Lachmi Singh v. Bhusi Singh And Others Opposite Parties.

1. The Sub-Divisional Magistrate of Barh, by his order of 10th September, 1916, attached under Section 146 of the Cr PC certain lands in dispute, which were the subject of an enquiry before him under Section 145 of the Cr PC. In this order the Magistrate mentions that the dispute related

“to the possession of 18 bighas of land in village Alipur Bhita, post office Bukhtiarpore,”

and, after giving reasons, he came to the conclusion that he was doubtful about the possession of the parties concerned in respect of any particular plot. He therefore attached the property under Section 146 of the Cr PC. The proceeding, a copy of which has been shown to me by the opposite party, related to the plots described therein by khatian numbers. In it there was no mention of the area in dispute so far as it appears to me from the proceedings, so that all the lands covered by the plots mentioned in the proceedings were the subject-matter of enquiry by the Magistrate. Both parties admit that the area of the plots mentioned in the proceedings would come to 24 bighas odd. It does not appear how the Magistrate ultimately came to mention in the judgment 18 bighas. The number of the plots is not mentioned by him which he meant to attach, nor is it stated expressly whether any plot included in the proceedings was excluded from his order of attachment. Be that as it may, 18 bighas were actually attached and on 9th September, 1917 were settled with a third person. In April 1917 the petitioners filed a civil suit in respect of 18 bighas attached. On 17th September, 1917, taking advantage of the mention of the 18 bighas in the order of attachment, the petitioner applied to the Magistrate for an order under, Section 144 of the Cr PC, against the opposite party, so that he might peacefully cultivate 6 bighas of the land. Upon that petition, the Magistrate ordered an enquiry by the police, and upon the receipt of the police report, the Magistrate held, on 24th September, 1917 that by a mistake of calculation the order of attachment mentioned only 18 bighas, whereas the entire area covered by the proceedings amounted to 10.23 acres; in other words 24 bighas odd. He accordingly directed that the 6 bighas be also cultivated by the man with whom the 18 bighas were settled and directed the record to be put up on 1st October.

2. The present petition of the first party has been filed in this Court against the orders of the Magistrate of 17th September and 24th September respectively. It appears however that on receipt of the record, the Magistrate on 1st October 1917 held that the land formed part of the proceedings last year, and is therefore part and parcel of the land attached, and that the plots in question will therefore be cultivated by the man with whom settlement of the 18 bighas was made on 9th September, 1917. Thereafter on 18th October another petition was filed on which the Magistrate passed an order that the matter was already disposed of and referred to the order passed by him previously on 1st October. The petition in revision filed in this Court does not mention the order of 1st October, or the order of 13th October; but it refers only to the orders of 17th and 24th September. The subsequent orders after 24th September being practically the same as that of 24th September, I would deal with all the orders together although the petition does not specifically mention the orders of 1st and 13th October.

3. It has been contended by the learned vakil for the petitioner that the Magistrate's order of 24th September and also those of 1st and 13th October, were without jurisdiction inasmuch as the Magistrate could not review an order passed by him under S. 146. Reliance has been placed upon Section 369 of the Cr PC for this purpose. This section no doubt supports the view that if a judgment is signed by any Court other than a High Court, the Court shall not alter or review the same. There is however an exception to that section mentioned therein, namely, that the Court can correct a clerical error. The Ruling reported as Ram Dulare v. Ajudhya Singh(1) no doubt reiterates the substance of the section itself and holds that orders under S. 146 are not subject to revision or review by the same Court. But the question of a clerical error did not arise in that case and is expressly exempted from the section. The question here is whether the plots in question amounting to 6 bighas, claimed by the first party, were covered by the order of the Magistrate attaching the property? The order of the Magistrate would ordinarily relate to the subject-matter in respect of which proceedings were drawn up under S. 145. This question therefore would be whether these plots were covered by plots mentioned in the proceedings. If covered by the proceedings, the order under S. 146 would doubtless cover the lands in question in spite of the fact that there was a clerical error in mentioning the area of the land attached. Surely the Magistrate could not possibly have had in his mind the area of the land at all; he had only come to the conclusion that none of the plots which were the subject-matter of the inquiry were satisfactorily proved to be in possession of any of the disputing parties.

4. He obviously meant to refer to the proceedings: and if so then it would be only a matter of clerical error and would come under the saving clause of Section 369 of the Cr PC. If on the other hand, these plots were somehow or other exempted from the inquiry under S. 145 subsequent to the proceedings, then these plots will not be covered by the order of attachment under S. 146. This is a matter for inquiry by the Magistrate. If they are covered, he would then distinctly find so and attach the property. If they were not covered he would take steps as advised under the Code of Criminal Procedure, for preventing a breach of the peace if necessary, or for initiating fresh proceedings under S. 145. Anyhow this is a matter of the construction of the proceedings and the order of the Magistrate.

5. The petitioner put in a petition before him and after police inquiry he disposed of it without giving the petitioner an opportunity of being beard. Under S. 146 no order can be passed behind the back of the parties. The Magistrate had no jurisdiction to pass an order ex parte; the proper course would be for the Magistrate to pass an order in the presence not only of the petitioner but of the opposite party, and he ought therefore to consider the matter and pass orders after giving notice to both parties. The order of the Magistrate of 24th September and those of 1st and 13th October are therefore set aside and the case is sent back to the Court below in order to dispose of it after hearing both the parties in the light of the suggestions made above.

V.S/R.K

6. Orders set aside.