1. This Rule was granted to show cause why the order of the Sessions Judge, dated the 9th April, 1929, should not he set aside and the case referred to this Court for the purpose of quashing the proceedings taken by the Sub-Divisional Officer under s. 145 of the Code of Criminal Procedure on the 4th March, 1929.
2. The short point taken in the case is whether, having regard to the fact that on a former occasion proceedings were taken under s. 145 of the Criminal Procedure Code and an order passed in favour of Jainathpati the first party to these proceedings, the proceedings now proposed by the Sub-Divisional Officer were contrary to law. In the first proceedings taken under the section, that is in 1925, Nandram with Ramlal and Sitaram were the first party and Jainathpati, Rangu Singh and Dahu Singh with others including one Ramlakhan Prasad vere second party. It is contended by Sir Ali Imam on behalf of the first party that the order of the Sub-Divisional Magistrate is without jurisdiction as the order declaring the possession of his clients once having been made must be maintained and it is not open to the Magistrate to enter upon a further inquiry on the question which came before the Court in the former proceeding, that is to say, the possession of the land in dispute.
3. A. number of authorities were relied upon by Sir Ali Imam's clients before the learned Sessions Judge and the learned Sessions Judge differentiates them on the ground that in almost all the cases, if not all, there was this distinction. In those cases the same parties were concerned, whereas in this case the parties to some extent at any rate are different.
4. Before me the case of Bajit Lal Pathak v. Harakh Singh(1) is strongly relied upon. In that case with respect to 78 bighas of land prcceedirgs were taken under s. 145 of the Criminal Procedure Code and it was found that as regards 15 bighas there had already been proceedings and that one of the parties in the proceedings then before the Court had been declared to be in possession of the 15 bighas. In the judgnent Mr. Justice Adami relied upon the case of Krishna Dayal Gir v. Sheikh Nirmali(2) in which Mr. Justice Mullick held that when a party had been declared to be in possession as a result of proceedings under s. 145 fresh proceedings under the same section cannot be starled against him unless it can be shown that the order was either vacated in due course of law or possession had been surrendered, and as a result of that case on the argument then before Mr. Justice Adami, he held that so far as the 15 bighas of land were concerned the order was without jurisdiction.
5. It is contended by Mr. Nandkeolyar on behalf of the oprosite party in this case that that case also was a case in which the same prties were interested; but I must say that the judgment is by no means clear in that respect and it seems to me th;.t it is a decision to the effect that once proceedings with regard to land have beentaken under s. 115 and possession declared, then it is the duty of the Court to uphold that order and not to enter upon any further inquiry under that section.
6. Another case which is relied upon by Sir Ali Imam is the case of Raghunandan Pandey v. Kishen Mohan Singh(3) which is not officially reported but appears in the All India Reporter, 1922 at page 210. In that case Mr. Justice Jwala Prasad decided to the same effect as the decision which I have already referred to with this exception that Mr. Justice Jwala Prasad is reported to have said that the learned Magistrate was wrong in coming to the conclusion that by reason of the fact that the parties were different he was entitled to enter into a second investigation as regards the same plot of land, that is to say, on the question of possession.
7. In the course of the argument s. 145 was relied upon, particularly sub-s. (3). Sub-s. (3) provides that “a copy of the order (that is to say the order which is made by the Magistrate) shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.”
8. It is argued that the order passed by the Magistrate under this section is something in the nature of a judgment in rem. It is obvious that that description cannot be accurately applied to an order under s. 145, otherwise it would be necessary to hold contrary to the provisions of the section itself, that the matter as to possession was res judicata and could not be agitated in any proceeding at any subsequent date. The section, as is well-known, provides however, that this question may be agitated in a Civil Court; but I am in agreement with the argument to this extent that the intention of the Legislature is that the order made by the Legislature should have reference rather to the subject-matter of the dispute than to the persons who are engaged therein, that is to say, that once the declaration has been made as regards possession of the land it is without using the words in the strict technical sense, binding upon all persons interested therein. If that be so, then it seems to me that once the order of the Magistrate has been made as regards this plot of land, then it is for the person whether he be a party to the proceedings or not who disputes that possession, to take proceedings in a Civil Court. It is stated in the judgment to which I have already referred that it is the duty of the Magistrate to uphold an order which has been made under s. 115 and for that purpose if necessary to bind over persons who interfere with the possession which has been declared by an order under s. 107 or any other provision of the Code of Criminal Procedure which is relevant for that purpose. In my judgment, therefore, in this case the learned Sub-Divisional Magistrate in making the order, which he did, of the 4th March, 1929, was making an order which was without jurisdiction, and for that reason in my opinion, this Rule should be made absolute and his order get aside. If it is necessary for the purpose of keeping the peace then proceedings may be taken by the Magistrate under the Criminal Frccedure Code.
9. The Rule is made absolute.
10. Rule made absolute.