1. This is a reference made by she District Magistrate of Gaya under Section 438 of the Cr PC, recommending that an order passed by the Sub-Divisional Magistrate of Aurangabad on the 9th March last under Section 145 of the Cr PC, be set aside as without jurisdiction. This recommendation was made at the instance of Inderdeo Singh, the third party in the proceedings, who was directed by the Sub-Divisional Magistrate not to go near the disputed land, two plots with an area of about 17 bighas, “till he succeeds in evicting the second party in due course of law”, the order in question having declared this second party to be in possession. In a previous proceeding under Section 145 of the Cr PC, which ended on 16th January 1936, Inderdeo Singh had been declared to be in possession of this very land, and the District Magistrate considers, on the authority of 10 PLT 6851 and 10 PLT 6892, that a second proceeding under the same section in respect of the same land is without jurisdiction. The previous proceeding under S. 145 was between Inderdeo Singh as first party and certain servants of the junior Bani of Deo as second party, and the order passed by the Magistrate on that occasion directed “the second party not to disturb him (Inderdeo) until he succeeds in evicting him in due course of law”. The junior Bani of Deo or her servants were the first party on the present occasion but did nob contest the case, and the second party, in whose favour the Sub-Divisional Magistrate decided the case, consisted of servants of the senior Bani. It appears that in the previous proceeding under S. 145, Inderdeo Singh's claim was supported by the men of the senior Bani.

2. On the terms of S. 145, the order recommended for revision does not seem to be at all beyond the jurisdiction of the Sub-Divisional Magistrate. He was satisfied from a police report that a dispute likely to cause a breach of the peace existed concerning the land, which lay within the local limits of his jurisdiction, and he followed the procedure prescribed by law and came to the conclusion that the second party and not Inderdeo Singh was in actual possession of the land. The recoinmendation of the learned District Magistrate is, however, based on the two cases from 10 PLT 685 and 10 PLT 689 one of which was decided by Jwala Prasad, J. in 1920 and the other by Wort, J. in 1929. At the date of the former of these decisions, orders under S. 145 were excepted from the revisional jurisdiction of the High Court, though they were subject to superintendence under Section 107 of the Government of India Act, 1915. The nature of this latter jurisdiction was among the questions dealt with by a Special Bench of this Court in 1 PLJ 336,3 where it was held that the High Court can and will interfere in cases of this kind:

Where the Magistrate has acted without jurisdiction or has exceeded his jurisdiction, that it will not interfere merely because there has been an irregularity in the proceedings or an erroneous decision on a question of fact or law, but that it can and will Interfere when there has been a material Irregularity which amounts to a refusal to exercise, or a usurpation of jurisdiction or which has prejudiced a party to the proceedings. In order to establish prejudice, it is not sufficient to show that there has been an erroneous decision on a question of law or fact, but it must be shown that the irregularity has prevented a party from having a fair trial (per Chamier C.J at page 840).

3. The learned Chief Justice further referred to the object of S. 145 as given in 30 Cal 1554 and observed that the section shows that:

The Legislature intends that the party dissatisfied with the order of The Magistrate should obtain a final decision of the question in dispute elsewhere. The High Court, therefore, as West, J. said in 7 Bom 3415 at page 863, will not promote uncertainty and restlessness by an over-nice scrutiny of proceedings that aim at promptness rather than refinement.

