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Langar v. Bacha

Patna High Court
Jul 13, 1953
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Structured Summary of the Opinion: Jamuar, J.

Factual and Procedural Background

This is an application by the second party challenging an order made in a proceeding under section 145 of the Code of Criminal Procedure by a Magistrate of Bettiah. The dispute concerns 8 bighas 8 kathas 13 dhurs of land in village Siswa Bahuarwa. The first party's case alleges that the land passed in succession from Lal Parikha Mali to Bhoj Mahto, then to Bhoj's son Goga Mahto; after Goga's death his daughter, Mosammat Sokrania (a minor), became owner and was in possession, with her father-in-law Bacha Mahto looking after the property and claiming possession on her behalf. The second party contends that Goga Mahto adopted Jag Mahto (a grandson of Bhicha Mahto) and that Jag Mahto came into possession. The Magistrate investigated whether adoption had occurred, concluded that the adoption story was false, found possession with Mosammat Sokrania through Bacha Mahto, and ordered Jag Mahto to pay Rs. 250 under sub-section (3) of section 148 CrPC towards witness and pleader expenses. The second party challenged the Magistrate's order on jurisdictional and other grounds, and the matter was referred to a Division Bench because it raised an important question of law.

Legal Issues Presented

  1. Whether the non-joinder of Mosammat Sokrania (an alleged owner and a minor) as a party rendered the section 145 proceeding void for want of jurisdiction.
  2. Whether the Magistrate erred in awarding costs under sub-section (3) of section 148 CrPC without conducting an inquiry into the actual amount of costs incurred by the successful party.
  3. Whether the Magistrate exceeded his jurisdiction by investigating the question of adoption (an alleged title matter) — namely whether Jag Mahto was adopted by Goga Mahto — as distinct from the question of actual possession.

Arguments of the Parties

Applicant / Second Party (represented by Mr. Kameshwar Dayal)

  • Contended that Mosammat Sokrania ought to have been made a party and that her non-joinder vitiated the entire proceeding, rendering it without jurisdiction.
  • Relied on Jhabu Singh v. G.B. Rutherford to support the proposition that an order under section 145 in favour of a manager (without making proprietors parties) is without jurisdiction.
  • Relied on Behary Lall Trigunait v. Darby to argue that proceedings instituted against a karpardaz (manager) without making the real parties (lady and children) parties were bad.
  • Argued that the Magistrate's award of costs should be set aside because no determination was made of the actual amount of costs incurred; relied on Jhaman Mahton v. Thakuri Mahton and Manglu Sahu v. Ramdhani Tamboli for the proposition that costs under section 148 should be based on proper material of actual costs.
  • Maintained that the Magistrate should not have inquired into the question of adoption as that involved a question of title rather than mere possession.

Opposite Party / Respondent (represented by Mr. Rai Indra Bihari Saran)

