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  • Richard Harington
  • Bart
  • Coxe, JJ.
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Smart Summary

Structured Summary of the Opinion (Rule under Section 145)

Factual and Procedural Background

This Rule was issued at the instance of the second party in a proceeding under section 145 of the Criminal Procedure Code. The Rule called upon the District Magistrate and the opposite party to show cause why the order made under section 145 should not be set aside having regard to the case of Makhan Lal Roy v. Baroda Kanta Roy (referred to in the text).

The material facts stated in the opinion are:

  • The first and second parties are members of the same family and reside in the ijmali family dwelling house, each occupying a specific portion of the house.
  • The dispute arose in relation to two plots (Nos. 1 and 2) within the premises; the bounds are recorded in the Magistrate's proceedings.
  • Each party claims to be in possession of the plots to the exclusion of the other.
  • The petitioner relied on the Makhan Lal Roy decision to argue that, because the land is ijmali (part of the family dwelling), no order under section 145 could be made.
  • The respondent argued that an order under section 145 can be made if it is found that either party is in actual possession of the disputed plots, regardless of whether the land is ijmali.

After consideration, the court discharged the Rule and upheld the Magistrate's order under section 145.

Legal Issues Presented

  1. Whether an order under section 145 of the Criminal Procedure Code can be made in respect of land that is ijmali (part of a family dwelling), or whether such land is excluded from section 145 by virtue of joint family ownership.
  2. Whether the Magistrate, when exercising jurisdiction under section 145, may investigate titles or is limited to deciding which party is in actual possession of the disputed area.
  3. Whether sub-section (6) of section 145 (referring to the party in possession retaining possession until evicted in due course of law) renders section 145 inapplicable to disputes between co-owners or joint tenants (i.e., whether a joint owner out of possession can be forever debarred from relief because he cannot evict a co-owner by ejectment).
  4. What, if any, is the proper scope and effect of the precedent Makhan Lal Roy v. Baroda Kanta Roy on the present proceeding under section 145.

Arguments of the Parties

Petitioner's Arguments

  • Relying on the decision in Makhan Lal Roy v. Baroda Kanta Roy, the petitioner contended that because the disputed land is ijmali (family dwelling land), no order under section 145 could be made.
  • The learned Vakil for the petitioner argued that section 145 applies only where parties have conflicting titles to the land and that sub-section (6), which preserves possession of the party in possession until evicted in due course of law, shows the section cannot apply where parties are jointly entitled (a joint tenant cannot evict another by ejectment).
  • The practical consequence asserted was that a joint owner out of possession would be permanently prevented from obtaining possession by reason of subsection (6).

Respondent's Arguments

  • The respondent argued that an order under section 145 can be made if the Magistrate finds that either party is in actual possession of the disputed plots, regardless of whether the land is ijmali or jointly titled.
  • Implicitly, the respondent relied on the Magistrate's factual finding of actual possession in favour of one party to support the order under section 145.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Makhan Lal Roy v. Baroda Kanta Roy That section 145 did not apply to certain family-dwelling (ijmali) situations — the cited case concerned huts recently built on land in the joint possession of parties and the Court there found the huts were not in the exclusive possession of either party, supporting a conclusion that an order under section 145 could not be made. The court considered the cited decision carefully but declined to accept that it established the broad proposition that section 145 can never apply to ijmali land. The court held that the cited case was distinguishable because it turned on a finding of actual joint possession; the present Magistrate had found actual exclusive possession by one party of a defined area, and that finding justified the order under section 145.

Court's Reasoning and Analysis

The opinion contains reasoned analyses by two judges (Richard Harington, J. and Coxe, J.). The court's reasoning can be summarized in the discrete steps and legal observations set out below, using only the material present in the opinion.