4. How little such a scrutiny, however, was in fact avoided will appear from the enormous number of reported decisions relating to the section. Jurisdiction to proceed under S. 145 was thus a matter of special importance before the amendment of the Code of Criminal Procedure of 1898 in 1923 by the omission of sub-s. (3) of S. 435, and the question was considered in several decisions of great authority. In 30 Cal 155 (referred to above) & Full Bench of the Calcutta High Court held that questions of misjoinder and non-joinder of parties are questions of procedure and do not go to jurisdiction under S. 145; and this has an obvious bearing on the question whether an order under the section “binds the whole world” and bars fresh proceedings not between the same parties. The contention of the petitioners in Krishna Kamini's case was that all persons claiming a right to possession should be brought in, in order to give the Magistrate jurisdiction to make the ultimate order for which the section provides, the argument being that as this order forbids all disturbance of the possession found by the Magistrate until eviction in due course of law, it would be opposed to the most elementary principles of justice that any one should be affected by it who had not been a party to the proceedings: see page 194 of the report. This contention was unanimously rejected by the Full Bench. Hill, J. whose judgment was concurred in by the majority of the Full Bench apparently did so on the ground that the disturbance of possession forbidden is disturbance by the party against whom the order is made: see page 161 where the point is dealt with and previous decisions discussed in the order of reference. Banerjee, J. who delivered a separate judgment was apparently inclined to think that an order under S. 145 or S. 146 is “binding on the whole world” in view of the provisions of sub-s. 3 of S. 145 and sub-s. 2 of S. 146, bub refrained from determining the question. The two decisions from 10 PLT 685 and 10 PLT 689, which the District Magistrate has cited, proceed on the provision, in sub-s. 3 of S. 145 requiring not only service of a copy of the Magistrate's initial order under sub-s. 1 upon such person, or persons as he may direct but also publication on the spot by being affixed to some conspicuous place at or near the subject of dispute. Hill, J. observed that this provision for the publication of a copy of the order was made

probably with the intention of guarding against collusive proceedings, as well as to give to any one interested, who may through an oversight or otherwise not have received a summons, an opportunity of coming in with his claim, and also to notify generally to all persons in the locality that a proceeding under the section has been set on foot.

5. But he did not say anything to suggest that the local publication was intended to make, or had the effect of making, the final order binding on persons other than the parties to the proceeding; and this is significant because of the contention set out by the learned Judge regarding parties being affected though they were not joined in the proceedings. The section, moreover, notwithstanding the provision about local publication, does not entitle any person who may consider himself “concerned” in the dispute to insist on being made a party; under sub-s. (5) persons “interested” may only show that no dispute exists or has existed. It is further to be noted that the Code does not even now require any publication of the final order passed under sub-s. (6) as one would have expected if the final order were in tended to be “binding on the whole world”. As regards the question of jurisdiction Hill, J. said:

On being satisfied of the existence of a dispute likely to cause a breach of the peace concerning land, etc., within his local jurisdiction, the duty, which is imperative, is cast upon the Magistrate of taking action under S. 145. The two essentials are that there should be a dispute likely to cause a breach of the peace and that the dispute should concern land, etc. …. Upon the existence of those conditions, and these conditions only, is the jurisdiction of the Magistrate in my opinion dependent….

6. This is jurisdiction in its strict sense of authority to entertain and deal with a case:

The extent to which the conditions essential for creating and raising the jurisdiction of a Court or the restraints attaching to the mode of exercise of that jurisdiction should be included in the conception of jurisdiction itself,

