Syed Zafar Ahsan and Others Vs Babu Jugeshwar Bux Roy and Another

@JUDGMENTTAG-ORDER

Rowland, J.@mdashThis is an application in revision by the second party in a proceeding u/s 145 against an order of the Magistrate declaring possession in favour of the first party. The proceeding related to lands of the Deogaon Estate of which Babu Gopal Bux Roy, first party No. 2, is proprietor. Petitioners 2 to 7 are persons in whose favour the proprietor had made a grant of a mukarrari lease of eight annas in the estate at a time when neither of the parties were in possession. The proprietor Gopal Bux Roy sued to recover possession on a declaration that the principal defendant of that suit was an impostor. In order to finance this litigation, the mukarrari lease was granted to the members of the second party. The suit failed in the first Court, but on appeal was decreed by this High Court on 19th August 1936, the final order being that Gopal Bux Roy and the present petitioners 2 to 7 should recover joint possession of the entire Deogaon estate, their shares being one-half and one-half. The lower Court in execution issued on 12th March 1937, a writ of delivery of possession which is said to have been duly executed. The writ was in favour of both parties. The petitioners appointed managers one Mr. Rashid and then a Mr. Qayum who apparently did not succeed in collecting any rents or exercising any sort of effective possession in the estate.

2. They then on 15th May 1938 appointed a new manager, Mr. Syed Zafar Ahsan who is petitioner 1 and who, it is said, began to make collection, the earliest rent receipt purporting to be issued by him being on a date 27th May 1938. The present proceedings started with a report by the Sub-Inspector of Police of P.S. Chatrapur, dated 7th October 1938, as to disputes regarding collection of rents and grazing fees in his elaka and a similar report dated 24th October 1938, from the Sub-Inspector of Police of P.S. Harihargunj. The Magistrate called for written statements from both parties on 9th November 1938. There was some formal amendment to the proceedings on 21st November 1938, and they were transferred for disposal on 27th January 1939 to Mr. P.C. Mazumdar, the Magistrate, who, eventually disposed of the proceeding and passed the order now under revision.

3. The Magistrate has written a long and careful judgment and has dealt with the evidence of possession on both sides. The points taken in revision are that as between parties entitled to joint possession of property, Section 145 is not the appropriate procedure and the Magistrate erred in law in proceeding under that Section. Secondly, its-is said that when possession was delivered by the Civil Court, it was the duty of the Magistrate to uphold that possession. Other grounds arise out of ''the Magistrate''s appreciation of the evidence in the case which, it is said, has been vitiated by certain errors.

4. As to the first point, the argument is not well founded; although certain of the earlier decisions may seem to favour it, it has been negatived by a Division Bench of this Court in Kesheo Prasad Singh Vs. Ram Baran Chaubey, It was there held to be wrong to graft limitations upon the enactments which the Legislature has not placed there, that a case in which one party claims exclusive possession while another party claims to be in joint possession along with them is no less a question of disputed actual possession than if each party claimed exclusive possession of the entire area. As to the next point, the argument does not seem to be sustainable in face of the decision of the Pull Bench of the Calcutta High Court in Agni Kumar Das Vs. Mantazaddin and Another, which has been, followed in a series of decisions in this Court. The Magistrate has correctly appreciated: the law which is that the Criminal Court ought to hold that if on a given date the plaintiff has been put into possession by the Civil Court then on that date the plaintiff got possession as against the defendant.

5. But where a considerable period elapses between the date of delivery of possession and the date on which possession of the land is disputed, a stale delivery of possession cannot be conclusive as to present possession. In this case it is found by the Magistrate that from 12th March 1937 onwards, it was the first party who exercised all the acts of possession in respect of the disputed property and indeed up till 27th May 1938 no overt act of possession appears to have been attempted to be done on behalf of the second party. It was in the circumstances open to the Magistrate to hold, as he has held, that there had been an ouster of the second party.

6. I should add that in the decree which was passed in 1936 Bapu Gopal Bux Roy was not the petitioners'' judgment-debtor but was a co-plaintiff.

As regards the suggested terrors in the reasoning by which the Magistrate has dealt with details of the evidence, it is objected that the Magistrate has referred to the fact that Gopal Bux Roy has got his name entered in Collectorate Register as 16-annas proprietor and has relied on this fact in support of the first party''s possession. As the second party claimed possession not in the capacity of a proprietor but of a mukarraridar, the entry in Register D had to be in the name of Gopal Bux Roy in any event and is consistent with the case of either party.

7. The entry was not therefore a piece of evidence definitely supporting the case of the first party. Apart from this the criticizms advanced against the Magistrate''s reasoning do not seem on examination to be well founded. This is not an appeal on matters of fact, and if it were, it is by no means clear that the Magistrate''s finding ought to be disturbed.

It is pointed out on behalf of the opposite party that whereas the order of the Magistrate was passed on 30th March 1939 this Court was not moved until 28th August 1939.

8. It has been held in Kelu Patra and Others Vs. Iswar Parida and Others, that as a general practice the High Court will not entertain, in the absence of most exceptional circumstances, an application in its criminal revisional jurisdiction after the expiry of 60 days from the date of the decision or order impugned. For these reasons, the application fails and is dismissed. The Rule is discharged.