1. This is an application to quash an order dated 21st March 1930 drawing up proceedings under Section 145 of the Cr PC, in respect of two plots bearing numbers 9 and 28.
2. The proceedings originated in a report dated 6th January 1930 by a chaukidar Gena Kurmi at police station Muzaffarpur of likelihood of a breach of the peace on which the Sub-Inspector on 13th January 1930 submitted a report to the Magistrate recommending action under S. 144. Notices were issued and the parties appeared on the 22nd January. The sub-divisional officer on 23rd January 1930 made an order to draw up a proceeding under Section 145 of the Cr PC. The petitioners objected to this order on the ground that their master whom they represent holds a decree against the opposite party dated 16th August 1928 in respect of the disputed land and other lands in execution of which possession was delivered to the petitioner's master on 10th June 1929. He moved the Sessions Judge who referred him to the District Magistrate suggesting that proceedings might appropriately be taken under S. 144 or S. 107 and pointing out that the District Magistrate had power to change the proceedings if he agreed. Meanwhile the Sessions Judge kept the application before himself pending. The District Magistrate on 2nd February without passing any definite orders referred the matter back to the sub-divisional officer suggesting that the sub-divisional officer could deal with the matter summarily under S. 144 or, failing that, could consider the propriety of proceeding under S. 145. The sub-divisional officer held a local inquiry and on 21st March 1930 adhered to his previous order whereupon the petitioners again moved the Sessions Judge who rejected their application on 22nd April 1930. Proceedings were thus delayed for three months from 23rd January to 22nd April by a desultory discussion of the procedure to be followed, the District Magistrate and Sessions Judge both having suggested to the sub-divisional officer the propriety of proceeding otherwise than under S. 145; but neither the District Magistrate nor the Sessions Judge being prepared to pass any definite order.
3. It is a fact that the petitioner's master Saiyid Zahur Hussain holds a decree obtained by him after contest up to the High Court in a title suit in which Chedi Thakur was defendant 1. It appears not to be denied that delivery of possession was taken out and that possession was delivered. The Magistrate's explanation shows that he is disposed to hold that physical possession as against the opposite party did not pass by the delivery of possession. In that suit the petitioners' master prayed to recover possession alleging his title and stating that possession was being interfered with by defendant 1, that is Chedi Thakur, the present opposite party. Chedi Thakur disclaimed all present connexion with the property in suit saying that he had possessed only thika right and his thika has terminated. In the present proceedings Chedi says that he was interested in the disputed property not only as a thikadar but as a raiyat and that his interest as raiyat continued in contradiction of his own written statement in the suit. The plaintiff's attack on this defendant had been an assertion that defendant had no right whatsoever to interfere with the disputed land in any capacity and the defendant did not contest that proposition. The suit was decreed for khas possession and the delivery of possession purported to be a delivery of khas possession under O. 21, R. 35 of the CPC. The Magistrate's order and explanation indicate that he is disposed to hold that physical possession as against the opposite party (Chedi Thakur) did not pass by the delivery of possession.
4. It is contended that when delivery of possession was given under O. 21, R. 35 of the CPC, it was not open to the Magistrate to hold that possession did not pass, that it was not open to the Magistrate to hold that there was any dispute and that his plain and sole duty was to maintain the possession of the decree-holders which he should have done in proceedings under S. 144 or S. 107. For these contentions reliance has been placed on Behari Gir v. Bhuneshwari Kuer (1), a decision based on the Calcutta cases of Doulat Koer v. Rameswari (2) and Kunjbehari Das v. Khetra Pal Singh (3). The decision first cited was the decision of a single Judge as was also Kamla Prasad Singh v. Gobind Sahay (4) which has also been cited and these decisions are no doubt entitled to respect. I consider however that it is incumbent on me to express my own view of the law and not blindly to follow those decisions, more particularly as they seem difficult to reconcile with the Full Bench decision of Parmeshwar Singh v. Kailaspati (5) and that of Bhulan Raut v. Kumar Rai (6). Moreover, the view of law taken in the two Calcutta decisions which were followed in the two cases relied on for the petitioner has been rejected as erroneous by a Full Bench of the Calcutta High Court in Agni Kumar Das v. Mantazaddin (7).
5. Beginning with the words of the section itself the conditions which give the Magistrate jurisdiction to take proceedings are stated in S. 145, Cl. (1) in very broad terms:
“Whenever a……. Magistrate…….is satisfied……that a dispute likely to cause a breach of the peace exists concerning any land.”
6. The Full Bench of this Court and the Full Bench of the Calcutta High Court agree in holding that these words have their natural meaning.
7. In certain decisions of the Calcutta High Court it hag been held that to give a Magistrate jurisdiction under this section the “dispute” must be a bona fide dispute or a dispute which has not been already decided inter partes by a competent Court. The correctness of this view is examined by Rankin, C.J (at p. 301 of 56 Cal. and following) in Agni Kumar Das v. Mantazaddin and his Lordship held that:
“the doctrine that a Magistrate's jurisdiction is limited in the manner contended for is wholly without warrant in the statute and represents an unworkable and unreasonable attempt to thrust into the section qualifications and conditions which are rejected by its letter no leas than its general intention,”
8. And that
“these qualifications and conditions have their Sources in a misapprehension of certain principles of law (at p. 303 of 66 Cal.).”
