V.E. Argles v. Chhail Behari

1. This in a reference by the learned Sessions Judge of Gorakhpur, arising out of proceeding under Section 145 of the Cr PC. The dispute is about the property known as Natwar Estate in the district of Gorakhpur which consists of zarnindari and markets. It appears from the application, dated 7th May, 1948, made to the learned Sessions Judge that eleven villages are involved in this case. This estate originally belonged to one Mr. Argles, who died about 18 years ago leaving the applicant Mrs; Argles as the widow. He had made a will before his death. It is alleged that, according to it, Mrs. Argles was given a life estate in the property with no powers of alienation and lease. Upon the death of the latter, the property was to come absolutely to Mr. Argles' daughter.

2. On 18th August, 1943, Mrs. Argles and her daughter executed a registered deed of lease in favour of Chhail Behari the oppoiste party before us, for a period of seven years. It is common ground of the parties that up to the last week of March 1946 the lessee was in peaceful possession of the property and no dispute arose between the lessors and the lessee. It is alleged by Mrs. Argles that in the last week of March 1946 the lessee voluntarily abandoned the possession of the leased property and she peacefully entered in possession of it. About two months later, however, according to Mrs. Argles, dispute arose be-tween her and the lessee and the lessee began to assert his possession over the property. Hence, on 25th May, 1946, Mrs. Argles brought a suit in the civil Court for a declaration that she was in actual possession of the property. The plaint was held to be deficiently stamped and the Civil Judge asked Mrs. Argels to make good the deficiency in court-fee. Against that order Mrs. Argles has preferred an appeal to this Court. It is still pending. Thus the civil suit has not been decided so far. About two weeks subsequent to the institution of the civil suit by Mrs. Argles, the lessee brought a suit under Section 217 of the U.P Tenancy Act, 1939, in the revenue Court for an injunction to restrain the lessor, Mrs. Argles, from interfering with his possession. It is necessary to set out here the provisions of that section. It provides:

“A thekadar who has been wrongfully ejected from the whole or any part of the theka area, or wrongfully prevented from exercising any of His rights as thekadar, by the lessor or any person claiming under or as agent of the lessor may sue for any or all of the following remedies:

(a) recovery of possession;

(b) an injunction;

(c) compensation for such wrongful dispossession or unlawful interference;

(d) compensation for an improvement lawfully made by him.”

3. This suit was contested by Mrs. Argles and no less than ten issues were framed by the learned Revenue Officer. The first three issues are relevant for the purposes of this case and they are as follows:

(i) Whether the lease dated 18th August, 1943 is void,

(ii) Whether the plaintiff gave possession over the theka land in March 1946, if so, its effect.

(iii) Whether the plaintiff is in possession of the theka villages. If not, what is its effect.

4. Issue 1 was raised on Mrs. Argles' plea challenging the validity of the lease on the ground of fraud, misrepresentation and undue influence, etc. All these pleas were repelled. Another ground upon which the validity of the lease was assailed was that, having regard to the powers given to Mrs. Argles by the will, she could not make any lease of the property. On an interpretation of the will learned Revenue Officer held that the will did not debar Mrs. Argles from executing a lease of the type under consideration.

5. On issue 2 after a consideration of the oral and documentary evidence—the documents being inter alia letters from Mrs. Argles to the lessee— learned Revenue Officer arrived at the finding that the lessee did not give up possession of the theka land. In the course of the discussion on this issue learned Revenue Officer remarked as follows:

“The plaintiff on his part has also given documentary evidence to show that he continues in possession and carries out the conditions of the theka foe example the payment of over Rs. 35,000 to Mrs. Argles due from the lessee till August 1946, the realisation of rent of over Rs. 4000 from 19th March, 1946 onwards and the payment of land revenue of over Rs. 3000 after March 1946.”

