NARAYANMAL MAHESHRI Vs. LALIT GIRI
HIGH COURT OF GAUHATI
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D.M.SEN, J. -
(1.) THIS is an application under Section 439, Criminal Procedure Code against an order passed by the learned Sub -Divisional Magistrate (Judicial), Kokraihar dropping certain proceedings under Section 145, Criminal Procedure Code.
(2.) SINCE the learned Magistrate could not himself decide as to which of the parties were in possession of the disputed land, he referred the matter to the Court of the learned Munsiff, Kokraihar under Section 146(1) of the Criminal Procedure Code. The learned Munsiff came to the finding as under :
"From the above discussion it is palpably clear that the parties are in joint possession of the disputed land in question."
In other words, the learned Munsiff held that the disputed land was not in exclusive possession of any of the parties, but was possessed jointly by both the parties. Sub -Section (1 -B) of Section 146 of the Criminal Procedure Code provides that a Magistrate must on receipt of the decision of the Civil Court dispose of the proceeding under Section 145, Criminal Procedure Code in conformity with that decision. In the instant case, the learned Magistrate's order dated 17.2.1973 is as under :
"Received back the reference sent to the learned Munsiff vide Memo No. C/103 dated Kokraihar, the 16th February, 1973. According to the finding of the learned Munsiff none of the parties having been found in possession of the disputed land, the proceeding is dropped under Section 145, Criminal Procedure Code."
Although this order is not strict conformity with the decision of the Civil Court, it substantially follows the spirit thereof. On the basis of the decision of the Civil Court that the disputed land was in joint possession, the learned Magistrate dropped the proceedings under Section 145. Criminal Procedure Code.
(3.) THE question that falls for decision in this application under Section 439, Criminal Procedure Code is whether after the receipt of a finding by the Civil Court under Section 146, Civil Procedure Code that the disputed land is in joint possession of both the parties m dispute the learned Magistrate had any alternative but to drop the proceedings under Section 145, Criminal Procedure Code.
Mr. J.N. Sarma, the learned counsel for the petitioner, has invited my attention to various decisions of several High Courts in this matter. He has drawn my attention to a decision of the Mysore High Court in Hanumappa v. Kondappa, AIR 1964 Mys 195 : (1964) 2 Cri LJ 319 where N. Sreenivasa Rau, C.J., who delivered the judgement of the Court, had held as follows :
"If a Civil Court finds that both the parties have been in joint possession, then the Magistrate has to drop the proceedings and he has no jurisdiction to attach the property under Section 146 so as to be effective after his final order." In this case, their Lordships had discussed almost all the available cases on this matter and had come to the above finding. I very respectfully agree with the ratio decidendi of this case that when it is found that both the parties are in joint possession of any disputed land, the learned Magistrate cannot put any particular party in possession thereof, and accordingly he cannot but drop the proceedings under Section 145, Criminal Procedure Code. It must be noted that Section 145, Criminal procedure Code is a preventive power in the hands of the Magistrates and the question of its exercise arises only where there is a dispute as regards the possession of any plot of land. Where it is found that both the parties are in possession of the land in question, naturally one party cannot be placed in possession to the exclusion of the other and therefore the proceedings under Section 145, Criminal Procedure Code must come to an end.
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