  • Relied on Dhondhai Singh v. Follet (Full Bench, I.L.R. 31 Cal. 48) which considered and did not accept the view in Jhabu Singh, holding that a Magistrate has jurisdiction under section 145 to make an order in favour of a person claiming possession as agent/manager, even if the proprietors were not made parties.
  • Argued that the non-joinder of a proprietor or owner who is not in actual possession is at most an irregularity and does not affect jurisdiction; relied on Bholanath Singh v. Wood.
  • Relied on Jatan Singh v. Dukhia Singh for the proposition that failure to add a particular person as a party does not involve absence of jurisdiction in section 145 proceedings.
  • Contended that sub-section (3) of section 148 CrPC confers a wide discretion on the Magistrate to assess reasonable costs and that an inquiry into actual costs is not always required; relied on Brij Pal Singh v. Ram Naresh Singh (Allahabad High Court) to support the exercise of discretion in semi-criminal cases under section 145.
  • Maintained that the Magistrate properly examined evidence of adoption because it was a matter put in issue by the petitioners themselves and related to who was in possession.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Jhabu Singh v. G.B. Rutherford Authority that an order under section 145 in favour of a manager (without making proprietors parties) is without jurisdiction. The Court noted this authority but, following a Full Bench considered below, did not accept the view expressed in Jhabu Singh as applicable to the present case.
Behary Lall Trigunait v. Darby Proceedings against a karpardaz (manager) were held bad where the real dispute was between the proprietor (lady and children) and the other side, and the proprietor and children were not parties. The Court observed that the Full Bench considered and distinguished this case; it did not treat it as establishing that proceedings such as the present are without jurisdiction.
Dhondhai Singh v. Follet (I.L.R. 31 Cal. 48) — Full Bench Held that a Magistrate under section 145 has jurisdiction to make an order in favour of a person claiming possession as agent/manager even when the proprietors are not parties; questioned the correctness of Jhabu Singh. The Court relied on this Full Bench decision to reject the contention that non-joinder of the proprietor (or owner) rendered the proceeding without jurisdiction; it treated Dhondhai Singh as authoritative on the point.
Bholanath Singh v. Wood Held that making the manager, instead of the employer/landlord, a party in section 145 is at most an irregularity or an error of law and does not affect jurisdiction. The Court cited this authority to support the proposition that the Magistrate's proceeding against a person acting as manager/guardian is not void for want of jurisdiction but at most irregular.
Jatan Singh v. Dukhia Singh Failure to add a particular person as a party to proceedings under section 145 does not involve absence of jurisdiction in the Magistrate. The Court relied on this case to reinforce that non-joinder does not necessarily deprive the Magistrate of jurisdiction to determine possession disputes.
Jhaman Mahton… v. Thakuri Mahton… Held (Single Judge decision) that an award of costs under section 148 should be based on proper materials showing the actual costs incurred (pleader's fees and witnesses' costs). The Court observed this authority but held it was decided before the 1923 amendment to sub-section (3) of section 148 and therefore did not govern the present case under the amended provision.
Manglu Sahu v. Ramdhani Tamboli Followed the view in Jhaman Mahton that costs should be based on actual expenses (Single Judge decision). The Court noted that Manglu Sahu followed the earlier decision but that the amendment to sub-section (3) of section 148 (1923) was not noticed in that decision, so it was not controlling here.
Brij Pal Singh v. Ram Naresh Singh (Allahabad High Court) Observed that in semi-criminal cases under section 145 it is extremely difficult to prove exact costs and that the Court may use its discretion to award a reasonable amount. The Court relied on this reasoning to uphold the Magistrate's exercise of discretion in awarding costs without a formal inquiry into actual costs, finding the award not unreasonable.

Court's Reasoning and Analysis

The Court proceeded through the main issues raised by the application as follows:

  1. On the jurisdictional point arising from non-joinder of Mosammat Sokrania: the Court examined the factual position that Sokrania was a minor and that Bacha Mahto, a member of the first party, claimed possession on her behalf as her guardian/agent. The Court compared competing authorities, noting that the Full Bench decision in Dhondhai Singh v. Follet rejected the view in Jhabu Singh that such proceedings are without jurisdiction. The Court also relied on cases (Bholanath Singh v. Wood; Jatan Singh v. Dukhia Singh) treating making the manager/guardian a party as at most an irregularity which does not defeat jurisdiction. The Court concluded that Bacha Mahto's possession on behalf of his minor daughter-in-law was "such possession as...is contemplated by section 145" and therefore the magistrate's order in favour of Bacha Mahto (finding possession on behalf of Mosammat Sokrania) could not be said to be without jurisdiction.
  2. On the award of costs under sub-section (3) of section 148 CrPC: the Court scrutinized the argument that a Magistrate must always hold an inquiry into the actual costs incurred before awarding costs. The Court observed that the earlier Single Judge decisions (Jhaman Mahton and Manglu Sahu) required actual-costs inquiries but that those decisions were rendered without regard to the 1923 amendment to sub-section (3), which broadened the Magistrate's power to award incidental costs beyond witnesses' and pleaders' fees. The Court accepted the view (supported by Brij Pal Singh) that in semi-criminal proceedings it is often difficult to prove exact costs and that the Magistrate has a wide discretion to award a reasonable amount. The Court found that the Magistrate was aware that pleader's fees and witnesses' costs were relevant and that he had exercised his discretion reasonably in awarding Rs. 250.
  3. On whether the Magistrate should have refrained from examining the adoption question: the Court noted that the petitioners themselves put forward the adoption as the basis for Jag Mahto's possession. Given that adoption was specifically asserted as the source of Jag Mahto's possession, the Court held that the Magistrate did not commit an error in examining the evidence on adoption. The Court found no legal error in the Magistrate's inquiry into the adoption question.
  4. Having addressed the foregoing points, the Court concluded that the contentions of the petitioners did not establish lack of jurisdiction, that the costs award was within the Magistrate's discretion under the amended provision, and that investigation of the adoption claim was permissible and not erroneous.