6. On issue 3 learned Revenue Officer noted that he had already struck it off by his order, dated 18th March, 1947. At the time of the argument it was contended that it was wrong on his part to have struck off that issue he held, however, that it was rightly struck off. He decided the case on 10th March, 1948 and decreed the claim for injunction, restraining the defendants from interfering with the plaintiff in the exercise of his right as a the thekadar over the property given at the foot of the plaint for the period of lease. An appeal has been preferred against that decree in this Court and it is still pending. An application was made to this Court for the ad interim stay of the operation of the decree passed by the learned Revenue Officer and this was allowed on 23rd March, 1948.

7. During the pendency of the suit in the revenue Court two reports dated 2nd and 19th October, 1947, were made by the police to the Sub Divisional Magistrate for proceedings under Section 145 of the Cr PC, in view of the apprehended breach of the peace between the leasee, Chhail Behari and Mrs. Argles, the lessor. Proceedings were then started under S. 145 and on 5th October, 1947, learned Magistrate ordered the interim attachment of the property under S. 145(4) of the Code. Before these proceedings could be concluded, the learned Revenue Officer had given the decision aforesaid on 10th March, 1948. Learned Magistrate relying upon that decree decided the case under S. 145 “accordingly.” He withdrew the attachment made under sub-s. (4) of S. 145 and released the property in favour of the lessee, Chhail Behari. Mrs. Argles was for-bidden to interfere with the lessee's possession until she had established her right to possession in a competent Court of law. Against that order Mrs. Argles went in revision before the learned Sessions Judge and be has made the reference under consideration. He recommends that either the entire order of the Magistrate be set aside and he may be directed to proceed according to law and to decide the issue of possession and then record an, order under sub-s. (6) of S. 145 or under Section 146 of the Cr PC, as the case may be, or the latter portion of the Magistrate's order releasing the property in dispute in favour of Chhail Behari, opposite party, and forbidding Mrs. Argles's interference with Chhail Behari's possession of the disputed property be deleted and simply the order withdrawing the attachment be maintained.

8. The first point taken by the learned Sessions Judge and contended by the learned counsel for Mrs. Argles is that the learned Magistrate did not record an order, as contemplated by sub-s. (1) of S. 145. Section 145, sub-s. (1) provides that:

“Whenever a competent Magistrate is satisfied from a police report or other information that a dispute likely to cause a breach of the psace exists concerning any land or water…. he shall make an order stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader…. and to put in written statements of their respective claims as respects of the fact of actual possession of the subject of dispute.”

9. The position in the present case is that when the police reports, dated 2nd and 19th October, were placed before the learned Magistrate, he on their perusal passed an order of attachment of property as in his opinion the case was one of emergency. Mrs. Argles thereupon filed a petition on 28th October, 1947, asking for the cancellation of the order of attachment. Learned Magistrate by his order dated 28th October, 1947, rejected it. Notices were duly issued to the parties. Although no formal order, as required by sub-s. (1) of S. 145 of the Code, was drawn up yet it was substantially complied with and a perusal of the record shows that the parties have not been prejudiced thereby. The point is fully covered by the Full Bench case of Kapurchand v. Suraj Prasad, 1933 A.L.J.R 188 : (A.I.R (20) 1943 ALL. 264 : 34 Cr. L.J 414 (F.B)) It was held in that case that:

“Where a Magistrate is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists, he is seized of jurisdiction to take action and he is empowered by the Code to act in a particular way. In this view the jurisdiction of the Magistrate arises from the fact that he has received certain information and that he is satisfied as to the-truth of that information. The jurisdiction of the Magistrate does not depend on how he proceeds. There are two things—one is the authority conferred on him to act and the other is how he is to act. If he has jurisdiction, he is not deprived of jurisdiction merely because his procedure is erroneous or defective.

Where an order under Section 145 of the Cr PC did not expressly state that the Magistrate was satisfied that there was a likelihood of a breach of the peace nor did the order specifically mention the grounds upon which he was so satisfied and the proceedings showed that the accused was not prejudiced it was held that the irregularity committed by the Magistrate was cured by Section 537 of the Cr PC”

10. The omission by the learned Magistrate to, draw a formal order in terms of sub-s. (1) of S. 145 does not invalidate his order.

