Rampabitar Singh and others vs Kasim Ali Khan and others

Adami, J.—This application is directed against an order passed in proceedings taken u/s 145, Cr. Procedure Code, declaring the first party to be in possession of an area of 42'' 36 acres of land in village Horio.

The first and second parties were cosharer landlords of the village, each having an eight annas share.

In 1914 Gajadhar Singh and other, in order to pay off the amount due by them under three decrees obtained by Karan Singh, sold 50 bighas of kasht land to Kali Charan Singh and mortgaged 26 bighas of their kasht holding to him. In 1917 Kalicharan Singh sold the 50 bighas to Bechankhan and Danukdhari Singh and assigned the mortgage to Bechankhan and Sadho Lal. Bechan Khan was admittedly the farzidar of Kasim Ali the 1st party, and Dhanukdhari and Sadho are claimed by the 2nd party as the farzidars of their brother and karta, Ram Charitar Singh. One Bhageswari Prasad held a money-diecree against Karan Singh, and in 1914 attached the three decrees obtained by Karan against Gajadhar, but he sold the decree to Kasim Ali 1st party in 1915, and the later in execution of the three decrees of Karan Singh, entered a petition of satisfaction stating that the whole amount due on the three decrees had been paid. It is the case of the first party, that Kasim alone paid the amount, the second party ever that they paid their half share of the amount in the name of Dhanukdhari their farzidar, while the first party claim to have been in sole possession of the kasht lands after their purchase, the second party claim that they held joint possession, having paid half the purchase price.

The first party in 1920 instituted a suit on the basis of the mortgage assigned to Bechan and Dhanukdhari in 1917, making the second party among others defendants. In that suit it was found that the mortgage bond was not properly attested and valid and that consideration did not pass, it was also held that Kasim Ali had not acted fairly and that he had managed to abstract certain documents which went to help the defendant''s case. The Subordinate Judge also held that Kasim Ali did not alone pay the amount which satisfied Karan''s decrees. The suit was dismissed. While the suit was pending the second party instituted a suit for partition and obtained a preliminary decree in 1920. After that decree trouble arose between the parties as to possession of the lands and on a police report, proceedings u/s 144 were started, the first party claiming exclusive possession and the second party joint possession.

Thereafter the proceedings u/s 144 were converted into proceedings u/s 145 and later, on the proceedings were revised but the revised proceedings did not contain clear particulars of the disputed land. The second party were called on to supply particulars of the lands they claimed, but as the final decree in the partition suit had not been passed the lands allotted to them had not been demarcated, they delayed filling the particulars until after the final decree had been passed. They eventually claimed possession of 321/2 bighas out of the disputed area, being lands in the area allotted to them by partition. The learned Magistrate considered that the delay in furnishing particulars told against the second party petitioners but I am inclined to think that having obtained a preliminary decree in the partition suit, it was natural that they should be anxious to wait until they knew which of the lands in dispute fell into their takhta. The Magistrate took no notice of the findings in the judgment of the mortgage suit brought by Kasim or of the petition of satisfaction filed by Kasim. These show without doubt not only that Dhanukdhari was a farzidar of the second party and thus the second party had share in the purchase from Kalicharan, but also that the second party through Dhanukdhari paid their share of the amount due to satisfy the decrees. The petition of satisfaction clearly proves this. It was virtually held by the Magistrate that the second party had failed to show that Dhanukdhari was farzidar or that the second party contributed to the satisfaction of the decrees. He considered the oral evidence as to possession and decided that if the first party was preferable to that of the second party, and observed that possession tinder partition decree could not help the second party, since the demarcation of the second party''s takhta was made within two months of the order starting the proceedings. I might point out for the information of the Magistrate that for the purpose of a decision u/s 145, the dispossession within two months must be a forcible and wrongful dispossession, and possession delivered under a decree would not be a possession of that character. However that is besides the point, for possession delivered by the court after a decree for partition of lands held in proprietary right cannot affect in this case the possession of the kasht lands which are in dispute; the parties base their claim on a purchase of kasht lands.

It is contended that inasmuch as the second party claimed joint possession of the purchase lands with the first party the Magistrate had no Jurisdiction to take proceedings u/s 145.

Now I think it is clear on the strength of the Judgment in the mortgage suit and on the petition of satisfaction which Kasim Ali filed that the second party bad a rightful claim to joint possession of the purchased kasht lands, and that Claim was virtually asserted in the mortgage suit, though the question of possession did not form an issue. It might be said that in that suit Kasim claimed exclusive rights and that the possession which has been found to be his by the Magistrate was all along adverse to the second party. That may be so, but all along the second party were claiming that any possession which Qasim Ali might have was partly on their behalf, and as I have found, they were justified in that claim.

That being so, as has been consistently held by this Court there being a good and valid claim to joint possession the Magistrate has no jurisdiction to take proceedings under S. 145 and pass the order he did. The order declaring the first party to be in possession is therefore set aside.