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.