7. However, “is sometimes a question of great nicety” as was said in the order of reference and illustrated in 83 Cal 686. A Full Bench of the Calcutta High Court held in this last case that the failure to publish a copy of the initiatory order under sub-s. (1) of S. 145 at some conspicuous place at or near the subject of dispute, as required by sub-s. (3), does not deprive the Magistrate of the jurisdiction obtained when the conditions of sub-s. (1) are complied with. This decision again which, so far as I can ascertain, has never been doubted or dissented from, goes far to mdicate that the Legislature cannot be taken to have intended that the final order under sub-s. (6) “forbidding all disturbance of such possession until such eviction” is binding on the whole world. In the present case moreover, the final order of the Sub-Divisional Magistrate in the previous proceeding which I have already quoted actually directed the second party (the men of the junior Bani) not to disturb Inderdeo's possession and did not speak of “forbidding all disturbance, etc.” This by itself would appear to be sufficient to make it impossible to hold that the order operates or was even intended to operate against the men of the senior Bani or any other persons save the men of the junior Bani. It is not suggested that the order recommended for revision is bad on any other ground than the sup posed bar of the order in the previous proceeding. The reference could therefore have been discharged on the ground that the order in the previous proceeding was not in fact so expressed as to forbid the men of the senior Bani to disturb Inderdeo's possession or do anything else at all and could not (as it stood) preclude a determination of the question of actual possession on a later occasion as between these men and Inderdeo. I felt however that it would hardly be fair to the learned District Magistrate to dispose of the reference on this narrow ground. He only made the reference because the two reported decisions seemed to require it. I have accordingly considered it desirable to examine the general question of jurisdiction to draw up and dispose of a fresh proceeding under S. 145 and the operation of the final order in a former proceeding. Coming now to the decisions cited by the District Magistrate, there was in 10 PLT 685 a previous order under S. 145 in favour of a decree-holder auction-pur chaser against the judgment-debtor and others including one Sheo Tahal who subsequently brought a civil suit for a declaration of title and recovery of possession and failed. After this, there was a fresh proceeding under the same section between the decree-holder auction-purchaser as first party and Sheo Tahal and two others as second party. The Magistrate considered that the question of possession could be considered afresh as Kishin Mohan Singh, one of the second party, was not a party in the previous proceeding. Jwala Prasad, J. held that this position was untenable. He observed that sub-s. (3) was a new clause … intended to give notice to the persons interested in the subject matter of the dispute to come forward and be made parties to the proceeding. As far as the Magistrate is concerned, the question of possession is thus set at rest once for all, and thereafter he should maintain the order by taking action under Ss. 107 and 144, as the case may be, against persons interfering with the possession of the party declared by the Magistrate to be in possession. Therefore the proceeding in the previous case is binding upon the whole world.

8. The learned Judge did not refer to any previous authorities such as the decisions from 30 Cal 155 and 33 Cal 68, and four years later, in 5 PLT 458,7 he himself acted upon the view that an order under S. 145 would not be binding upon a party whose written statement the Magistrate had refused to admit. He did not more, over use the word “jurisdiction,” at all in the passage (quoted above) where he deals with sub-s. (3) and though the order of the Magistrate could only be, and actually was, set aside as “without jurisdiction,” it may well be that he did so either because he considered the proceedings in the Civil Court absolutely conclusive for the non-application of S. 145—see the decision in 3 PLT 8268 (where he gave an exposition of this view)—or because he had himself in the earlier proceeding directed the Magistrate to see that the possession of the decree-holder auction-purchaser “was not interfered with in any way”. Nor did the learned Judge refer to the several considerations which arose on the Full Bench decisions (as I have already shown) and which dearly militate against the view that because sub-s. (3) provides for local publication, therefore the question of possession is set at rest once for all and the final order under sub-s. (6) is binding on the whole world. In 10 PLT 689 the question was whether Jainath having succeeded in a previous proceeding under S. 145, the Magistrate was competent to proceed again under the same section as between Jainath on one hand and certain parties on the other who, to some extent at any rate, were different from those on the previous occasion. Wort, J. said 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 a 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 persons 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, 10 PLT 685 , that it is the duty of the Magistrate to uphold an order which has been made under S. 145 and for that purpose, if necessary, to bind over persons who interfere with the possession which has been declared by an order under Section 107 or any other provision of the CPC which is relevant for that purpose.

9. In this view the learned Judge set aside the order of the Magistrate [which unlike the order in 10 PLT 685 was not final order under sub-s. (6) but an initial or initiatory order under sub-s. (1)] as without jurisdiction. This view of jurisdiction under S. 145 seems on the face of it to introduce a qualification upon the use of the section which, speaking with the utmost respect for the learned Judge, is not to be found in the section itself. I have already referred to the essentials of jurisdiction under sub-s. (1) and indicated a view which is binding upon me: see further the observations of Jwala Prasad, J. him self in the Full Bench case in 2 Pat 94,9 his specially reported decision in 7 Pat 269,10 and a recent decision of Maopherson and James JJ. in 13 PLT 609.11

