Radhanath Barthakur vs Banarashiram Sahu

Thadani, C.J.—This is a reference made by the learned Ses J. Upper Assam Districts, in the case of one Radhanath Barthekur v. Banarashiram Sahu in which the learned 1st Class Mag., Jorhat, passed the following order:

In order that the 2nd party (Radhanath Barthekur) shall not take possession of the strip of land (25 x 10 cubits) towards the eastern end of dag No. 1897, that is, alongside the Bank of Assam building, to the exclusion of the enjoyment of the right of use, as an easement until he shall obtain the decree or order of a competent Ct. adjudging him to be entitled to exclusive possession.

The learned Ses, J. has recommended that the order passed by the 1st Class Mag. of Jorhat, dated 18-6-1949, be set aside, having regard to the following facts,

It appears that Radhanath Barthekur secured for himself settlement of a small plot of land (dag No. 1897) abutting on the Assam Trunk Road, Jorhat, comprising an area of 11 lesass, at an auction sale held by Govt. for a sum of Rs. 115000. This settlement was confirmed, on appeal, by this Ct. Shortly afterwards, Radhanath Barthekur commenced building a house on the land when, it is alleged, Banarashiram Sahu put impediments in the way of Radhanath Barthekur, whereupon the latter instituted proceedings u/s 144, Cr.P.C. against Banarashiram Sahu. In due course, the learned Mag. paused an order on 27-6-1949 whereby he directed Banarashiram Sahu not to trespass upon dag No. 1897 & not to cause any obstruction or annoyance to the 1st party (Radhanath Barthekur) in constructing a house. On the following day, i.e. on 28-5-1949, Banarashiram Sahu filed an appln. before the same Mag. u/s 147, Cr.P.C. upon which a notice was issued to Radhanath Barthekur to show cause against the appln, made by Banarashiram Sahu, & after taking evidence, the learned Mag. came to the conclusion that Banarashiram Sahu had established a right of way over the disputed land vide his order dated 18-6-1949.

The learned Ses, J. points out that the Mag, upon receiving the appln. from Banarashiram Sahu, did not follow the procedure laid down; by law that far from being satisfied as to the likelihood of a breach of the peace, he should have come to the conclusion that there was no-such likelihood in view of his own order passed in the proceedings u/s 144, Cr.P.C. only the previous day. The learned Ses, J. further points out that the same Mag. in the proceedings u/s 144, Cr.P.C. had decided that Banarashiram Sahu had no right to the land in suit & had directed him not to trespass upon the land of Radhanath Barthekur that in passing the order on 18-6-1949 upon the appln. of Banarashiram Sahu directing Radhanath Barthekur not to take possession of the strip of land, the learned Mag. passed an order at variance with his previous order, dated 27-5-1949.

Mr. Barooah appeared for Radhanath Barthekur in support of the reference made by the learned Ses, J. He points out that under Sub-section (6) of Section 144, Cr.P.C., the order passed by the learned Mag. on 27-5-49 was to remain in force for a period not exceeding 2 months-from the date of the order. He contends that so long as this order, which was to remain in force up to 27-7-49, had not been set aside before that date by a Ct. of competent jurisdiction, the learned Mag. had no jurisdiction to resolve the question of the likelihood of a disturbance of public tranquility arising out of the alleged right of way over the land in question by making an order in favour of Banarashiram Shau & against Radhanath Barthekur, Banarashiram Sahu having been previously directed in proceedings u/s 144. Cr.P.C. not to trespass upon the land of Radhanath Barthekur: in other words, for a period of 2 months from 27-5-49, there was no question of the same Mag. or any other Mag. being competent to resolve the question of likelihood of the disturbance of public tranquility in other way then the one in which it had already been resolved by the Magi by his order dated 27-5-49. We think the contention must prevail.

Mr. Ghose for Banarashiram Sahu has contended that the appln. made by his client u/s 147, Cr.P.C. was founded upon a different set of facts. He stated that the appln. made under Section147, Cr.P.C., related to a dispute over a strip of land which was not the Subject matter of the dispute in the previous proceedings u/s 114, Cr.P.C. But a bare reference to the order of the Mag. dated 27-05-49 suffices to show that the land in respect of which the right is now claimed, was the land involved in the proceedings u/s 144, Cr.P.C. Indeed in the previous proceedings u/s 144, Cr.P.C. Banarashiram Sahu had claimed a right of way over the entire land of Radhanath Barthekur purchased by him at the auction. In his order, dated 27-5-49, passed in the Rule 144, Cr.P.C. proceedings, the learned Mag. stated:

2nd party, that is to say, Banarashiram Sahu, wants to have a passage through the land from his homestead to the A.T. Road & thereby chooses to create conditions likely to cause an imminent breach of the peace, 2nd Party, on the evidence adduced by him, goes to show that he used to pass through dag No. 1897 for a long period of time, as long as the land remained Sarhari and unoccupied by anybody...2nd party''s claim of a pathway or right of way over dag No. 1897 is not specified with any demarcation or measurement. He cannot obviously claim the whole or any part of the dag. according to his own choice. An area of 5 lessas out of 16 lessas covered by the original dag No. 1897 has already been set apart as Sarkari for use of the public.

It is clear from this order of the learned Mag. that it was not the case of Banarashiram Sahu then that he had a right of way over a particular strip of land, as, now alleged by him.

The grounds on which we propose to set aside the order of the Mag. dated 18-6-49 is that on 28-5-49, when the appln. u/s 147, Cr.P.C. was made before him by Banarashiram Sahu, he had no jurisdiction to go into the question as to whether or not there was a likelihood of a breach of the peace, having regard to the fact that that question had already been resolved by his order, dated 27-5-49. So far as Radhanath Barthekur is concerned, there being an order, dated 27-6-49, in his favour, no question of his being a party to a breach of the peace arose. If Banarashiram Sahu elected to disregard the order of the Mag. passed on 27-5-49 it was scarcely open to him to allege a breach of the peace & and thereby induce the Mag. to take action u/s 147, Cr.P.C. The proper course for the Mag. should have been to deal with him for the breach of the order made by him on 27-5-49 if & when he attempted to disturb the peace & not to encourage him by entertaining proceedings u/s 147, Cr.P.C.

We accordingly accept the reference made by the learned Ses. J. & set aside the order of the learned Mag., dated 18-6-49, in Misc. case No. 55 of 1949.

Ram Labhaya, J.

I agree.