Ramrachya Singh vs Singeshwar Rai and Others

Shearer, J.—This application in revision is directed against an order made u/s 146, Criminal P.C., by the learned Sub-divisional Magistrate of Begusarai, attaching some 22 bighas of diara land.

The petitioner, Ramrachya Singh, took a conveyance of this land in 1987 from the opposite party, Singeshwar Rai. The latter had, some time previously, taken settlement of an area of 45 bighas from the proprietors of Shahbegpur in which the land is situated. This comprised a single block, of which subsequently the northern half was sold to the petitioner. The land was a part of a large tract, which had alluviated at about the time the settlement was made, and, as other settlements, similar, to that made with Singeshwar Rai, were also made by the landlords a dispute eventually arose between these lessees and the landlords on the one hand and certain persons on the other, who claimed that, before the land diluviated, they had had occupancy rights in it and were, therefore, entitled to recover possession of it. A proceeding u/s 145, Criminal P.C., was instituted is respect of the entire area, which was something like 1800 bighas. Both the petitioner, Ramrachya Singh, and the opposite party, Singeshwar Rai, were made parties to the proceeding, and the former gave evidence, asserting that Singeshwar Rai had been in possession of 45 bighas, out of which he had sold 22� bighas to himself. The proceeding terminated on 7th October 1939, in an order, in which the petitioner, and the opposite party were declared to be in possession of 45 bighas. Some six months or so later, the petitioner, Ramrachya Singh, complained to the Sub-divisional Magistrate of Begusarai, that the opposite party, Singeshwar Eai, was attempting to dispossess him from the 22� bighas, which he had purchased from him. The learned Sub-divisional Magistrate caused certain inquiries to be made, and, eventually, instituted another proceeding u/s 145, Criminal P.C., in respect of the 22� bighas claimed by the petitioner.

The case which the opposite party, Singeshwar Rai, attempted to make out in that proceeding was that he had throughout been in possession of the entire area of 45 bighas; that the sale deed, which he had executed in 1937 in favour of Ramrachya Singh, was a benami document, having been executed merely in order to create evidence that he was then, and had for some time been in possession of the 45 bighas of which he had taken settlement from the landlord. The learned Sub-divisional Magistrate was unable to decide who was in possession of the land in dispute, and, therefore, made an order u/s 146, Criminal P.C., attaching it.

The main point taken by Mr. K.K. Banerji for the petitioner is that the lower Court had no jurisdiction to institute a proceeding u/s 145 at all. For this Mr. Banerji relies on Jainath Pati v. Ramlakhan Prasad A.I.R 1929 Pat. 505. This decision is clearly in point. Mr. Srinarain Sahay for the opposite party contends that as a result of the order made in the earlier proceeding, his clients and Mr. Banerji''s client were declared to be jointly entitled to possession of an area of 45 bighas and that, since the order was made, a fresh dispute has arisen between them as a result of the latter claiming exclusive possession over the northern part of this area. Now, the order does not explicitly state that Singeshwar Rai and Ramrachya Singh who were respectively first party No. 3 and seventh party No. 2 in the proceeding, were entitled to joint possession over an area of 45 bighas. The order must be construed with reference to the written statements which were put in, and to the evidence adduced by Singeshwar Rai and Ramrachya Singh. It was not the case of either that they were in joint possession of the entire area of 45 bighas; on the contrary, it was the case of both of them that one was in exclusive possession of the northern and the other in exclusive possession of the southern half of this 45 bighas.

In my view the learned Sub-divisional Magistrate having in the earlier proceeding made an order putting Eamraohya Singh in possession of the 22� bighas, now in dispute, was hound to maintain him in possession of it. In any event, even if the order made in the earlier proceeding could be construed as an order putting the petitioner and the opposite party jointly in possession of 45 bighas, it was patently wrong of the lower Court to make another order which excluded Ramrachya Singh from one half of the land in dispute and left Singeshwar Rai in exclusive possession of the other half. Even if the lower Court thought that the parties had been put in joint possession of the entire 45 bighas and a dispute had arisen between them as to how it should be partitioned, it was its duty to bind both of them down until the matter had been decided by the civil Court or settled by arbitration.

But that is not at all what happened in this particular case. What happened, in effect, was that the opposite party admitted that he had practised a fraud on the Court and asked that the order, which the Court had made in consequence of that fraud, should be varied. It is the more astonishing that such an application should in part, at least, have succeeded, as the learned Sub-divisional Magistrate appears to have been satisfied that Ramrchya Singh was not a relation of Singeshwar Rai and was in consequence not likely to be his benamidar.

Ramrachya Singh is admittedly in possession of the sale deed on the basis of which he claims the disputed land. During the earlier proceeding & pleader commissioner was deputed to pake a local inspection and appears to have found that the block of 45 bighas of which Singeshwar Rai took settlement from the landlord was divided into two, Shortly before the subsequent proceeding was instituted, the Sub-Inspector of Police, and later a Sub-deputy Magistrate, went to the locality and both of them found indications that ridges had been demolished so as to make it appear that the entire area of 45 bighas was in possession of one and the same person. These are circumstances ''which go to show that whether he was his benamidar or not, Ramrachya Singh was, in fact put by Singeshwar Rai in possession of the 22� bighas now in dispute.

In any event the order made by the Court bellow, was made without jurisdiction and must in consequence be set aside. It is the duty of the Court below to maintain Ramrachya Singh in possession of the 22� bighas which was awarded to him in the earlier proceeding. If further attempts are made by Singeshwar Rai or any one else to dispossess him, action to restrain such persons should be taken u/s 107 of the Code.