10. For a further examination of the matter, I cannot do better than refer to 56 Cal 290,12 another Full Bench decision of the Calcutta High Court in which a large number of rulings was overruled in which it had been held that actual possession in sub-s. (1) of S. 145 does not include such wrongful possession as that of a recent trespasser or of a judgment, debtor against whom possession has been delivered by the Civil Court to a decree-holder or auction purchaser and that a dispute ceases to be a dispute within the meaning of the section if the question as to the right to possession has already been decided by a Civil Court. Rankin C.J in his judgment in the case points out how the Magistrate is not “the Judge of titles or the bailiff of a Civil Court”, how the Civil Court, though by its decree it can give possession, does not attempt to keep the plaintiff in perfect peace—new causes of action requiring a further consideration of the facts—how the Magistrate is not there to give a form of execution that the Civil Courts cannot give, how the decree-holder, like anyone else, must maintain his own possession, once he has obtained it how even the rightful owner would be guilty of criminal trespass if he were to enter upon the land in the possession of a mala fide claimant with intent to intimidate or annoy him, and how

in older to maintain the peace and take effective action, the Magistrate has to deal with the facts: estoppels between the disputant are only in place on a question of light as between one party and another,

11. (while sub-s. (4) requires the Magistrate to decide the question of possession “without reference to the merits of the claims of any such parties to a right to possess the subject of dispute”). The learned Chief Justice spoke of the decree-holder because the question he was dealing with was how far a Civil Court decree ousted the jurisdiction of the Magistrate to proceed under S. 145. It seems to me however that the considerations referred to by him apply mutatis mutandis to the case of a party who has succeeded in a previous proceeding under S. 145, and that they militate against introducing the qualification that sub-s. (1) is to be available to the Magistrate only if there is no previous order under sub-s. (6) between any parties whom, soever. Moreover, assuming that there may possibly be something in the nature of an estoppel between the parties to the old proceeding, it is difficult to conceive how anything of the kind could apply to strangers to that proceeding. It is true that though a Magistrate has jurisdiction to proceed under S. 145 when the conditions laid down in sub-s. (1) are complied with, cases may occur where it would not be proper for him to do so. Rankin, C.J referred as an example to 27 CWN 171,13 where there was a previous order under S. 145 in favour of the first party, which was disobeyed by the second party's successor-in-interest. Instead of taking steps to enforce his previous order, the Magistrate drew up a new proceeding under S. 145; and the High Court held that this was an abuse of his powers to the mere harassment of the first party. Such exceptional cases apart, I cannot see any reason why the actual possession of a per son who was no party to a previous proceeding under S. 145 should be ignored when there is a dispute in fact about the possession, and why we should say that the Magistrate must not proceed under S. 145 if there was a previous proceeding under the same section—not necessarily between the same parties—and say so merely because there was the prescribed publication of the initiatory order at or near the subject of dispute. The Magistrate cannot guarantee keeping the successful party in peaceful possession, even as against the other party or parties to the proceeding, nor can he prevent that party from parting with the land and afterwards changing his mind; and it is by no means dear that he has any power to restore possession apart from S. 145(6) and S. 522. To invite him to do so indirectly by action under S. 107 or S. 144 is to ignore what has often been called the mandatory character of sub-s. (1) of S. 145, as for example in the cases from 2 Pat 94 and 7 Pat 269, already referred to; see also the passage from 30 Cal 155 already quoted.

12. Two cases besides that in 10 PLT 685 were referred to in Jatnath Pati's case by Wort, J., namely 1 PLW 64214 and 1 PLT 557.15 In 1 PLW 642 Mullick, J. found that an entry in the record of rights showing the possession of a mortgagor who had deposited the mortgage money to the credit of the mortgagee was not justified and did not amount to eviction in due course of law, and that a previous order under S. 145 was still in force and effect between the mortgagor and the mortgagee, “if that was so”, said the learned Judge, the learned Sub-divisional Magistrate had no jurisdiction to institute fresh 145 proceedings between the same parties …. It is not contemplated by the law that the successful party in a proceeding under S. 145 should be harassed by repeated proceedings under the same section at the instance of the unsuccessful party.