Holding and Implications

Holding:

THE APPLICATION IS DISMISSED AND THE RULE IS DISCHARGED.

Implications (direct effects on the parties):

  • The Magistrate's order finding that Mosammat Sokrania was in possession through Bacha Mahto is upheld as not being without jurisdiction.
  • The award of Rs. 250 by the Magistrate under sub-section (3) of section 148 CrPC towards witness and pleader expenses is held to be within the Magistrate's discretion and is not set aside.
  • The Magistrate's consideration of the adoption question (whether Jag Mahto was adopted by Goga Mahto) is not treated as an error of law in the circumstances.

Broader precedent or legal rule: The opinion applies and relies on existing authorities (including a Full Bench decision) to clarify that making a manager/guardian or agent a party in a section 145 proceeding does not necessarily deprive the Magistrate of jurisdiction; it also interprets the scope of the Magistrate's discretion under sub-section (3) of section 148 CrPC after the 1923 amendment. The Court did not purport to create a novel legal principle beyond these applications of authority.

Additional note: Justice Sahai agreed with the judgment and the rule was discharged.

Show all summary ...

Jamuar, J.:— This is an application by the second party to a proceeding under section 145 of the Code of Criminal Procedure against an order passed against them in that proceeding by a Magistrate of Bettiah. The argument advanced in support of this application is that in the circumstances of this case the entire proceeding is without jurisdiction. As the point raised involved an important question of law, the application was referred to a Division Bench for decision.

The land involved in the proceeding was 8 bighas 8 kathas 13 dhurs in village Siswa Bahuarwa. The case of the first party is that these lands were recorded in the revisional survey in the names of two brothers, Lal Parikha Mali to and Bhoj Mahto, who had separated from their other three brothers, Bhicha Mahto, Sheogobind Mahto and Dasain Mahto. Lal Parikha having died without leaving a male issue and in jointness with Bhoj Mahto, Bhoj Mahto came in possession of the lands. Thereafter, Bhoj Mahto died leaving a son Goga Mahto, who inherited the lands in question and became the sole owner thereof. A few years later, Goga Mahto died leaving a daughter named Mosammat Sokrania as his only issue and his widow Mosammat Sundari. The case of the first party, thereafter, proceeds that Mosammat Sokrania became the owner of the property left by Goga Mahto and enjoyed possession over it. Mosammat Sokrania, who is still a minor, was married to Ramayan Mahto, son of Bacha Mahto, one of the members of the first party to the proceeding, and it is Bacha Mahto who has been, looking after the property on behalf of his minor daughter-in-law Mosammat Sokrania. On these facts, Bacha Mahto claimed to be in khas possession of about 1 bigha of the lands in dispute on behalf of Mosammat Sokrania, and the rest of the lands through bataidars who are the other members of the first party.

The claim of the second party is that the lands in question have been coming in possession of one Jag Mahto and in the following circumstances. It is not denied that Lal Parikha and Bhoj had separated from their other brothers and were living jointly. It is also not denied that on the death of Lal Parikha, Bhoj came into possession of the property and, after him, his son Goga. It is, however, the case of the second party that, as Goga Mahto had no male issue, and since he and his wife, Mosammat Sundari became crippled and invalid due to old age, Goga Mahto adopted Jag Mahto and, thereafter, Jag Mahto began to look after the affairs as the adopted son of Goga and came into possession of the property. It may be stated that Jag Mahto is a grandson of Bhicha Mahto, one of the brothers of Lal Parikha and Bhoj who had separated from him.

The learned Magistrate went into the question whether Jag Mahto had been adopted by Goga Mahto and he came to the conclusion that the story of adoption set up by the second party was false. The learned Magistrate concluded his order by finding that Mosammat Sokrania was in possession of the lands in dispute through her father-in-law, Bacha Mahto of the first party, in accordance with the case of the first party. The learned Magistrate, furthermore, under the provisions of sub-section (3) of section 148 of the Code of Criminal Procedure, ordered Jag Mahto to pay to the first party a sum of Rs. 250 towards the expenses incurred in respect of witnesses and pleader's fee to cover part of the cost incurred by the first party.

