Bajit Lal Pathak And Others v. Harakh Singh And Others Opposite Parties.

1. This is an application to set aside an order passed in proceedings under Section 145 of the Cr PC against the petitioner, the second party therein, in respect of a plot of 78 bighas of land. The Deputy Magistrate, after making inquiry, decided that the first party were in possession of the whole of the disputed land.

2. The point now taken before me by Mr. Hasan Imam is that the Magistrate failed to notice that in 1918 there were proceedings under Section 145 of the Cr PC wherein 15 bighas out of this plot of 78 were found to be in possession of the first party in that case, one of whom Krishna Kant Jha, is nephew of Bajit Lal, who is a member of the second party in the present proceedings.

3. In the judgment the learned Magistrate has made reference to the judgment in a case under S. 380, I.P.C, in which it was held that Bajit Lal was not in possession of the land. He proceeds to state that since this judgment in a S. 380 case was passed, nothing has transpired to indicate that Bajit Lal has come into possession of the land.

4. It is urged that a decision as to possession having been come to in 1918 in a case under Section 145 of the Cr PC, and no steps having been taken by the party then found so to be out of possession in the Civil Court, the Magistrate was bound to uphold the order under S. 145 and had no jurisdiction to again inquire into the possession of that portion of the plot. Mr. Hasan Imam relies on a judgment of this Court in the case of Krishna Deyal Gir v. Sheikh Nirmali(1). There Mullick, J., held that when a party has been declared to be in possession as a result of proceedings under S. 145, fresh proceedings under the same section cannot be started against him, unless it can be shown that the order has been either vacated in due course of law or possession has been surrendered amicably. If a Magistrate starts such fresh proceedings, he acts without jurisdiction and his order is liable to be set aside.

5. There is no doubt that in the proceedings in 1918 Krishna Jha, the nephew of Bajit Lal, was declared to be in possession, and in view of the ruling I have just cited, the Magistrate, who passed the order in the present proceedings, had no jurisdiction to include in it the 15 bighas, of which possession had already been declared. No steps have been taken so far to challenge in the civil Courts the order passed in 1918.

6. So far then I must hold that the Magistrate acted without jurisdiction, but it is contended that his order having been shown to be without jurisdiction in respect of this portion of the property in dispute, the order as to the whole property must be set aside. In this I cannot agree. The Magistrate had jurisdiction to draw up proceedings in respect of the whole property, which gave rise to a likelihood of a breach of the peace, and his duty was to find who was in possession. He found possession as to the plot, but it must be held he had no jurisdiction to come to a finding contrary to the previous order owing to his not having taken into account the decision in the previous S. 145 proceedings.

7. I am of opinion that so much of the order under S. 145 as relates to possession of the 15 bighas, which was the subject of the previous proceedings, must be set aside. The rest of the order will stand.

V.S/R.K

8. Application partly allowed.