P L D 1977 Supreme Court 384 (PLP)

ANWARUL HAQ, J.--This appeal, by the leave of the Court, is directed .against an order made by the learned Chief Justice of the Peshawar High .Court on the 2nd of July 1974, by which he dismissed a revision petition instituted by the appellants to challenge an order made by the Sub-Divisional Magistrate, Mardan, on 21-2-1974 in proceedings under section 145 of the Code of Criminal Procedure, holding that the actual physical possession of the disputed land measuring nearly 730 Jaribs and situated in villages Chail .and Mir Aman Kili in Tehsil and District Mardan, was with the respondents Malik Shamsuddin and Wahidullah, as agents or Mukhtars of Nawabzada Col. Muhammad Amir Khan of Hoti, and directing that the aggrieved party may seek his remedy through the civil Court. The proceedings bad been initiated on 8-11-73 by the Station House Officer of Takht Bhai Police Station by filing a complaint in the Court of the Magistrate alleging that the land in dispute was in the possession and self-cultivation of the said Nawabzada, but the present appellants, claiming to be ,its old tenants, were trying to take forcible possession thereof, thus causing an apprehension of breach of the peace. The learned Magistrate passed a preliminary order on that very day attaching the land and calling upon the parties to file their written statements. In their written statement, the appellants took up the position that they and their forefathers had been in possession of the disputed land as tenants under the late Nawab of Hoti and subsequently under his heirs including Nawabzada Col. Muhammad Amir Khan and had been paying rent to them. They asserted that they had brought the land under cultivation, had planted valuable trees and had built an Abadi at their own expense. They alleged that the Nawabzada, in conspiracy with Malik Shamsuddin, had secretly leased out the land to the latter as Ijaradar and Malik Shamsuddin had tried to forcibly dispossess the appellants with the help of Gundas. Finally, they stated that the entries in the land revenue records had also been dishonestly manipulated against the appellants, as the respondents were influential people owning factories and other property. This was apparently. a reference to the Nawabzadgan and not to the respondents Malik Shamsuddin and Wahidullah. The two respondents, on the other hand, averred in their written statement that the disputed land was in the self-cultivation of Nawabzada Col. Muhammad Amir Khan of Hoti, and they were looking after and ,managing the same as his agents, acting under his orders, instructions and .directions. They stated further that the Nawabzada had built a bungalow on the land and had also laid an orchard covering a vast area for his private use. Finally, they stated that the physical possession of their master over this land was unquestionably proved by the attested copies of the Jamabandies for the years 1966-67 and 1970-71, as well as copies of the Khasra Girdawari for the various crops from 1967 to Rabi 1973. They alleged that the appellants were trying to interfere with the possession of their master according to a diabolical plan. They ended the written statement by saying that "the respondents first party may be declared as agents of the said Nawabzada Col. Muhammad Amir Khan in possession of the land in dispute or any other appropriate order envisaged by law". After hearing the parties and recording their evidence the learned Magistrate came to the conclusion that the respondents were in actual possession of the land in dispute as agents of the Nawabzada 0n the date on which he took cognizance of the matter, namely, the 8th of November 1973. This finding was upheld in first revision by the learned Sessions Judge, Mardan. In the second revision instituted by the appellants in the High Court, the Awe main grounds urged were : (i) That Nawabzada Col. Muhammad Amir Khan not having. been made a party to the proceedings, and his Kardar Shamsuddin not having claimed possession of the land in his own right at the relevant time and being merely a servant of the owner, the entire proceedings were without jurisdiction ; and (ii) That no opportunity was afforded to roost of the appellants by the trial Court to prove their separate possession, with the result that they were seriously prejudiced in proving their case. The learned Chief Justice repelled both these contentions. On the first point he observed, after examining the contents of the written statements (filed by the parties, that the two respondents had substantially alleged to be in possession of the land in dispute on behalf of the Nawabzada, although making it clear that the land had always remained in the physical possession of their master as his Khud Kasht. He also referred to the fact that the present appellants had not controverted the stand of the respondents that they were the agents of the Nawabzada and were looking after the land in that capacity. He, therefore, thought that the two respondents were very much concerned with the dispute as they were in possession on behalf of their master. He further observed that this objection was at any rate a mere technicality, as the Nawabzada had authenticated the power of attorney executed by the respondents in favour of their Advocate, thus showing that he was very much aware of the dispute and ratified the action of the respondents, with the consequence that eventually he would be bound by the order of the learned Magistrate even if it had