Bholanath Singh v. Wood

Pratt and Handley, JJ.:— The parties to this ease under section 145 of the Criminal Procedure Code are J.B Wood, Manager of the Nawab of Murshidabad, first party, and Bholanath Singh, second party. The latter holds from the Nawab an istemrari settlement of Kal ma Pukhuria mouza, and this case relates to the possession of some 6,000 bighas of jungle adjoining that mouza. By his written statement Bholanath Singh does not claim any rights in the nature of an easement or customary right, but avers that the jungle is part of his istemrari property, and that he has always possessed it as such.

2. The Nawab claims the jungle as khas, and on this the Magistrate observes “one thing is clear, viz., that all jungles in the pergana are Mas. This is admitted by the second party. No jungle is settled with any tenant.”

3. In the result the Magistrate finds that the second party had encroached on some of the jungle close to his mouza, and that he may have cut a few trees, but that any extensive encroachment would have been at once noticed and resisted. He concludes that “in the main the first party has really been in possession of the major portion of the jungle lands in dispute, “and as the extent of the second party's encroachment was uncertain and indefinite, he adjudges possession of the entire jungle to the first party.

4. The points, raised before us on behalf of the second party are—

(i) that the Magistrate had no jurisdiction to make the manager a party instead of his employer the zemindar.

(ii) that on his findings the Magistrate was bound either to apportion the possession of the jungle, or, if unable to do so, to attach the whole under section, 146. of the Criminal Procedure Code.

5. As regards the first contention we are of opinion, that the course adopted by the Magistrate was a mere irregularity, or at most an error of law which does not affect his jurisdiction. That was the view expressed by some of the Judges in the Full Bench case of Dhondhai Singh v. Follet (1); and though that case referred to the manager of a landlord beyond the jurisdiction, the observations to which we allude are general enough to cover a case like the present one.

6. As regards the second point, we think that, though the Magistrate's reasoning may not be altogether correct, his order is right and should not be interfered with. It is found that the jungle is the khas property of the Nawab, and, therefore, as the second party claims no easement or customary right, any intermittent encroachment on his part would not affect the title or possession of the superior landlord, as was stated in Framji Cursetji v. Goculdas Madhowji (2): “In this country such a user excites no particular attention. It is neither meant to denote, nor understood as denoting, a claim to the ownership of the land.”

7. Here it was easy for the second party to cut a few trees or filch some underwood without attracting notice, and such acts would not oust the landlord's possession, as was observed by Lord Macnaghten in Agency Company v. Short (3): “The possession of the intruder, ineffectual for the purpose of transferring title, ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner.

8. The result is that the Rule must be discharged.

9. Rule discharged.