Full Judgment
Kalyan Dutta Sharma, J.
1. This is a reference by the Additional Sessions Judge, Tonk, with a recommendation that a final order passed by the leaned Sub-Divisional Magistrate, Tonk, in a proceeding under Section 145, Criminal Procedure Code declaring the possession of the non petitioners Nos. 2 to 33 over agricultural land and measuring 108 Bighas 10 Biswas, situated in the bed of a tank of Village Dhorela District Took at the date of the preliminary order and within two months immediately proceeding it, may be set aside and the case any be sent back to the learned sub Divisional Magistrate with a direction to decide it afresh in accordance with the directions given by the learned Additional Sessions Judge in his reference.
2. The reference arises under the following circumstances : Upon receiving a report in writing from the Station House Officer, police station, Anwa. on 9-10-1909 that there exists a dispute likely to cause a breach of peace concerning agricultural land measuring 108 Bighas and 10 Biswas, situated in the bed of a tank of Village Dhorela, the sub-Divisional Magistrate, Tonk, made a preliminary order in writing requiring the parties concerned in such dispute to attend his Court and to put in written statements of their respective claims with regard to the fact of actual possession of tie subject of dispute and further calling upon them to put in such documents or to adduce by putting in evidence of such persons as they relied upon in support of their claims. The parties put in their appearance before the sub-Divisional Magistrate and filed written statements of their respective claims along with documents and affidavits of their witnesses on whom they placed reliance to prove their case. The claim of the petitioners, there in after to be referred to as party No. 1, was that the land in dispute formerly belonged to Rao Raja Sardar Singh of Uniyara, who used to cultivate it every year through his servants and sometimes through other person on crop sharing basis Rao Raja Sardar Singh sold away this land to his son Jovendra Singh in Samvat year 2019 and handed over its possession to the vendee who, thereafter, continuously got It cultivated by his men in the same manner in which his father used to do. The non-petitioners, hereinafter referred-to as party No. 2, were never in possession of the disputed land but they wanted to forcibly oust Jovendra Singh and in order to carry out their evil design, they interfered with the possession of Jovendra Singh on 20.7.1909 and 23.9.1969, about which reports were nude to the police.
3. The claim of party No. 2 on the other hand was that the tank had been constructed by their ancestors and since then the land had been continuously in the possession of their ancestors & thereafter in their own possession. According to their plea, the Rao Raja of Uniyara used to receive rent of this land from them by way of share in the crops, because he was a Jagirdar of the Village. After resumption of the Jagir, Rao Raja of Uniyara got false entries made in the absence of party No. 2 in the relevant revenue record in order to show his possession over the land in dispute, although party No. 2 had been regularly paying land revenue thereof. Of the members of party No. 2, Gaja Mind is the kamdar of the Rao Raja. He brought pressure on the members of party No. 2 for recovery of one third share in the crops as rent. The party No. 2 did not agree to pay excessive rent. Thereupon party No. 1 accompanied by 300 or 400 persons tried to forcibly dispossess the members of party No. 2, but their attempts were foiled. It was further claimed by party No. 2, that the land had been cultivated by them on 5-10-1969 and 6-10-1969 and that they had been in possession thereof at the date of the preliminary order and within two months next before it.
4. The learned Sub-Divisional Magistrate, Tonk, after perusing all the documents and affidavits put in by the parties in support of their respective claims as respects the actual possession of the subject of dispute, arrived at a conclusion that party No. 2 had been in possession of the disputed land at the relevant date and within two month next before it. Hence he issued an order declaring party No. 1 to be in possession thereof until evicted therefrom in due course of law and forbidding all interference with such possession until such eviction.
5. Aggrieved by this final order, party No. I filed a revision-petition in the court of the Additional Sessions Judge, Tonk, who has made this reference on the following grounds:
1. that the disputed land consists of distinct parcels of land and each parcel or plot is subject of a separate dispute; as there are several claimants each claiming distinct Khasra number or numbers of the land in dispute. Hence it was not proper for the Sub-Divisional Magistrate to combine ail such plots together and treat them as one for the purposes of initiating an inquiry under Section 145, Cr.P.C. because such amalgamation of several disputes in respect of distinct parcels of land is bound to prejudice the claims of the parties;
2. that the Sub Divisional Magistrate wrongly relied upon certain documents marked Ex. A. 33 and A. 34 & ought to have excluded them from consideration as they were inadmissible in evidence;
3. that the Sub-Divisional Magistrate did not critically go through the affidavits put in by the parties and did not properly appraise their weight and in this manner failed to exercise his jurisdiction in a legal and a proper manner.