gone against him. On the second point raised before him, the learned Chief Justice observed that the appellants had appointed Askar Khan and Fazal Khan as their attorneys and had fully empowered them to represent their interest in these -proceedings and to take all steps to prosecute this litigation, and that accordingly Askar Khan had appeared as a witness in the proceedings for himself as well as for the other appellants and had also produced other witnesses and documents. On this view of the matter, he thought that it was too late in the day to contend that the appellants were prejudiced by the rejection of their application for producing individual evidence. The learned Chief Justice went on to add that on merits the appellants were unable to show anything from the record that the findings of the two Courts below against them were in any way illegal. He stated that according to the revenue record extending over the past 15/16 years the land in dispute had been recorded in the self, cultivation of the owners, and this would be sufficient to sustain the order made by the learned Magistrate. While making these observations, the learned Chief Justice held that an area of 30 kanals was shown to be in the possession of the appellant Ahmed Saeed and accordingly it would be excluded from the operation of the order made by the Sub-Divisional Magistrate. More or less, the same contentions have been repeated before us by Mr. M. Afzal Khan Bangash, and were raised by him before the High Court. He contends, firstly, that the respondents as agents or servants of the true owners could not maintain the proceedings under section 145 of the Code of Criminal Procedure as they never claimed possession in their own right, and could not, therefore, be treated as parties to the dispute ; secondly, that the Magistrate was pot competent to pass an order in favour of Nawabzada Col. Muhammad Amir Khan as he was not a party to the proceedings before him ; and finally, that the power of attorney given by the appellants to Askar Khan and Fazal Khan was merely for acting on their behalf. and did not authorise these attorneys to adduce evidence in support of their separate possession, and accordingly, the Magistrate acted illegally in refusing to allow the appellants to adduce their own evidence. Subsection (1) of section 145, Cr. P. C. provided that "whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute." Subsection (4) of the same section, which is also directly relevant in the present context, lays down that "The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject . .." It will be seen that the dispute mentioned in subsection (1) must be regarding the actual possession of any land or water or the boundaries. thereof. This intention of the law is made abundantly clear by the direction contained in subsection (4) which enjoins the Magistrate to decide. if possible, whether any and which of the parties was at the date of the preliminary order mentioned in subsection (1) in actual possession of the subject of the dispute, and he is to do so without reference to the merits or the claims of any of the parties to a right to possess the disputed land or water etc. The operative order made by the Magistrate under subsection (6) of section 145 is also intended to protect the party found to be in actual possession. It follows, therefore, that for a proper adjudication of the proceedings initiated under section 145, Cr. P. C., the parties in actual possession or claiming to be so should be before the Court. Now, the question is whether the phrase "the parties concerned in such dispute" necessarily refers only to the proprietors or other persons claiming actual possession in their own right, or whether it also includes managers, agents or servants or other persons claiming actual possession on behalf of their masters or principals. In Ram Chandra Das v. Monohar Roy (ILR 21 Cal. 29), it was observed that these words do not necessarily mean only the persons who are disputing, but include also persons who are interested in, or claiming a right to, the property in dispute. In that case the owners of the property had not been made parties to the proceedings, which were between their servants only. The Court held that the Magistrate was wrong in not impleading the real owners of the disputed land, and therefore, the proceedings stood vitiated, as any order made in the absence of the real owners may be distinctly prejudicial to them. This view was followed by the same Court in Behary Loll Triqunait v. Derby (ILR 21 Ca1. 915) and in Brown v. Prithiraj Mandal (I L R 25 Cal. 423). In the first mentioned case an order made by the Magistrate at the instance of the manager of a Company was held to be bad on the ground that the manager had no interest, except as such or possession except as representing the Company, and such possession was not the kind of possession contemplated by the section. The learned Judges did not elaborate the reasons for this conclusion : The same remarks apply to the latter case. However, a departure was made by the Full Bench In the case Krishna Kamlni v. Abdul Jabbar (I L R 30 Cal. 155). It was held that the words "parties concerned in such dispute" occurring in subsection (1) of section 145 of the Code are intended to indicate all persons claiming to be in possession at the time of the initial orders made under this subsection. but proceedings are not rendered without jurisdiction simply because some person claiming possession in some way of the lands or