Jamuna Prasad And Others v. Bisheshwar Sah And Others Opposite Parties.

1. This is a reference by the 2nd Additional Judicial Commissioner of Chotanagpur, Ranchi, under Section 438 of the Cr PC recommending to set aside the order of the Magistrate dated the 24th May, 1965, by which he had referred the case to the Civil Court under sub-sec. (1) of Section 146 of the Cr PC for its opinion. The facts, briefly stated, are these: On a police report, a proceeding under Section 144 of the Code was drawn up on 18-1-1963 on the ground that there was an apprehension of breach of the peace in respect of 0.06 acres of land of plot No. 878. The Sub-divisional Officer ordered the parries to show cause and the first party in the meanwhile filed a petition with certain assertions, the details of which are not necessary for the present purpose. The learned Magistrate directed the police to make an inquiry and submit its report, which it did firstly on 27-1-1963 and again on 29-1-1963 to the effect that there was an apprehension of breach of the peace in respect of bigger area of the plot. Upon hearing the parties, the learned Magistrate converted the proceeding into one under Section 145 of the Code in respect of the entire plot 878 by his order dated 30-2-1963. The parties filed their written statements, documents and affidavits.

2. The case of the first party is that he had purchased 50 decimals out of plot No. 878 virtue of a registered sale-deed dated 29-4-1960 and that he was all along in possession of the same. The case of the second party is that Jamuna Prasad, one of its members, had purchased the entire area by virtue of two sale-deeds, both of the year 1958, executed by Bhagal Oraon and Bhawa Oraon. Their further case is that Jamuna Prasad had let out a part of this plot to Nagendra Pradhan and others and had also inducted Buni Grain over the land, the area being about 10 decimals. The rest was in his possession and they have ever since been in possession of the same. The learned Magistrate heard the matter and by his order dated the 24th May, 1965, referred the case to the Civil Court for its opinion, as stated earlier.

3. The matter was heard in the Civil Court and the learned Munsif by his order dated the 30th June, 1966, held that the first party was in possession of 50 decimals of plot No. 878 and 10 decimals in possession of Beni Orain. In respect of the remaining plot, he held that it was not in dispute and, therefore, it was not necessary to record any finding in that respect.

4. It appears that when the aforesaid order was passed by the Civil Court, the second party filed a petition before the learned Munsif that Buni Orain was not a party to the proceeding and, as such, no declaration of possession in her favour ought to have been made. Thereupon, the learned Munsif recalled his finding with regard to 10 decimals of the plot and his order was, therefore, confined to 50 decimals of the plot. The learned Magistrate, who had referred the matter to the Civil Court, on receipt of the opinion, passed the order in conformity with the order of the Civil Court.

5. The present reference has been made to this Court on the ground that the learned Magistrate, who had referred the matter to the Civil Court, had acted without jurisdiction in referring the case as, in the opinion of the Additional Judicial Commissioner, the provisions of Section 146(1) of the Code had not been appreciated by the learned Magistrate and he had, therefore, acted in excess of his jurisdiction in making a reference which he could have only done if he were unable to decide the matter himself. In other words, the condition precedent for making a reference for the Magistrate was that he must first come to the conclusion that none of the parties was then in possession or that he was unable to decide as to which of the parties was in such possession. The learned Additional Judicial Commissioner was of the view that the order of the learned Magistrate showed that he was, on the other hand, clearly of the opinion that the second party was in possession and even then he made the reference.

6. Mr. Lal Narayan Sinha, appearing in support of the reference and on behalf of the second party, has taken me through the entire order of the learned Magistrate which he had made at the time of reference to the Civil Court and has drawn my attention particularly to paragraphs 8 to 10 of the order which may be usefully reproduced here:

“8. Thus, the documentary evidence overwhelmingly supports the possession of the second party Jamuna Sao. The affidavits filed on behalf of the parties are also in tune with their respective cases.