11. The second ground taken is that the learned Magistrate did not give an opportunity to Mrs. Argles to adduce evidence as to her possession. A perusal of the judgment of the learned Magistrate shows that he considered it his duty to maintain the rights of the successful party (Chhail Behari) who had obtained a decree under Section 217 of the U.P Tenancy Act, from the revenue Court and did not allow the defeated party Mrs. Argles to invoke the aid of the criminal Court to neutralise the effect of the decree passed by the competent Court. He has summed up his remark in the following terms:

“It will be beyond my jurisdiction to pass such as order which would render the order of the competent revenue Court nugatory.”

12. In this view of the matter, learned Magistrate did not allow Mrs. Argles to adduce evidence of possession. Learned counsel for Mrs. Argles relied upon Radha Raman Das v. Emperor, 1936 A.L.J.P 197 : (A.I.R (23) 1936 ALL. 177 : 37 Cr. L.J 215). In that case, on the receipt of the police reports, the Magistrate passed an order under S. 145(1) and attached the property under Section 145(4) of the Cr PC. Subsequently on production of the order of the revenue Court deciding as to which party was entitled to the property the Magistrate dropped the proceedings under S. 145 and released the property from attachment, but directed that, possession be delivered to the party who was successful in the revenue Court. It was held that the Magistrate had no power to direct the delivery of possession to the party who had succeeded;, in the revenue Court and the order was set aside and the case was sent back for disposal. That case is distinguishable from the present one. The final order was passed by the Magistrate in that case under the provisions of Section 146 of the Cr PC, and on the language of that section, it was held that it presupposed an enquiry by the Magistrate on the evidence as recorded. In the present case, however, the order has been passed by the learned Magistrate not under S. 146 but under S. 145(6). In this connection, I may refer to Kunj Behari Das v. Emperor, 1936 A.L.J p. 370 : (A.I.R (23) 1936 ALL. 322 : 37 Cr. L.J 694). It was held in that case that in view of the provisions of sub-s. (9) of S. 145 of the Code it was discretionary with the Magistrate to summon or not any witnesses in a proceeding under that section. When the rights of the parties have been determined by a competent Court the dispute is at an end and it is the duty of the Magistrate in proceedings under Section 145 of the Cr PC, to maintain the rights of the successful party and not to allow the defeated party to invoke the aid of the Magistrate and police to neutralise the effect of the decree of the competent Court, see Makhanlal v. Mangal, 1942 A.L.J p. 629 : (I.L.R 1943 ALL. 150). The same view has been taken in other cases also.

13. In Jang Bahadur Singh v. Nazimul Haque, A.I.R (34) 1947 Pat. 245 : (47 Cr. L.J 976), it was held that a Magistrate acting under Section 145 of the Cr PC, cannot re-agitate a dispute that has been settled by a competent Court and give a declaration in favour of the party whose claim to title and subsisting possession has already been negatived in a recent contested litigation. To allow this would amount to permitting a criminal Court to fly in the face of the decision of a competent civil Court being the only Court competent to adjudicate with finality the disputes as to title and possession as between the parties having conflicting claims thereto. The scope and purview of S. 145 does not allow such free and untrammelled interference by criminal Courts with the final decision of the civil Courts. This may not apply to cases where the civil Court decision is old enough making room for possibilities of subsequent disturbances of the state of things found and pronounced to have been one existing. In Mt. Ram Sri v. Sri Kishun, A.I.R (11) 1924 ALL. 777 : (25 Cr. L.J 1242), it was held that even an order of revenue Court in mutation proceedings is an order of a competent Court deter-mining the person entitled to possession.