Richard Harington, J. — Analysis

  1. He examined the decision in Makhan Lal Roy and observed that that case dealt with huts recently erected on land in the joint possession of the parties; the judgment rested on the finding that the huts were on land not in the exclusive possession of either party. If neither party had exclusive possession, an order under section 145 could not be made. He therefore concluded the earlier decision did not necessarily support the broader rule urged by the petitioner (that section 145 can never apply to ijmali land).
  2. He rejected the petitioner's argument (made by the learned Vakil) that sub-section (6) of section 145 — preserving possession of the party in possession until evicted in due course of law — operated to make section 145 inapplicable where parties were jointly entitled. He reasoned this argument was fallacious because, while a joint owner out of possession cannot maintain a suit in ejectment against a co-owner, he can seek partition; if partition is obtained and a portion adjudged to him, that would amount to eviction of the other party from that portion in due course of law.
  3. He therefore concluded that subsection (6) did not prevent the application of section 145 where one party is in actual possession and the other is not; eviction from a portion can be achieved by partition rather than by ejectment.
  4. He read section 145 as requiring the Magistrate to concern himself with actual possession. Sub-section language and the form in Schedule V, Form XXII, indicate the Magistrate is to ascertain "the fact of ... possession" and determine, if possible, which party was in actual possession on the date of the order. Emphasis in the opinion is placed on "actual possession" as the operative inquiry.
  5. Applying that principle to the facts, he held that if the Magistrate finds that one party has actual possession of a defined area and the other party does not, the Magistrate can make an order under section 145 irrespective of the parties' titles (including where land is ijmali).
  6. He additionally observed a procedural point: the petitioner did not raise the objection that the land was ijmali at the outset and had litigated on the footing of alleged exclusive possession; having acquiesced in the hearing, the petitioner could not later say the proceedings were void because the land was ijmali.
  7. Although initially troubled by the wording of the Magistrate's order (which could be read as addressing title rather than possession), he inspected the body of the judgment and found express findings of actual possession. He held that these findings were sufficient despite the unfortunate wording in the last paragraph, and directed attention to the proper form in Schedule V, Form XXII for guidance. He therefore ordered that the Rule be discharged.

Coxe, J. — Analysis

  1. Coxe, J. agreed that the facts of the present case and the cited case appear indistinguishable on their face, but he distinguished the earlier case because the learned Judge in that case had found the parties were in actual joint possession.
  2. He agreed with the proposition that when property is actually in joint possession the section cannot apply because an order for joint possession would tend to encourage rather than prevent a breach of the peace.
  3. However, he held that where the property is not actually in joint possession, it is immaterial whether the parties have a joint title. If the Magistrate finds one party is actually in possession and the other is not, section 145 can apply.
  4. He reflected on the drafting of section 145 and Form XXII, noting the use of words like "evicted" and "ousted" in the text and form. He accepted his colleague's explanation that the presence of these words does not necessarily demonstrate an intention to exclude jointly held family property from the section. He observed that if that explanation were not accepted, one might have to regard the wording as a drafting oversight; in any event, he found it inconceivable that the Legislature intended to exclude from section 145 family property that is "most prolific of disputes leading to a breach of the peace."
  5. For these reasons, Coxe, J. concurred in discharging the Rule.

Note: Portions of the printed opinion as provided include several passages with illegible or missing words (represented in the source by sequences of question marks). The summary above confines itself to the clear and explicit legal reasoning and factual findings contained in the readable portions of the opinion.

Holding and Implications

Holding: The court discharged the Rule challenging the Magistrate's order under section 145. The Magistrate's order was therefore upheld.

Implications (as articulated in the opinion):

  • Direct effect on the parties: The Magistrate's order under section 145 stands; the petitioner’s challenge based on the land being ijmali was rejected and the Rule was discharged.
  • Scope of section 145 clarified by the court: The Magistrate's inquiry under section 145 is limited to the question of actual possession. If the Magistrate finds that one party is in actual possession of a defined area and the other party is not, he may make an order under section 145 irrespective of whether the land is ijmali or whether the parties have joint title.
  • The court emphasized that where property is actually in the joint possession of the parties, section 145 will not apply (because granting joint possession would tend to encourage a breach of the peace), but the mere fact of joint title or ijmali ownership does not by itself preclude the application of section 145 when actual exclusive possession by one party is found.

