In view of what has been stated above, the facts of this case cannot be said to be on all fours with the facts of the instant case.

The third decision relied upon by Shri K.K. Sahay was a Division Bench decision of this Court reported in (5) Ishwari Singh and Another Vs. Kameshwari Singh and 10 Others, . This decision does not at all support the opposite party as it nowhere lays down that the deficiency in an order u/s 145 Cr.P.C. in not giving a finding of possession with reference to the date specified in Sub-section (4) of Section 145 of the old Code can be cured by Section 537 of the old Code or that such a deficiency is such that it should be ignored in spite of the fact that it does not conform to the specific requirement of the said subsection. What happened in this case was that the Magistrate drew up a proceeding u/s 145 on the 24th of November, 1967. Subsequently one more person was added in that proceeding on the 10th of October, 1969. There were certain infirmities in the order dated the 24th November, 1967 and the Magistrate in his subsequent order dated 10th October, 1969 observed that the proceeding dated 24th November, 1967 was being dropped and a fresh proceeding u/s 145 Cr.P.C. was being ordered. After enquiry the Magistrate declared the members of the 2nd party to that proceeding to be in possession of the lands in dispute on the date of the proceeding and the question for interpretation was whether the words ''on the date of proceeding'' means the 24th November, 1967 or the 10th October, 1969. For the reasons staled in the decision, their Lordships held that the date of the proceeding mentioned in the impugned order would be the 24th of November, 1967 and not the 10th of October, 1969. This decision cannot, therefore, be of any avail to the opposite party.

On the other hand, learned counsel for the petitioners cited a Single Bench decision of the Madras High Court reported in the same volume, namely (6) Marudanayakam Pillai Vs. Syed Mohammad Rowthen and Others, where it was held that if a Magistrate failed to record a finding as to which party was in possession at the date of his preliminary order, he failed to exercise a jurisdiction vested in him bylaw, and the High Court would be justified to interfere in revision. This single Bench decision of the Madras High Court has a reference to a Division Bench decision reported in (7) 16 CLJ 239 (Thumbaiabed Hampanna V. Parisi Gangamma) to which Seshagiriji Aiyer, J. who delivered the judgment in the case of Marudanayakam V. Mohammad Rowthen and others (supra) was a party. The observations in Marudanayakam Pillai Vs. Syed Mohammad Rowthen and Others, were to the following effect:--

Throughout the order of the Magistrate there is not a word said about possession on 21st September, 1915, the date on which he must find who was in possession. As myself and Spencer, J. said in the Judgment in Thumbaiabed Hampanna V. Parisi Gangamma when the mind of the Magistrate is not applied to finding as to who was in possession on the date of the preliminary order, the proceedings must be taken to have been passed without jurisdiction. I adhere to that view.

The submission of Shri Kameshwar Prasad further was that there is absolutely no reference of the Division Bench decision of the Madras High Court in the case of Krishnappa Naidu and Another Vs. Alamelu Ammal, relied upon by Shri K.K. Sahay. Certain other decisions were also cited by Shri Kameshwar Prasad but I need not refer to them as they are not directly on point nor the facts of these cases are similar to the facts of the instant case.

In the facts and circumstances of this case, a finding as to possession on the crucial date, as required in Sub-section (4) of Section 145 of the old Code, was, in my opinion, absolutely necessary and omission to give such a finding by the Magistrate, as contended, caused prejudice to the petitioners and occasioned failure of Justice. On the facts of this case Section 537 of the old Code cannot come to the rescue of the opposite party. Thus the impugned order stands vitiated on this ground alone.

In view of my finding on point No. 1, it is not necessary to decide the other two points raised by Shri Kameshwar Prasad, learned counsel for the petitioners, when this case is going to be sent down to the Magistrate concerned for fresh decision in accordance with law. The Magistrate, while disposing of this proceeding on remand, will keep in view the objection raised by Shri Kameshwar Prasad as to non-discussion about Annexure E to the written statement as also to the affidavit of the petitioner, Pyara Singh, and dispose of the same in accordance with law. As regards the third objection raised by Shri Kameshwar Prasad, referred to as the third contention, if the parties, on being advised, pray before the Magistrate for amending the affidavits already sworn in but not conforming to the provisions of Order XIX Rule 3 C.P.C. he may allow an opportunity to both the parties to get the same amendment to that extent in accordance with law. Except to this extent, the Magistrate will decide the case on the materials already on record. The result is that Criminal Revision is allowed, the impugned order is set aside and the case is sent back to the Magistrate concerned for fresh decision in accordance with law keeping in view the observations made above.