14. Learned counsel for Mrs. Argles has relied upon Mirza Raza Husain v. M. Mehdi Hasan, A.I.R (9) 1922 Oudh 256 : (23 Cr. L.J 684) and upon Gaya Prasad Singh v. Bam Sarober Saran Singh, A.I.R (21) 1934 pat. 471 : (36 Cr. L.J 624). None of these cases is, in my opinion, of any help to the applicant. In the first mentioned case the Magistrate imported his knowledge of the evidence recorded in a mutation case still undecided into the case under S. 145. This was disapproved and the order of the Magistrate was set aside on the ground that it was not based on any legal evidence. That is not the position here. In the second case, it was held that it is for the Magistrate dealing with the case under S. 145 to decide as to what weight to attach to a previous order of a civil or criminal or revenue Court. It was further held that a case under S. 145 ought not to be kept pending for the decision of the application for revision against the previous order in the land registration case. Far from supporting the applicant's contention it goes against him. Learned Magistrate in the present case has given due weight to the decision of the revenue Court in the suit under Section 217 of the Tenancy Act.

15. The fact that the operation of the decree passed by the revenue Court was stayed by this Court by an interim order does not nullify that decree. It only means that execution of that decree cannot be taken out pending the decision of the appeal in this Court. The decree subsists and must be treated as valid until it has been set aside or varied. The fact that an injunction was granted means that the lessee was in possession of the property.

16. The latest point taken is that the learned Magistrate had no materials to decide the question of possession and in this connection great stress is laid upon the fact that the revenue Court did not decide issue 3 framed by it. I have quoted above the remark from the judgment of the revenue Court when dealing with issue 2 in which he has held that the plaintiff (Chhail Behari) continues in possession and carries out the conditions of the theka. Further on, in the discussion of this issue, the revenue Court has also held that Mrs. Argles did make some realisation of rent after March 1946. Commenting on this aspect of the case, learned Revenue Officer remarked as follows:

“In view of the facts that there is no reliable evidence of Chhail Behari giving up the theka in Match 1946 voluntarily, this evidence of realisation of rent on behalf of Mrs. Argles can only amount to interference and nothing more.”

17. In connection with the question of possession there are the following outstanding facts. There is the registered deed of lease in favour of Chhail Behari. Its period has not expired. There is no documentary proof of the alleged surrender. It is said to be an oral surrender. There is the circumstance that within two months of the alleged oral surrender Mrs. Argles had to bring a suit in the Civil Court for a declaration of possession. There is further the fact that Chhail Behari obtained a decree from a competent revenue Court under S. 217, U.P Tenancy Act. His name in still entered in the village records as thekedar. Soon after the institution of the suit under Section 217 of the Tenancy Act, Chhail Behari obtained an ad interim injunction against Mrs. Argles. Chhail Behari's men were bound down under Section 107 of the Cr PC, and the learned Sessions Judge set aside the order by his judgment, dated 2nd April, 1947, observing as follows:

“The apprehension is from the person who wants to take forcible possession but for which there would be no apprehension at all…. in that view of the matter probably it may be zamindar's men who would be liable to be bound down…. The agresscr himself cannot ask the other party to be bound down to enable its object to be served.”

18. In view of all these circumstances, it cannot be said that the learned Magistrate wrongly exercised his discretion in releasing the attachment in favour of Chhail Behari. At any rate, I see no justification to exercise the revisional jurisdiction in the present case and to set aside the order passed by the learned Magistrate which appears to be just and proper. In this connection I may refer to the following order of the learned Sessions Judge passed by him on 6th April, 1948, on Chahail Behari's application for revision against some interim order of the Magistrate:

“I need hardly point out to the Magistrate in the trial Court that the decision of a Civil Court on questions of title to property is the last word and is implicitly binding on the Criminal Courts. I, however, do not find that this principle of law has as yet been flouted by the Magistrate or even that there is a probability of such a contingency. It is hoped that the Magistrate will not ignore the proceedings in the Civil Court. With these remarks I dismiss the revision application.”

19. A decree passed by a revenue Court in a suit within its competence is as effective as a decree of a Civil Court.

20. In the circumstances of the present case, I am of opinion that the order of the learned Magistrate is correct and does not call for any interference.

21. The reference is rejected and the order of the learned Magistrate, dated 5th May, 1948 is upheld.

22. Reference rejected.