The court directed attention to the proper form and wording for orders under Schedule V, Form XXII, and noted that the Magistrate should frame orders to reflect that the decision turns on actual possession.

Show full summary ...

    Basanta Kumari Dasi-Second Party v. Mohesh Chandra Laha-First Part Opposite Party.

    Richard Harington, J.:— This Rule was issuedat the instance of the 2nd party in a proceeding under section 145 calling upon the District Magistrate and the opposite party to show cause why the order made under that section should not be set aside having regard to the case of Makhan Lal Roy v. Baroda Kama. Boy(1).

    2. The facts are that the first and second party are members of the same family and reside in the ijmali family dwelling house each occupying a specific portion of the house. The dispute which has given rise to a likelihood of a breach of the peace relates to two plots Nos. 1 and 2 which are within the premises, and are bounded as shown in the proceedings.

    3. Each party claims to be in possession of the plots in dispute to the exclusion of the other.

    4. For the petitioner it is contended, on the authority of Makhan Lal Roy's case, that as the land is ijmali no order can be made under section 145.

    5. For the respondent it is argued that an order can be made under the section if it be found that either party is in actual possession of the disputed plots, whether the land is ijmali or not.

    6. The case relied on by the petitioner was one which related to a dispute as to some huts which had been erected on land in the joint possession of the parties. The huts had been recently built: the judgment can be supported on the ground that the Court has found that the huts were built on land which was not in the exclusive possession of either party. If that be so and the huts were not in possession of either party to the exclusion of the other the order under section 145 could not be made.

    7. I am not prepared to hold that the decision involves the wider proposition contended for by the learned Vakil for the petitioner. No doubt, there are expressions in the judgment which support the proposition but it is not necessary as a ground for the decision.

    8. The learned Vakil argued that the section was only applicable where the parties had conflicting titles to the land in dispute, and that sub-section (6) providing that the party in possession was to retain possession until evicted in due course of law was conclusive to show that no order could be made when the parties to the dispute were jointly entitled to the land as one joint tenant could not evict another; the party out of possession, therefore, would be for ever debarred from getting possession of the land to which he was entitled jointly with the other party.

    9. In my opinion this argument is a fallacious one. No doubt, the party out of possession could not maintain ejectment against his co-owner in possession.

    10. If he sued claiming a declaration of his title and joint possession, and obtained a decree, he would not under that decree be able to evict the other party.

    11. But if he sued for partition, established his title to a share of the property in dispute, got his share partitioned by metes and bounds and adjudged to him that would, in my opinion, amount to an eviction of the other party in due course of law from that portion of the lands in dispute to which the plaintiff ??? found entitled.

    12. It is a fallacy, therefore, to say that subsection (6) makes it impossible to apply section 145 in cases where the parties are jointly entitled to the land because a joint owner out of possession cannot evict a joint owner in possession. He can evict him from his share of the lands not by a suit in ejectment but a suit for partition.

    13. I am disposed to think that sub-section (6) was purposely drafted as it is so as make it impossible for a joint owner out??? possession to gat put in under a decr??? giving him joint possession, as such a pr??? ceeding would most probably bring about the very breach of the peace which section 1??? is designed to prevent.

    14. On reading the terms of section 145 think it is clear that the question ??? the parties have a title to possession ??? or have a title to possession separately be considered. Under sub-section ??? Magistrate is to call on the parties ??? to their claim “as respects the fact of ??? possession” and the Magistrate, “??? reference to the claims of such partie ??? right to possess the subject in d??? …………shall…………if possible de de??? ther any and which of the parties was ??? date of the order in such possession ??? said subject”.

    “Such possession” can only mea??? “actual possession” referred to in section (1).

    15. The question for the Magistrate is, ??? fore, actual possession and actual possession only co sharers in an estate ??? express or tacit arrangement be ??? separately in actual possession of spe??? and demarcated portions of the estate.