a portion of the lands in dispute had not been made a party, he not being one of the parties in the dispute likely to cause a breach of the peace, such person not having appeared and raised any objection. The question again came up for consideration before the Full Bench in Dhondhai Singh v. Follet (I L R 31 Cal. 48) in respect of the manager of a proprietor who ,was not resident within the appellate jurisdiction of the High Court. The learned Judges distinguished the earlier cases by saying that they did not lay down the rule that there was no jurisdiction in the Court to deal with the case such as the present. They observed that as the dispute covered by the section was one concerning actual possession, and there was .nothing in the section to indicate that it could only be possession as a proprietor, there was reason why a manager in possession on behalf of a proprietor, resident outside British India could not properly maintain such proceedings. It appeared to them that it would be difficult to say that he was not one of the parties concerned in the dispute. The scope of the section was further extended, in Bholanath Singh v. Wood (I L R 32 Cal. 287), by holding that even the manager of a proprietor resident within the jurisdiction of the Court could be considered to be a proper party to proceedings under section

145. In Nagoji Row v. Subbarayulu Naido (A I R 1917 Mad. 742) the view taken by the Calcutta High Court in the case of Chandra Das was followed, but with the modification that a manager could be regarded as a party concerned in the dispute, although the same status could not be conceded to a mere servant, as he could not be treated as being in actual possession either in his own right or on behalf of another. It was added that the possession in such a case must be with the person who pays him his monthly wages and entrusts him with the custody of the property in dispute. In yet another case, namely Emperor v. Bhuneshar Prasad (A I R 1936 A11. 531), it was held that "the inquiry under section 145 is confined to the fact of actual possession irrespective of the merits of the claims of the parties concerned. A claim, therefore, merely to a right to possession a& distinguished from a claim to be in possession, would be outside the scope of the inquiry. It is, therefore, not necessary that all parties interested in or claiming a right to the property in dispute or entitled to it should be made parties to the proceedings. Hence where the dispute lies between the two rival parties who claim to be in actual possession of certain land, and they alone are issued notices under section 145, and not the co-sharers of the land, there is no defect in the proceedings." While dealing with the same question, a learned Single Judge of the former High Court of East Pakistan held, in the case cited as Aposh Ali v. Amjad Ali (P L D 1958 Dacca 415), that section 145, Cr. P. C. was not intended to apply to servants in the absence of their masters, and any order made in such circumstances was without jurisdiction, but the possession of a manager in actual possession of the land would be different. In the case before the learned Judge the proceedings had been initiated by one Aposh Ali, a peon of the father of the owner of the- property in dispute. It was held that as it was not the case of Aposh Ali that he was a manager in actual possession of the land the order made by the Magistrate in favour of the owner was without jurisdiction. The trend of judicial authorities clearly appears to be that for the purpose of effective adjudication of the proceedings contemplated by section 145 of the Code, all the parties concerned in the dispute as to actual possession should preferably before the Court, but that it is not necessary that the true owners or proprietors must be personally present or impleaded, and that such proceedings can be competently maintained by their agents of managers claiming to be in actual possession on behalf of their masters or principals. The position of a mere servant has not been held to qualify him for this status for the reason that he cannot claim to be in actual possession on behalf of the master, which possession remains with the master himself during the employment of the servant. As in the present case we are not dealing with the case of a mere servant, it is not necessary for us to record any final opinion in this behalf. Suffice it to say that if a manager or an agent of a proprietor claims to be in actual possession on behalf of his master or principal, there appears to be no legal bar in the way of his being a competent party to proceedings under section 145 of the Code. One other aspect of the matter may also be noticed at this stage, namely, that the omission to implead ail the necessary parties would at best amount to an irregularity which would be curable under section 537, Cr. P. C., unless it be shown that the omission has in fact occasioned a failure o justice. We have already mentioned that such a view was adopted in the case of Krishna Kamini. Similarly, in Nandan Singh v. Siaram Singh (A I R 1926 Pat. 67), it way held that the question of misjoinder of parties did not ordinarily affect jurisdiction, as it was a question of procedure by which jurisdiction was not affected, whether a party had been wrongly included or excluded. Some contrary observations were made in Pearay Lal v. Emperor (A I R 1934 All. 853), but in that case it was found that the real dispute was between the master of the complainant and another