9. Before I close, I would like to touch the physical possession at the spot. The proceedings were initiated on 18-1-63. F.P Bisseshwar Sao filed a petition praying for protection as he was keeping his cattle over the land. Police was directed by the B.D.O to make enquiry and report. Police reported on 27-1-63 that there was no cow-shed or cows at the spot. It seems, the F.P did not imagine or expect that an enquiry could be so promptly made and falsehood of his claim detected. If there was no cow-shed or no cows till 27-1-1963, the F.P cannot take advantage of having erected cow-shed, if any, after 27-1-1963. The police, in fact, reported that Nagendra Pradhan, a member of the S.P had his coal shop at the spot. Thus, the physical features also support the possession of the second party.

10. It is thus clear that the documentary evidence overwhelmingly speaks in favour of the possession of the second party. The physical features also lend support to the same thing. But, I have to pause for a minute because of the plaint of declaratory suit No. 288/63. In this plaint, Bhagal Oraon son of Mareya Oraon has stated that some of the co-sharers had given 60 decimals of the land to Buni Orain. As discussed earlier, there is no evidence to establish the same, but as this is from the mouth of an interested person himself, I would like to refer this case to the Munsif for his opinion. This D.S No. 228/63 has obviously been instituted after institution of this proceeding u/s. 144 and would have very little (torn) with this case. All the same, I consider it worthwhile to make a reference of this Civil type of things to the Munsif. Because of the existence of this document, which gives rise to Civil type of claims, I have found it difficult to arrive at a decision as to who is in possession.’

7. There can be no doubt, therefore, that on a perusal of the order, referred to above, the learned Magistrate, had, in fact, found the possession of the second party, but he took the view that as similar matter was pending in a title suit, he considered it worthwhile to make a reference to the Munsif who would be in a position to decide the claims of the parties. This application has been opposed on behalf of the first party and it is contended that the reference is incompetent as the learned Magistrate was perfectly justified in making the reference as he was unable to decide the question and this matter was not open to be agitated in revision.

8. I do not think that this submission is correct and I am unable to accept this because I am satisfied from the entire order that the learned Magistrate merely shirked his duty in not recording his finding of possession of the second party, when after a full discussion he had himself found it to be so. He has taken into consideration irrelevant matters, namely, the plaint of a declaratory suit by a third party against one of the members of the second party to which the first party had absolutely no connection. It is, therefore, difficult to understand how this matter could have any relevant consideration in determining the claims of the parties as to which of the parties was in possession.

9. There is, however, a substantial point raised on behalf of the first party. It is stated that when the second party had accepted the order of reference made by the learned Magistrate by his order dated the 24th May, 1965 and did not take any step to have that order set aside, it is not open to the second party now to agitate this matter when the final order has been passed after receipt of the case from the Civil Court on a reference made under sub-section (1) of Section 146 of the Code. In support of his submission, learned Counsel has relied on a decision of the Allahabad High Court in Badri Nath Pandey v. U.P State AIR 1965 All. 127. It was observed in that case that a party could not be allowed to challenge an order to which he submitted at the time the order was passed. Thus, where the party did not challenge the Magistrate's order of reference to the Civil Court under Section 146(1) of the Code, it could not do so at the revisional stage against the final order.

10. There is no doubt that this authority supports the contention raised on behalf of the first party. But it is difficult to accept this decision as the same High Court in another decision delivered later in Ram Chandra v. State of U.P AIR 1965 All. 446, in which the case of Badri Nath Pandey, AIR 1965 All 127 has not been referred to held that the existence of jurisdiction was very different from the exercise of it the question whether there was jurisdiction over the person and the subject-matter related to the existence of jurisdiction; the decision of all other questions in the cause or matter pertained to the exercise of jurisdiction. The requirements of law for the assumption of jurisdiction if not complied with make the entire adjudication null and void. When there was lack of competence to entertain a cause or proceeding, the consent of the parties or the omission to raise an objection at the threshold would not convert it into a proper judicial process. Where jurisdiction did not exist no amount of consent, acquiescence or waiver could create it or confer it.