Mr. Kameshwar Dayal, who has appeared in support of this application, contended, in the first place, that Mosammat Sokrania ought to have been made a party to the proceeding and, by reason of her non-joinder, the entire proceeding has been vitiated and was without jurisdiction. His argument was (that, since it was Mosammat Sokrania who, according to the first party, had come in possession of the lands after the death of her father Goga Mahto, she ought to have been made a party to the proceeding. I had stated that Mosammat Sokrania is a minor and it was her father-in-law, Bacha Mahto, a member of the 8 first party, who claimed to be in possession of the property in dispute on behalf of Mosammat Sokrania. In support of his contention, Mr. Kameshwar Dayal relied upon the case of Jhabu Singh v. G.B Rutherford in which it was held that an order passed under section 145 of the Code of Criminal Procedure in favour of a Manager, who was an employee of the proprietors of an indigo concern, was without jurisdiction. The argument was that, since the proprietors were not made parties to the proceeding, the order was without jurisdiction. Mr. Kameshwar Dayal also relied upon the case of Behary Lall Trigunait v. Darby. In this case, the proceedings were instituted against a person who happened to be the karpardaz of a lady and her children. The lady and her children had not been made parties to the proceeding. It was observed that the dispute was really not between the karpardaz and the other side but between the lady and her children on the one side and the second party on the other side and it was held that, in the circumstances, the proceedings were bad and were set aside. Mr. Rai Indra Bihari Saran, who has appeared for the opposite party, placed before us the case of Dhondhai Singh v. Follet in which both the cases relied upon by Mr. Kameshwar Dayal were considered. The case in I.L.R 31 Calcutta 48 is a Full Bench decision. With regard to the case of Jhabu Singh, their Lordships observed as follows:—

“No doubt, the case of Jhabu Singh v. Rutherford is an authority to the contrary, but, speaking with every respect to the view there expressed, I think on a careful consideration of the language of the section, it is difficult to sustain that view.”

In this Full Bench case, their Lordships were considering the question whether there was jurisdiction in the Court under section 145 of the Code of Criminal Procedure to make an order in favour of a person who claimed to be in possession of the disputed land, as agent to, or manager for, the proprietors, when the actual proprietors were not residents within the appellate jurisdiction of the High Court. Their Lordships rejected the contention that there was no jurisdiction in the Magistrate in the circumstances just stated and, with regard to the case of Jhabu Singh, they were clearly unable to accept the opinion expressed therein. The other case relied upon by Mr. Kameshwar Dayal, namely, the case of Behary Loll Trigunait, was also considered in the Full Bench case and it was distinguished by the observation that in that case it was not held that there was no jurisdiction in the Court to deal with a case such as the present one. I see no reason for holding the view that in the circumstances of the case before us, namely, Mosammat Sokrania being a minor and her property being looked after on her behalf by her father-in-law Bacha Mahto, a member of the first party, and Bacha Mahto claiming the lands in dispute not on his own behalf but on behalf of Mosammat Sokrania, the proceedings ought to be held to be without jurisdiction. It was, however, suggested that in some later litigation, complications may arise from the fact that Mosammat Sokrania was not made a party to the present proceedings; but I do not think that any such difficulty would be created in any subsequent proceeding, as the claim of Bacha Mahto is only stated to be as that of a guardian of his minor daughter-in-law, Mosammat Sokrania. In my opinion, although the possession of Bacha Mahto is merely as an agent or a guardian and is not the possession of a proprietor, yet his possession is such possession as, in my opinion, is contemplated by section 145 of the Code of Criminal Procedure. In these circumstances, I do not think the order made under this section in favour of Bacha Mahto finding possession with him on behalf of Mosammat Sokrani, can be said to be without jurisdiction.

