(1) The dispute in this case relates to land measuring 7 kanals and 12 marlas comprised in Khasra Nos. 753 = eight marlas, khasra No. 763. = 2
kanals and 2 marlas, 809 3 kls. and 3 marlas, 812/min 1 kanal and 14 mar las and Khasra No : 958 s 2 marlas situated in village Dadsar Tehsil
Tral. The disputed land was the subject of proceedings under section 145 Cr. P. C. in the court of Executive Magistrate (A. C. R.) Pulwama. The
disputants were respondent No : 1 (hereinafter called the 1st party'), on one side, and the petitioners and respondents 2 to 4, (hereinafter called'
the second party') on the other. The case of the first party was the disputed land was in the personal cultivation of his brother, Ghulam Hassan
Sheikh and that, without any right and title, the second party was making repeated assaults in order to oust him forcibly from the land. On the other
hand, the case of the second party was that the land was in the personal cultivation of Mst. Shahmali since long and that Ghulam Hassan Sheikh
had no right or title over it. By his order dated 19.11.1979, the learned Magistrate held that the disputed land was in the personal cultivation of
Ghulam Hassan Sheikh and not Mst. Shahmali. On this finding, he declared Ghulam Hassan Sheikh to be entitled to the possession and forbade
interference with the same. Aggrieved by the order, the second party went in revision to the District Magistrate Pulwama but could not succeed.
The second party has now come up in further revision to this court.
(2) Appearing for the petitioner, Mr. Qayoom urged the following points :
That the preliminary order is defective and does not conform to the requirements of law and consequently the subsequent proceedings including
the final order are without jurisdiction ;
2. that the learned Magistrate has not considered the affidavits and documents produced by the second party and as such the order is not
sustainable in law ;
3. that the learned Magistrate has nowhere found that Ghulam Hassan Sheikh was in actual physical possession on the date of making of the
preliminary order and as such the order is bad in law ;
4. that, in any event, the possession of Hassan Sheikh was permissive and that he was holding the same on behalf of Mst. Saja and Mst Shahmali
and as, such, the proceedings under section 145 Cr. P. C. are incompetent.
(3) Dwelling on the first point, learned counsel contended that the Magistrate gets power and jurisdiction to initiate proceedings under section 145
Cr. P. C, provided that he is satisfied about two things. Firstly that a dispute exists as regards possession of land or water within his jurisdiction.
Secondly that such dispute is fraught with danger of breach of peace. The trial Magistrate has recorded his satisfaction on the second point but not
on the first point and as such the proceedings are stillborn. In order to appreciate this contention it will be necessary to give a few facts. The
preliminary order was recorded on 22.9.1979. The learned Magistrate has passed three separate orders on that day; one in the main application
which is a composite order under subsection 1 and 4 of section 145 Cr. P. C. and the other two orders on the related applications. There is
however no dispute that the proceedings are founded upon the order which, I have and is a composite order under subsections 1 & 4 of section
145 Cr. P. C. It is a fairly long order. Prefaced to the order are the alleged facts. Then comes the consideration part. That part is sub divided into
two parts. The first part directs adinterim attachment of the disputed land. The direction as regard notice follows reference to the available material
and satisfaction of the Magistrate thereupon that there is imminent danger of breach of peace on spot. The directions as regards adinterim
attachment follows the statement that the court is not only satisfied that there is breach of peace on spot but also that such danger of breach of
peace has arisen from a dispute as regards the possession of land in question between the parties The argument of the learned counsel for the
second party is that the first part of the order which constitutes the preliminary order under subsection (1) of section 145 Cr. P. C. does not
include satisfaction of the Magistrate on the point that a dispute existed between the parties as regards the possession of the land in question and as
such the order is defective, so much that subsequent proceedings are vitiated and without jurisdiction. I am unable to accept this argument. There
can be no dispute with the principal that it is the duty of the Magistrate to record in writing in clear terms that a dispute exists as regards land and
water within his jurisdiction and that the dispute is such as is likely to cause breach of peace and the grounds of his being so satisfied. But if order is
a composite order under subsections 1 and 4 and the Magistrate records his satisfaction on both these points at one place of the other, the
proceedings cannot be said to be without jurisdiction. For, in any such case the defect can be said to be more of form than of substance, and such
defect cannot go down to the root of the matter and render the proceedings invalid. The first point fails.
(4) Dwelling on the second point, learned counsel contended that the word perused' used in subsection 4 of section 145 implies detailed and
critical examination and accordingly the magistrate was required to apply his mind to the affidavits one by one and give reasons for accepting or
rejecting the same. He has not done so and not even considered the judgment passed by Asstt. Commissioner Anantnag on 9.6.1978 field by the
second party. He contended that the order was therefore illegal and without jurisdiction. For this he placed reliance on the reported decision in Mt.
Sarfi vs. Mt. Sugo. AIR 1962 Patna 253 and Murali Patel v. Purusottam Bhari and another AIR 1965 Orisa : 208 as also on the unreported
decisions of this court in Mohammad Sidiq vs. Mohammad Sultan Mandoo (Cr. revision No: 35 of 1973 decided on July 9. 1974) and Pushkar
Nath vs. Ghulam Mohammad Wani and ors (Cr. reference No : 3 of 1979 decided on August 3, 1979). The principal of these decisions is that the
Magistrate must through the affidavits one by one ; apply his mind to each one of them and, on the facts and circumstances of the case and on
documentary evidence on record, say if it can be accepted or rejected. If however, there exists any ground for accepting or rejecting an affidavit
and that ground equally holds good in case of other affidavits also then certainly in that case the Magistrate can give that one ground for accepting
or rejecting the affidavits of more than one and he cm take them all in one lump and consider them together. It should appear from the order that
the Magistrate has applied his mind and considered the affidavits, The crucial question is whether the order in the present case satisfies the test.
