Jatan Singh And Others v. Dukhia Singh And Another Opposite Parties.

1. This case comes before me from the order made by Mr. Cousins, the Sub-divisional Magistrate of Sitamarhic within the Distract of Muzaffarpur in a proceeding under Section 145 of the Cr PC. The proceeding was instituted on 29th. July 1916; the hearing took place of 18th October; and the order of the. Sub-divisional Magistrate is dated 2nd November, 1916. By that order the Sub-divisional Magistrate has confirmed, the possession of the opposite party whom he held to be in possession of the land, in dispute. The land in dispute consists of a holding of several plots amounting to 5 bighas odd. Rival claims to possession of this land were put forward by the petitioner on one hand and by the opposite party on the other. The main contention before me was as to whether the order of the Sub-divisional Magistrate dated 2nd November, 1916 should be set aside, on the ground that a person who was a party concerned within the meaning of Section 145, sub-Section (1) of the Cr PC, was not made a party to the proceeding. And, secondly, on the ground that the Sub-divisional Magistrate declined to hear a party within the meaning of sub-S. (4), S. 144. The facts which need be stated are the following:

2. It appears that Mr. Lakshmi Narayan Singh purchased on behalf of his two minor sons a proprietary share in the villages of Mahadeo and Din Chapra, and the holding in dispute is within the ambit of his purchase and has been in his possession as guardian of his minor children. The purchase by Mr. Lakshmi Narayan Singh purports to have been made on 26th May, 1910. The petitioners first party are servants or employees of Mr. Lashmi Narayan Singh and they are alleged to have been managing the pro-party for him, or so much of the holding of 5 bighas as remained in his possession. Admittedly a portion of the 5 bighas has been sub-let to tenants on the batai system. The parties of the second part or opposite party claim to be entitled to the lands in dispute under a kabuliyat dated 12th July, 1916. Accordingly as there was a likelihood of a breech of the peace, a report was made by the Police Officer to the Sub-divisional Officer and the Sub-divisional Officer instituted a proceeding under S. 145. Mr. Lakshmi Narayan Singh contends that he was a party concerned, being guardian of his minor children and that thus he should have been added with the petitioner as one of the parties of the first part, A written statement was filed on behalf of the petitioner on 24th August, 1916 and in that written statement it is clearly stated that Mr. Lakshmi Narayan Singh was a party concerned within the meaning of sub-S. (1) of S. 145; and the Magistrate might very properly have exercised his discretion at that stage and added Mr. Lakshmi Narayan Singh as a party. However, he did not do so; and he application was made to him to add Mr. Lakshmi Narayan Singh as a party. Thus the Magistrate had before him the representatives of the guardians of the minors who claimed to be in possession of the lands in dispute; and he also had before him the rival claim of the opposite party who claimed under a deed dated 12th July, 1916. Personally had I been in the position of the Sub-divisional Magistrate, I would have, on the facts disclosed by the written statement, added Mr. Lakshmi Narayan Singh as party because in my opinion, the written statement disclosed facts which established that he was a “person concerned.” However, the proceedings wont on without Mr. Lakshmi Narayan Singh being added as a party, and the question now is whether; Mr. Lakshmi Narayan Singh, not having been added as a party, the Magistrate had no jurisdiction to proceed with the case of acted in excess of his jurisdiction in not adding him as a party of the first part. It must be remembered that no application whatsoever was made at any stage of the proceeding prior to the hearing to have Mr. Lakshmi Narayan Singh added as a party; and although, as I have said, I would myself have added him as a party on the facts disclosed by the written statement, yet the facts that he was not so added does not to my mind affect the order of the Magistrate under Section 145 of the Cr PC. In the case reported as Krishna Kamini v. Abdul Jubbar(1) Hill, J., who delivered the judgment of the Court, says at p. 200:

“In certain instances indeed the Magistrate is authorized himself to take possession so that none of the parties concerned may have possession until a civil Court had decided upon the right. But be this as it may, questions of misjoinder or non joinder of parties do not ordinarily go to the jurisdiction. A Magistrate would no doubt be acting without jurisdiction if he entered upon his enquiry without having issued the orders contemplated by Cl. (1) of the section. But questions of whether A ought to have been added as being a person likely to be affected by the proceeding or B omitted as not being concerned in it or whether C was added at too late a stage and such like are questions of procedure by which in my opinion the jurisdiction of the Magistrate is not affected.”

3. Accordingly I hold that the failure to add Mr. Lakshmi Narayan Singh as a party to the proceeding did not involve an absence of jurisdiction in the Magistrate to hear the parties and arrive at a determination as to which of the parties were entitled to possession of the land in dispute. With regard to the second ground put forward by the petitioner that the learned Magistrate declined to hear Mr. Lakshmi Narayan Singh on behalf of the petitioners, the facts stated in para. 13 of the petition are dot denied by the Sub-divisional Magistrate. In fact the learned Magistrate states that the allegations made in para. 13 are substantially correct. When summarized these allegations are as follows: Mr. Lakshmi Narayan Singh applied to be heard on behalf of the parties of the first part as he considered that he might be able to afford some assistance to the Court in arriving at a conclusion. The Court however declined to hear him on the ground that it did not need his assistance in such a case as the Sub-divisional Magistrate had all the papers before him. Cl. (4), S. 145, throws upon the Magistrate, or Sub-divisional Magistrate, as the case may be, the obligation to hear parties; and whether there is documentary evidence before him or not, the section expressly gives to the parties a right of being heard; and no Magistrate whatsoever, Sub-divisional or otherwise, has any right to debar a subject from exercising his right of audience given to him by Statute. Accordingly I hold that it was a violation of the duty, imposed upon the Magistrate by law, to refuse to hear a party to the proceeding. On this ground and on this ground alone, I hold that the order of the Sub-divisional Magistrate must be set aside. I accordingly set aside the order of the Sub-divisional Magistrate dated 2nd November, 1916 as it is an order that has not been made in conformity with the requirements of the Statute and by reason of its not being made in conformity with the requirements of the Statute, the order pronounced is in excess of jurisdiction.

4. In the ordinary course I would remand this case for a reconsideration to the Sub-divisional Magistrate; but having regard to his judgment in this case, which I have carefully read, I consider it would be unsatisfactory to do so. I think that it would not be in the interest of justice to remand the case to him. It appears to me that the learned Magistrate has made up his mind strongly in favour of one side.

5. I accordingly transfer the case from the file of the Sub-divisional Magistrate of Sitamarhi to the file of the District Magistrate of Muzaffarpur and I direct him to add Mr. Lakshmi Narayan Singh as a party to the proceeding and to accept the evidence which has already been adduced, and upon that evidence and such other evidence which either party may adduce before the learned District Magistrate, to dispose of the case according to law. I further direct the District Magistrate forthwith to attach the property pending his decision in the main proceeding.

V.S/R.K

6. Case remanded.