Mr. Rai Indra Bihari Saran also referred to the case of Bholanath Singh v. Wood wherein it has been held that the fact that the manager, and not his employer, namely, the zamindar, has been made a party to a proceeding under section 145 of the Code of Criminal Procedure is a mere irregularity, or at most an error of law, which does not affect the Magistrate's jurisdiction. In this case also, the argument was that the Magistrate had no jurisdiction to proceed where the manager was made a party and not his employer, the landlord, and the contention was answered by the observation that the course adopted by the Magistrate would be a mere irregularity, or at most an error of law which does not affect his jurisdiction. Another case relied upon by Mr. Rai Indra Bihari Saran is the case of Jatan Singh v. Dukhia Singh. It was held in this case that the failure of a Magistrate to add a particular person as a party to the proceedings under section 145 does not involve an absence of jurisdiction in the Magistrate to hear the parties and arrive at a determination as to which of the parties is entitled to possession of the land in dispute. Accordingly, on a review of the cases cited before us, I am of the opinion that the contention advanced on behalf of the petitioners that the proceedings in the present case were without jurisdiction ought not to be sustained.

Mr. Kameshwar Dayal then argued that the order passed by the learned Magistrate in respect of the award of costs to the first party should be set aside on the ground that the learned Magistrate, while awarding the costs had not entered into the determination of the question as to what was the actual amount of costs incurred by the first party. In support of this contention, reliance was placed on the case of Jhaman Mahton… v. Thakuri Mahton…Opposite Party.. This is a decision of a learned Single Judge and it was held that, while awarding costs under section 148 of the Code of Criminal Procedure to the successful party, the order should be based on proper materials, namely, the actual costs incurred as pleaders fees and costs of witnesses. A similar view was taken in the case of Manglu Sahu v. Ramdhani Tamboli. The decision in the latter case was based upon the former case and it is also a decision of a learned Single Judge. Mr. Rai Indra Bihari Saran contended that on the true interpretation of sub-section (3) of section 148 of the Code of Criminal Procedure, it would be wrong to hold that an inquiry must always be held regarding the actual costs which have been incurred by the successful party. sub-section (3) of section 148 gives, in my opinion, a very wide discretion in the Magistrate for the assessment of the amount of costs and the only restriction which this sub-section appears to place Upon the Magistrate's discretion is that the costs must be reasonable. I do not think that, on the wording of sub-section (3) of section 148 of the present Code of Criminal Procedure, it can be said that an inquiry has to be made for the purposes of finding out as to what were the actual costs incurred by the successful party — for assessing the amount of costs to be awarded to him.

The case of Jhaman Mahton was decided prior to the amendment of sub-section (3) of section 148 of the Code of Criminal Procedure in 1923. Prior to this amendment, the Magistrate could, award costs incurred by the party for witnesses and pleaders fees only and had no power to award any other costs. In these circumstances, the Magistrate had to inquire as to what were the costs incurred in respect of witnesses or pleaders fees, or both. Under the present Code the power to award costs is extended to other incidental costs as well and costs in respect of witnesses and pleaders' fees may be included. I do not think, therefore, that the case of Jhaman Mahton can govern the present case. And the case of Manglu Sahu, though decided after the amendment of 1923, followed the earlier decision in Jhaman Mahton's case and the amendment was not noticed.

In a case of the Allahabad High Court [Brij Pal Singh v. Ram Naresh Singh], it was observed that it would be extremely difficult to prove the exact sum spent in costs in a semi-criminal case such as one under section 145 of the Code of Criminal Procedure, and it was further stated that in such cases the Court may very well use its discretion in awarding an amount which it considers reasonable. I do not, therefore, think that the learned Magistrate in the present case has wrongly exercised his judicial discretion in the matter, of awarding costs. He was clearly aware that pleader's fees and witnesses costs may be taken into consideration. In my opinion, the learned Magistrate has committed no error of law by not having held an inquiry regarding the actual amount of costs incurred in the case by the first party. He has, in my judgment, exercised his discretion within the terms of sub-section (3) of section 148 and the amount awarded by him is not unreasonable.

The only other point pressed by Mr. Kameshwar Dayal was that the learned Magistrate ought not to have gone into the question regarding the adoption of Jag Mahto by Goga Mahto, as this involved a question of title to the property, and the learned Magistrate was really concerned with the actual possession of the property. I have stated that it was the case of the second party, the petitioners themselves, that the property in dispute is in possession of Jag Mahto by reason of his having been adopted by Goga Mahto as Goga, Mahto had no male issue. In the circumstances of this case, I do not think that the learned Magistrate committed any error in examining the evidence adduced by the parties in respect of this question of adoption and I am of the opinion that no error of law has been committed in this regard.

For these reasons, I would dismiss this application and discharge the rule.

Sahai, J.:— I agree.

K.D
Rule discharged.