The material portion of the order reads thus:
I have gone through the record of the case closely, vide AIR 1958 Punjab 47 the magistrate acting under section 145 Cr. P. C, has not to go into
the merits or demerits of the right or title but should only pass final orders as to the actual possession which has been defined by the Hon'ble High
court of Kerala vide AIR 1964 pages 308, 109. It means that possession of the person who has foot on the land, who is ploughing it, sowing and
growing crops in it entirely irrespective of whether he had any right or title to possess it. From the Intikhab Girdawari and the affidavits it is clear
that Hassan Sheikh has foot on the land who has sown seeds and grown crops and whether he had any right on this land to possess the same is not
to be determined in proceeding under section 145 Cr P. C.
(5) Learned Counsel took me through the affidavits field by the parties. The affidavits field on the side of the first party generally state that the land
in dispute is in personal cultivation of Hassan Sheikh. On the ether hand, the dependents of the affidavits field on behalf of the second party
generally state that the possession belongs to Mst. Shahmali. The Magistrate has related them to the enterics in the Girdawari and concluded that
Hassan Sheikh has foot on the land who has sown seeds and grown the crops over it. The judgement is no doubt cryptic but the inference is
irresistible that the Magistrate has compared the two sets of affidavits with the entries in the Girdawari and preferred the affidavits filed on behalf of
the 1st party which agree with the entries in the Girdawari. The entries in Girdawari are undisputedly in favour of the first party and indicate that
Hassan Sheikh is in actual possession of the disputed land. It is true that the Magistrate has acted miserly and chosen to be much too brief, but that
does not derogate from the fact that he has applied his mind to the affidavits, compared the rival versions with the entries in the Girdwari and
drawn his own conclusion in the matter. In the circumstances it is difficult for me to agree with the learned counsel that the Magistrate has not
considered the affidavits. Sofar, as the judgment dated 9.6.1978 passed by the Assistant Commissioner (Revenue) is concerned, it does not have
any bearing on matters in controversy in the present case. That was an application under section 56 of the Tenancy Act field by Hassan Sheikh in
order to stop interference with his possession by Hassan Mirkha and several others not including Mst. Shahmali. The Assistant Commissioner held
that in the absence of any relationship of landlord and tenant between the parties, the application was not cognizable by a revenue court. The
petitioner's remedy lay in a civil/criminal court Incidentally, the Assistant Commissioner made the following observations:
Almost in his all the applications as well as in his statements and objections, field by Hassan Sheikh it has been admitted that the ownership of the
land vests with Mst Shahmali and others with whom no controversy or dispute is stated to exist which would have necessitated to plead them as
party to the case. It has been made to understand that Mst. Saja, Mst. Saraand Mst. Shahmali have initially been putting up jointly with Hassan
Damad and Mst. Shahmali has been minor daughter during those days In the capacity of the husband of Mst. Sara and soninJaw of Mst. Saja the
applicant Hassan Sheikh seems to be part and parcel of this family. In such circumstances the cultivation through Hassan would mean the personal
cultivation of Mst. Saja as well as that of Mst. Sara and tenancy benefits as claimed by Hassan for the lands in question does not seem proper. So
far Mst. Shahmali is concerned she is the daughter of Mst. Saja and sister of Mst Sara and in the eye of law the possession of one coheir can be
considered the possession of all coheirs particularly those who are minors. So as such I am of the opinion that in view of the relationship and
relations explained above the cultivation even if through the applicant Hassan Sheikh would have meant nothing but the personal cultivation of the
owners.
(6) The contention of the learned counsel is that the learned Magistrate has not taken into consideration those observations. Those observations
are in the nature of obiter dicta Leave that alone, they have obviously no bearing on the controversy involved in the present case which, on the
pleadings of the parties raised the limited question whether it was Hassan Sheikh or Shahmali who was in actual physical possession of the
disputed land on the relevant day and not the question whether there was any community of title between them. The judgment was therefore of no
consequence in the present controversy. Its non consideration would not vitiate the order. For, the principle is well settled that the
nonconsideration of nonvital evidence would not constitute an error of jurisdiction. The second point too fails.
(7) Coming to the third point it must be conceded that the magistrate has nowhere specifically found that the second party was in possession on the
date of the preliminary order but it was not necessary for him to do so in the present case. For, it was nowhere pleaded in the pleadings that there
was any possession or dispossession within two months preceding the date of the preliminary order or event at any time prior or subsequent
thereto. The parties claimed uninterrupted possession to the exclusion of one another. In the circumstances the finding of the learned Magistrate
that Ghulam Hassan Sheikh has foot on the land and has been ploughing the land and growing crops over it must be construed as a finding that the
first party was in actual physical possession on the date of the preliminary order. The third point too fails.
(8) This brings me to the last point. It was nowhere pleaded by the second party in their objections to the application under section 145 Cr. P. C.
that Hassan Sheikh was holding the land of behalf of Mst. Shahmali and Mst. Saja On the other hand, their defence was that Shahmali and not
Hassan Sheikh was in actual physical possession of the land. Accordingly if the Girdawari shows that Hassan Sheikh is holding possession an
behalf of Mst. Shahmali and Mst. Saja the second party cannot make it a ground for the contention that the possession is permissive and as such
proceedings under section 145 Cr. P. C. are incompetent. For, a party cannot be allowed to set up at the trial, muchless, at the revisional stage a
case which, though disclosed in the evidence, has not been set out in the pleadings. In the view it will not be necessary for me to consider the
question whether proceedings under section 145 Cr. P. C. would be competent where the possession is permissive. I leave that question open.
The last point also fails.
(9) The result therefore is that this revision fails It is dismissed accordingly.