6. I have carefully gone through the record and heard the arguments advanced by Mr. P.N. Datt, party No. 1 and Mr. S.N. Bhargava appearing on behalf of party No. 2. The first ground on which reference has been made is whether prejudice has been caused to the parties by not instituting separate proceedings in respect of each dispute concerning distinct parcel or parcels of land. From a bare reading of the preliminary order passed by the Sub-Division Magistrate, Took, on 14 5 1970, it is evident that the subject of dispute consists of several Khasra numbers measuring 108 Bighas and 10 Biswas in all. The case of party No. 1 is that prior to the sale of the disputed land to Joyendra Singh, Rao Raja Sardar Singh vendor used to cultivate this land through his 'Halis' (servants) and labourers and sometimes through other persons on crop-sharing basis under the supervision of his Kamdars, namely, Gaja Nand, Tej Singh etc. When the land was sold by Sardar Singh to his son Joyendra Singh, the latter also get the land cultivated by his own men in the same manner in which it was got cultivated by his father. In the year 1969 also a major portion of this land was cultivated according to party No. 1. by Doongar Singh and Madan Singh, servants of Joyendra Singh and by his laborers under the supervision and control of Gaja Nand and Tej Singh. The remaining land was leased out to different persons, namely, Phepha, Kajor, Ram Narain, Keshara and Uda on rent in kind, i.e. half share of the produce. In this manner, it was alleged that Joyendra Singh was in possession of a major portion of the land in dispute through his 'Halls' i.e. servants, labourers and Kamdars at the date of the preliminary order. He was the person concerned in the dispute and hence was a necessary party to the proceedings, but, curiously enough, the learned Sub-Divisional Magistrate did not impaled him as a party to these proceedings in spite of an objection raised from the side of party No. 1. The possession of the servants or the managers was simply possession of their master or the proprietor Apart from this, it was the duty of the learned Magistrate to find out, as he could, on the materials before him which Khasra number or numbers of the disputed land were leased out to Phepha Kajor, Ram Narain, Keshara and Uda for cultivation on rent in kind, i.e. 'Batal'. This was all toe more necessary, because party No. 2 consisted of 32 persons and each of them claimed his separate possession over distinct parcels of land at the date of the preliminary order and within two months next before it as is evident from Schedule 'Ke' appended to their written statement dated 18-11-1969. It has been vehemently conceded before me by the learned Counsel appearing on behalf of party No. 1 that the learned Sub-Divisional Magistrate ought to have instituted separate proceeding in respect of distinct parcels of load claimed by each of party No. 2 in Sis possession at the date of the preliminary order and that a joint inquiry held by the Sub Divisional Magistrate is prejudicial to the parties. In support of his above contention, the learned Counsel for party No. 1 relied upon an authority of the Orissa High Court Radhashyam v. R. Rangadhar : AIR1962 Ori161 , which was quoted by the learned Additional Sessions Judge also in support of one of the grounds in his reference. In the referred to above Orissa case distinct plots of land were claimed by the petitioners to be in their possession at the relevant date and when the inquiry was commenced, an objection was taken by the petitioners that a separate inquiry should be started in respect of each parcel of land claimed by each of them but the learned Magistrate overruled the objection and did not start separate proceedings As there were several disputes in that case concerning distinct parcels of land claimed by each petitioner, his Lordship R.L. Narasimham, C.J. of the Orissa High Court was of the view that a joint inquiry in such a case would invalidate the proceedings as it is bound to cause prejudice to the petitioners in regard to the leading of evidence on the question of actual possession. In the instant case the facts are not similar to those of the Orissa case. Here Joyendra Singh has claimed to be in possession of large number of plots through his 'Halis', i.e. servants & labourers, who cultivate the land for him under the supervision of his managers namely, Gaja Nand and Tej Singh Possession over some plots, however, is claimed by Phepha, Kajor, Ram Narain, Keshara and Uda, but Khasra Numbers of those plots have not been specified in their affidavits. Each member of party No. 2, on the other hand, is claiming distinct parcels of land to be in his possession. As stated earlier, the learned sub Divisional Magistrate, before proceeding to make an enquiry, ought to have ascertained which khasra number or numbers or portion or portions were alleged to be in possession of Joyendra Singh through his servants, labourers or managers and which plots or portions thereof were claimed by each of the lessees, namely, Phepha, Kajor, Ram Narain, Keshara and Uda etc. in his possession After obtaining clear specification of the subject of dispute in the above manner, the learned sub Divisional Magistrate could treat the dispute between Joyendra Sing claiming large number of plots on one side, and diff rent members of party No. 2 putting forward their rival claims to different plots, on the other, to be a single dispute, because one inquiry in such a case would not have been illegal in the absence of prejudice. As regards the other plots of land claimed by Phepha, Kajor, Ram Narain, Keshara and Uda to be in their possession, the learned Sub-Divisional Magistrate should have started separate proceedings, if all the members of party No. 2 or any one of them had put rival claims to the plots claimed by the lessess. Where the subject of dispute consists of several plots & when there are several claimants each claiming distinct parcels of land or Khasra Nos. in his separate posses ion, there is no single dispute in respect of all of them and a joint inquiry in respect of the learned entire land may cause prejudice to the parties or any one of them. Separate proceedings in such a case should be started. The learned sub-Divisional Magistrate was, therefore, not justified in drawing up only one proceeding under Section 145 Criminal Procedure Code. He should draw up separate proceedings in the light of the above observation and dispose them of in accordance with law. As the reference can be disposed of only on this point, it is not necessary for me to deal with the other grounds mentioned by the learned Additional Sessions Judge, Tonk, in his reference.
8. Consequently, the reference is accepted, the impugned order passed by the learned sub-Divisional Magistrate, Tonk, on 14-5-1970, is set aside and the case is sent back to him for fresh decision in accordance with law in light of the observations made above.