Woyesul Huq and others vs Shobrati Jolaha and others

Macpherson, J.—This is an application under S 107 of the Government of India Act. It is contended that the Subdivisional Magistrate of Nawadah acted with material irregularity in the exercise of his jurisdiction in attaching under S. 146 of the Code of Criminal Procedure forty five plots of land which were the subject of a proceeding under S. 145 of the Code between the present petitioners as first party and the present opposite part as second party.

The hearing of the S. 145 case commenced on the 12th February. The first party examined six witnesses and tendered a considerable amount of documentary evidence, and the Magistrate, actuted by what later he considered undue tenderness for the second party, adjourned the cross-examination of these witnesses till the 16th February intimating that further delay would not be allowed. On the 16th February, however, the pleader for the second party filed a petition praying for postponement to enable him to move for transfer of the case. No grounds were given in the petition nor were any stated verbally. It was obviously a move with the object of having the case tried by the successor of the Magistrate who was about to proceed on leave and was in keeping with the obstructive tactics which had been adopted by the pleader on the 12th and which had led to a reprimand from the Court. Eventually the petition for postponement was refused and the case proceeded exparte.

The Magistrate came to the conclusion that the first party was possessed of what appeared to be complete papers to substantiate his story; they also rebutted the presumption arising out of the entries in the record of rights which was the only evidence in favour of the second party. The evidence went to show that there had been an exchange of lands subsequent to a partition and that the second party had received other lands in exchange for the plots in dispute. He held that the second party was not in possession and proceeded as follows:

The case of the first party is no doubt more probable. The documentary evidence fully supports it. But as the case 1 as not been contested on behalf of the second party, I cannot be sure of my finding. There is also one point more, namely, that this very controversy is the subject matter of an issue in the commutation of rent cases. To decide the point here definitely when one party has not contested the case might prejudice the decision in the commutation case. The Court is mainly concerned with preventing a breach of the peace. My decision on possession cannot finally decide the issue. Therefore I consider the best course would be to attach the lands as I cannot positively say who is in actual possession.

The inference to be drawn is that all the judicial consideration before him led the Magistrate, who had already found that the second party was not in possession to the conclusion that the first party was in possession of the subject of dispute but that influenced by extraneous or non-judicial considerations he flinched from the apparently inevitable decision to that effect and the consequent order under Sub-S. 16 It is not the Magistrate''s business to speculate whether his order under S. 145 will prejudice a future decision, perhaps several years hence, in a revenue proceeding. It is also not sound to check his hand because his decision is not final. And, as has been aptly pointed out, the reason given for failure to give effect to the evidence of the first party which he believed would apply to all exparte proceedings, and the best course for a party to a proceeding under S. 145 who has no case but wishes to harass the other party, would be to evade a contest and perhaps also, as in this instance, be rule to the Court, whereupon the Magistrate would shrink from the responsibility of passing an order favourable to the contesting party. It is indeed true that an attachment under S. 146 will as effectually prevent a breach of the peace as a decision in favour of a party under S 145, but a reasonable effort [ Sheobalak Rai and Others Vs. Bhagwat Panday and Others, ] varying of course with the circumstances of each particular case must be made to decide as to possession before there is jurisdiction to attach the subject matter under S. 146.

The order of the Sub-divisional Magistrate must therefore be set aside. Petitioners desire that the case should be remanded for a fresh decision on the existing record. This suggestion fails to commend itself. The trying Magistrate is no longer available. Moreover the sugar-cane which was the standing crop on the disputed land has been removed and the Magistrate should be let free to take such action according to law as he deems to be required by the circumstances as they present themselves.

The application is allowed and the order of the 22nd February attaching the property in dispute is set aside.