13. Whether the jurisdiction spoken of was jurisdiction in the proper sense (the learned Judge himself called it “jurisdiction in its limited sense” in 4 PLJ 34016) may perhaps be doubted; but the decision is clearly no authority for the view that an order under S. 145 is binding on the whole world, since the new proceeding was between the same parties as before. In 1 PLT 557 there was first a proceeding in respect of 15 bighas of land and afterwards a proceeding in respect of 78 bighas including the 15 bighas. Adami, J. referred to 1 PLW 642 and if in one passage of his judgment he apparently followed it, he immediately proceeded, dealing with the next contention, to say that:

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 145 proceedings.

14. The jurisdiction to come to a certain finding is a different matter altogether from the jurisdiction to proceed again under S. 145, and Adami, J. does not on the whole seem to have held definitely (as was done in Jainath Pati's case) that there would be no jurisdiction to proceed again at all. It was argued before Wort, J. that this also was a case in which the same parties were interested as in the previous proceeding under S. 145, and the learned Judge observed that the judgment was by no means clear in that respect, and he took it to be a decision to the effect that once proceedings with regard to land have been taken under S. 145 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. I have referred to the original record and find that the case before Adami, J. was in fact a case of a fresh proceeding between the same parties. None of the three decisions (all decided before 1928) which were referred to in Jainath Pati's case can thus be said to be a clear authority for the proposition that a declaration once made under S. 145(6) is, “without using the words in the strict technical sense”, binding upon all persons interested therein. It is therefore unnecessary to say whether they were cases of such gross error by the Magistrates that the learned Judges had to interfere and “justified their interference … by the erroneous proposition that a Magistrate had no jurisdiction” (per Rowland, J. in 13 PLT 17817). A similar observation was made by Mukherji, J. in 56 Cal 290 (see p. 355 of the report).

The High Courts during the Code of 1898–1923, when their ordinary power of revision was execluded, often used the word “jurisdiction” in order to make out a case foe interference.

15. The qualification “without using the words in the strict technical sense” was apparently intended to restrict the proposition that a declaration under S. 145(6) is binding on all persons to fresh proceedings under S. 145. For, recourse to the Civil Court is not barred, nor could the learned Judge have intended to lay down that all persons would be governed by the three years' limitation prescribed in Article 47: see, 45 All 306,18 52 Mad 787,19 AIR 1935 Lah 115,20 16 PLT 18321 and 17 PLT 72622, or that a declaration under S. 145(6) in favour of the complainant in a case of rioting and theft of crops will be conclusive against an accused per son who, with or without title, claims to have been in actual possession and grown the drops on the land. In AIR 1927 Cal 70123 the question actually arose whether an order under S. 145 was conclusive in a case of rioting with theft of drops. The Sessions Judge held that the accused could not but be trespassers in view of that order, which was in favour of the complainant and he therefore considered it useless to go into the question whether or not they were in actual possession at the time of the occurrence. Cuming, J. held that it was open to the accused to show that in spite of the order under Section 145 of the they were Actually in possession, and directed the appeal to be reheard by the Sessions Judge. Graham, J. was inclined to doubt whether the possession claimed by the focused could in any case be recognized as lawful possession as a defence to the charge, but he concurred in the order of remand. The two learned Judges were not agreed about the nature of possession to be recognized by the Court even in proceedings under S. 145 (see, 55 Cal 826 24) and Graham, J.'s view was ultimately rejected, and that of Cuming, J. endorsed by the Full Bench in 56 Cal 290. But if the proposition laid down in Jainath Pali's case was not intended to apply to such cases, it seems to convey little more than that a declaration under sub-s. (6) of S. 115 will bar a fresh proceeding under the same section, and thus to create an estoppel, in proceedings which the Magistrate is authorized to take in the interest of the public peace and to decide on the basis of the fact of actual possession and without reference to the merits of the claim of any of the parties to a right to possess the subject of dispute. It seems dear that the proposition rests on an even weaker foundation than what Rankin C.J nailed the doctrine—engrafted upon S. 145 by a number of decisions which can no longer be treated as binding—that because a decree has at some time been passed inter partes and possession has at some time been delivered thereunder, therefore there can be no dispute within the meaning of S. 145. With all respect I am unable to accept it. The reference is discharged.

K.B/R.K

16. Reference discharged.