    16. What is there then to prevent the cation of the section?

    17. How can the question whether the land is ijmali or partitioned affect the question who is in actual possession of it? Take a hypothetical case; suppose A. and B. are jointly entitled to possession of a defined plot of ground. A. alleges he is in possession to the exclusion of B.B alleges he is in possession. They are entitled to joint possession: if the Magistrate finds that both A, and B. are actually enjoying the joint possession to which they are entitled then, of course, he cannot make an order under section 145 in favour of one against the other but if he finds that one is in actual possession and the other not in possession, I cannot see why he should not make an order under section 145. There is nothing in the form of the order given in Schedule V, Form XXII, rendering it in-applicable.

    18. In short, in my view, the question whether the parties have a joint title to the land is “one which the Magistrate cannot investigate under section 145. The only question for him is whether either party has actual possession and if he finds that one party has actual possession of a defined area, and the other party has not, he can make an order irrespective of the titles of the parties.

    19. In my opinion, therefore, the circumstance that the lands were ijmali does not affect the case.

    20. ???here is another reason why this ground ??? not be allowed to prevail. The ??? was not taken by the petitioner at the ???itset,

    21. Having alleged an exclusive possession, ??? cquiesced in the hearing of the case on the footing he cannot now be heard to sa??? that the whole proceedings were bad be se the land is ijmali,

    22. ??? notwithstanding my view on the points argued I felt at first some difficulty in maintaining the order. The Magistrate has contrived to word it in such a way as to look as though he had considered title to possession instead of actual possession.

    23. But a perusal of the body of the judgment shows that he directed his mind to the fact of actual possession he finds in express terms actual possession and that is sufficient, notwithstanding the somewhat unfortunate wording of the last paragraph.

    24. The Magistrate's attention is directed to Schedule V, Form XXII, which shows how an order ought to run.

    25. The Rule must be discharged.

    Coxe, J.:— This was a Rule to show cause why an order under section 145, Criminal Procedure Code, should not be set aside having regard to the decisions in the case of Makhan Lal Roy v. Baroda Kanta Roy.

    26. So far as the facts alone are concerned this case and the case cited seem to me indistinguishable. In both cases it was common ground between the parties and it was found by the Magistrate that the lands in dispute were not in the joint possession of the parties. In both cases, however, it was found that the land in dispute belonged to the family dwelling house of the parties and in the case cited the learned Judge held that section 145 did not apply to such a case. Perhaps I may say as one of the Judges that issued this Rule, that we granted it in order that the case cited might be carefully re-considered. Its importance is beyond question as no property is so apt to occasion a breach of the peace as the property of an undivided or incompletely divided family.

    27. Now I fully agree that when property is found as a fact to be, not constructively but actually in the joint possession of the parties, the section cannot apply. An order for joint possession would obviously rather encourage than prevent a breach of the peace. But when it is found that the property as a fact is not actually in joint possession it appears to me immaterial whether the parties have a joint title to it or not. The case cited, however, can, in my opinion be distinguished because the learned Judges in that case found distinctly that the parties were in joint possession. Speaking with the utmost respect I cannot agree that this Court was entitled under the Charter to arrive ??? that finding in opposition to the finding on fact of the Magistrate and the pleadings of the parties or indeed in opposition to the finding of the Magistrate alone. But having arived at that finding the rest of the decision was inevitable. It has been argued that the use of the word “evicted” in the last sub-section of section 145 and of the word “ousted” in Form XXII shows that the section was not intended to apply to property to which the parties had a joint title inasmuch as in such a case the remedy of the defeated party would be a suit not for eviction but for joint possession. My learned brother has pointed out that this does not necessarily follow and has explained the introduction of the word evicted” into the section. Unless this explanation is accepted it appears to me that use of the words “evicted” and ousted” must be a mere oversight in drafting. It must be admitted that so slight a slip might be made. On the other hand it is inconceivable that the Legislature really intended to exclude from the operation of section 145 the very property which is most prolific of disputes leading to a breach of the peace.

    28. I agree, therefore, to discharge the Rule.

    29. Rule discharged.

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    Comments

    Basanta Kumari Dasi-Second Party v. Mohesh Chandra Laha-First Part Opposite Party.
    (Apr 10, 1913)