11. This was all the more so in respect of inferior courts as distinguished from the superior courts of record. It will be useful to refer to the observations here:

“(5) The learned Counsel for the opposite party has reiterated that the objection as to competence not having been taken before the court of the Munsif, Mohammadabad, when it proceeded to adjudicate the reference, or before the Magistrate it cannot be raised in revision. The existence of jurisdiction is very different from the exercise of it the question whether there is jurisdiction over the person and the subject-matter relates to the existence of jurisdiction; the decision of all other questions in the cause or matter pertains to the exercise of jurisdiction: Gobind Prasad v. Pawankumar, AIR 1952 Nag 278. The requirements of the law for the assumption of jurisdiction if not complied with make the entire adjudication null and void. There is ample authority for the proposition that when there is lack of competence to entertain a cause or proceeding the consent of the parties or the omission to raise an objection at the threshold will not convert it into a proper judicial process. Where jurisdiction does not exist, no amount of consent, acquiescence or waiver can create it or confer it: Kiran Singh v. Chaman Paswan, AIR 1954 SC 340; United Commercial Bank Ltd. v. Workmen, AIR 1951 SC 230 at p. 237 and Ledgard v. Bull, (1887) ILR 9 All. 191 at p. 203 (PC).

(6) This is all the more so in respect of inferior courts as distinguished from the superior courts of Record. In Halsbury's Laws of England, 3rd Edition, Vol. 9 p. 349, it is stated:

“Prima facie no matter is deemed to be beyond the jurisdiction of Superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an Inferior Court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court;’

12. The Civil Court while deciding the Reference is not a superior Court of Record. There being no presumption as to the existence of jurisdiction, such a defect can be pointed out by any party at any stage.”

13. Mr. Sri Narayan Sahay, on behalf of the second party, has relied on the aforesaid decision in Ram Chandra's case AIR 1965 All. 446 and has urged that if there was complete lack of jurisdiction, then the reference itself was incompetent and the order passed by the Munsif and consequently the final order passed by the learned Magistrate in conformity with the order of the Civil Court was null and void and this Court in such a case could be asked to exercise, its discretionary jurisdiction in revision. Learned Counsel's submission further is that when it was brought to the notice of the Additional Judicial Commissioner, who made the reference, he took the view that an illegal order passed by the learned Magistrate while making the reference ought not to be allowed to stand; and it is, therefore, rightly urged that this Court must exercise its jurisdiction to set aside the manifest illegality, which has been done in the present case.

14. The view that has been canvassed on behalf of the second party also finds support from a Division Bench decision of this Court in Shreedhar Thakur v. Kesho Sao AIR 1962 Pat. 468. It was observed in that case that it was only when either of the two contingencies mentioned in Sec. 146(1) arose that the Magistrate could refer the case to the Civil Court. He could not take recourse to Section 146(1) merely for the purpose of shifting his own responsibility. He must make an attempt to consider or discuss the evidence in order to find whether one or the other of the party was in possession. It was however, observed that the reference could not be considered incompetent on that ground.

15. Then their Lordships considered various matters that were raised before them and took the view that if a Magistrate made a reference under Section 146 in which the subject of dispute was altogether vague, the reference must be held to be incompetent and illegal. They further held that the entire proceeding after such reference must necessarily be struck down as being without jurisdiction. I, therefore, read this decision also as an authority in a case where the learned Magistrate has shirked his duty or has, without proper reason made a reference. When the condition precedent did not exist in the eye of law, then the whole reference was incompetent and the entire proceeding after that will have to be struck down. Quite apart from these reasons, I am satisfied that this is a fit case in which the discretion of this Court should be exercised to correct the illegality, already referred to in the earlier part of this judgment. I should not be misunderstood to have expressed any opinion on the merits of the case of the parties. For the aforesaid reasons, I accept the reference, set aside the final order of the learned Magistrate dated 29-9-1966 and remand the case for fresh disposal in accordance with law. Let the case be now placed for disposal before another Magistrate and the Magistrate before whom this case is placed will proceed to dispose it of on the materials already on the record. He will not permit any of the parties to produce further materials.

16. Reference accepted.