9. In the Patna Full Bench decision, Parmeshwar Singh v. Kailaspati , Chamber, C.J said that the Magistrate having found that khas possession did not pass to the applicants under the proceedings of the civil Court was not acting without jurisdiction and his proceedings were not irregular, and Roe, J. considered that the fact of a likelihood of a breach of the peace was sufficient to give the Magistrate jurisdiction; the weight to be attached to a previous order of a civil or criminal Court was a question for consideration of the Magistrate. Sharfuddin, J., said:
“A civil Court decree in favour of a party will become infructuous if the Magistrate interferes with it; but the Magistrate is not bound to maintain it blindly.”
10. On the other hand Rankin, C.J in Agni Kumar Das v. Mantazaddin pointed out that
“it is true that if on a given date the plaintiff has been put into possession by the civil Court then on that date the plaintiff got possession as against the defendant… it is an error to hold in such cases that the decree-holder was never in possession or to ignore the delivery to him”
11. And attributed interference by the High Court in cases where the Magistrate had interfered with or nullified a civil Court's decree to the Magistrate having
“come to a wrong finding on the fact of possession by reason of this error, (at p. 311 of 56 Cal.)”
12. At this point I may refer to the discussion by Roe, J., in Parmeshwar Singh v. Kailashpati of the case law on the question of the scope of the Court's power of superintendence. It was taken as settled law that the High Court's power of superintendence was confined to cases in which a Court had acted without jurisdiction or in excess of jurisdiction or had refused to exercise a jurisdiction vested in it by law. Chamier, C.J, endorsed the rule laid down in a series of decisions that the High Court would interfere in such a case where the Magistrate had acted without jurisdiction or exceeded his jurisdiction or refused to exercise jurisdiction or usurped jurisdiction. His Lordship said:
“It is not sufficient to show that there has been an erroneous decision on a question of law or fact.”
13. That being the general practice of all the Chartered High Courts, we may seek in it the explanation of those decisions in which it has been stated that a Magistrate had no jurisdiction to interfere with the civil Court's decree. Rankin, C.J, in Agni Kumar v. Mantazaddin , refers to Chatrapal Singh's case (8) as one in which the Magistrate having ignored the delivery of possession came to a wrong finding as to the fact of possession and similarly Bholanath Ghose's case (9) was a case of wrong finding of fact that a person evicted from possession was still in possession. But interference on the ground of such an erroneous finding was difficult to justify if the High Court's powers of superintendence were limited to cases where the error was one of jurisdiction. So we find in such cases as Doulat Koar v. Rameswari Koeri , Kunjbehari Das v. Khetra Pal Singh and Atul Hazra v. Uma Charan Chondgar (10), the High Court assuming a jurisdiction to interfere by denying the Magistrate's jurisdiction to pass the order and by the fiction that though a breach of the peace was imminent there was no dispute within the meaning of S. 145(1). The real fact of the matter was that in those cases as indicated by Rankin, C.J, in the passage above cited there was a gross error by the Magistrate on the fact of possession, an error so gross that the High Courts found themselves impossible to tolerate it without interference but because of the rule of practice laid down they justified their interference in several cases by the erroneous proposition that a Magistrate had no jurisdiction. I may refer to an observation of Sharfuddin, J., at p. 344 in the Full Bench decision:
“In the case of a civil Court decree of very recent date where there is no evidence to show disturbance or change of possession since the decree the Magistrate is bound to respect the civil Court decree and if he does not do so he acts without jurisdiction.”
14. This observation does not appear to have had the concurrence of the other two Judges constituting the Full Bench. It would appear to have been the learned Judge's view that a Magistrate had jurisdiction to take up proceedings under S. 145. He having done so had jurisdiction to decide them in one way and not to decide them in another way. With great respect I am unable to accept that observation as a correct statement of the law. If a Magistrate has jurisdiction to decide a case he acts with jurisdiction both when he decides it rightly and when he decides it wrongly as pointed out by the Privy Council in Malikarjun v. Narhari (11), “a court has jurisdiction to decide wrong as well as right.” Fortunately since the amendment of the Code of Criminal Procedure in 1923 the High Court has power under Ss. 435 and 439 to interfere in the course of its ordinary revisional criminal jurisdiction with any erroneous orders passed in proceedings under S. 145. It is therefore no longer necessary to excuse such interference with fallacious reasoning on the question of jurisdiction. As I am in full agreement with the reasoning of the learned Chief Justice in Agni Kumar Das v. Mantazaddin I need not further argue the point that the Magistrate had jurisdiction to institute proceedings under S. 145. In the words of that judgment:
“To say that when the claim of one party is mala fide or is unreasonable the Magistrate cannot act under S. 145… is… bad law. If the party which seems to have no case of title is out of possession there can be no reason why the other party's possession should not be declared.”
15. It follows from what I have said above that not only has the Magistrate jurisdiction to act under S. 145 but even if he decides that Chedi Thakur was not dispossessed by the delivery of possession that decision will still be a decision which he has jurisdiction to make. It may be a decision so grossly erroneous that this Court would have no option but to interfere in revision but the time for that has not yet come.
16. The application is dismissed.
K.N/R.K
17. Application dismissed.