Mr. E.B. Clair Smith and Others vs Abid Hussain and Another

Atkinson, J.—This application for revision arises from the order made by Mr. Lane, Deputy Magistrate of Bhagalpur, on the 16th of December 1916. The order of the learned Deputy Magistrate was made u/s 146 of the Code of Criminal Procedure, attaching about 4 cottas of land situated in the town of Bhagalpur. It appears that a proceeding u/s 145 was instituted as between Abid Hussain as first party and Agha Noor Muhammad Khan as second party. The learned Deputy Magistrate in the course of his investigation was unable to satisfy himself as to which of the two parties were in possession of the land in dispute and accordingly he acted in the exercise of the powers conferred on him by Section 146 of the Code of Criminal Procedure and attached the property. The petitioner, Mr. Clair Smith, who represents a certain minor under the Court of Wards, and his co-sharers, came forward and pointed out to the learned Deputy Magistrate that neither Abid Hussain nor Agha Noor Muhammad Khan had ever been in possession of the disputed land, and that in truth and in fact it was the property of the minor, whom Mr. Clair Smith represented, and his co-sharers; and accordingly they asked the learned Deputy Magistrate to release the land from attachment and to give them an opportunity of establishing their possession in the proceeding which had been instituted u/s 145 of the Code of Criminal Procedure. The learned Deputy Magistrate, however, passed the order of the 16th of December 1916 and declined to accede to the application of Mr. Clair Smith and his co-sharers; whereupon this Court was pleased to issue a Rule with a view to setting aside the order of Mr. Lane of the 16th December 1916. It appears to me that Mr. Lane should have yielded to the application of the petitioners and should have followed the decision in Joykissen Mookerjee 24 W.R. Cr. 40. The facts of that case seem to apply to this case and in my opinion the reasoning of that judgment is sound. It would be a great hardship that an attachment should be made against a man''s property, without giving him an opportunity of making a case for the protection of his rights, as between two parties neither of whom have been able to establish their possession to the property in dispute. Accordingly I will set aside the order of Mr. Lane, dated the 16th of December 1916; and I will return the case to the learned Deputy Magistrate and direct him to add Mr. E.B. Clair Smith and his co-sharers as parties to the proceeding u/s 145 for the purpose of determining their possession of the property in dispute.