person, but the Court issued notice to the agent of the latter and the case proceeded between the agents. The Magistrate attached the property in possession of the master of the opposite-party and ordered possession to be given to the master of the complainant. The Court held that the proceedings ought to be quashed as the persons concerned were not called upon to file their written statement, and the omission to Implead the master of the opposite-party was not remedied by section 537 of the Code. It will be seen that this view proceeds on the basis that serious prejudice had been caused to the opposite-party on account of the Magistrate's omission to give him an opportunity to show cause against the delivery of possession to the complainant. This case, therefore, appears to be distinguishable tan facts. In Ratan v. Tika (A I R 1939 Lah. 233), a learned Judge of the Lahore High Court expressed the view that failure to make an initial order as required by subsection (1) of section 145, failure to serve notice on the opposite-party according to law or to affix a copy of the order of the Magistrate to some conspicuous place at or near the subject of dispute or even failure of a Magistrate to record a finding in the final order that there is danger of breach of the peace about land, are all defects which section 537 can cure and are not, therefore, sufficient to vitiate proceedings under section 145 if the parties arc not thereby prejudiced in any manner. Similar views were expressed by the learned Judges of the Patna High Court in Inderdeo Singh v. Kesho Singh (A I R 1938 Pat. 1) and Sindbyaehal Prasad Verma v. Madho Singh (A I R 1946 Pat. 330). More recently the entire question of jurisdiction in respect of proceedings under section 145 of the "ode arose for consideration by this Court in Muhammad Ishaque v. Nur Mahal Begum (P L D 1961 S C 426). It was observed that there can be no doubt that Magistrates exercising jurisdiction under section 145, Cr. P. C., 1898, are expected to comply strictly with the provisions of the section, but to say that a failure to follow the prescribed mode must in every case render the exercise of the jurisdiction invalid and illegal is too wide a proposition. There is a distinction between the elements, which are essential for the foundation of jurisdiction, and the mode in which jurisdiction has to be exercised. The elements necessary for the foundation of jurisdiction under section 145 of the Code of Criminal Procedure, 1898, are that the Magistrate must be satisfied-- (a) that a dispute likely to cause the breach of the peace exists, (b) that the dispute refers to land or water or the boundaries thereof, and (c) that such land or water is situated within the limits of his territorial jurisdiction." "The jurisdiction to make the order depends upon the existence of the elements necessary for founding the jurisdiction. Once the Court has validly acquired that jurisdiction, it cannot be said that it has only the jurisdiction to make a correct order in the prescribed form and that whenever the order is incorrect or defective, the order must also be held to be without jurisdiction . . . . In such cases the important thing is to see whether there were materials on the record upon which the satisfaction of the Magistrate could be at all grounded . . . . . .In our opinion, when a Court exercises a jurisdiction not strictly in accordance with the mode prescribed by the statute, the question must necessarily arise as to whether the defect amounts merely to an irregularity or an illegality and the answer to this question must necessarily depend upon the character and the object of the rule which has been contravened." It will be seen that any technical defect or omission in the procedure followed by the Magistrate in the proceedings was not held to affect his jurisdiction, as long as there was material on the record to justify the order made by him. The effect of any such defect of omission would in fact depend upon its nature and character, which really has reference to the question whether any prejudice has been caused to one party or the other. The same principle was reiterated in another context Shamim v. The State (PLD 1966 SC 178). While considering the effect of the failure of a Magistrate to examine a complainant under section 200 of the Code of Criminal Procedure before issuing process to the accused, the Court observed that "the better view seems to be that this is a mere irregularity curable under section 537 of the Code". It was added that the language of section 200 of the Code did not lead to the inevitable inference that the examination of a complainant was a sine qua non of valid proceedings in all circumstances. The Court also drew attention to the explanation to section 537 of the Code which says that in determining whether any error, omission or irregularity in any proceeding under the Code had occasioned a failure of justice, the Court shall have regard to the fact whether the objection could or should have been raised at an earlier stage in the proceedings. As in the case before the learned Judges, the relevant objection was not raised till after the complainant and some other -witnesses had been examined in the case, the Court found that no interference was called for. These observations have relevance to the present case for the reason that the objection now being raised as to the non-impleading of the Nawabzadgan was not raised before the trial Court at any stage, nor was any objection taken in the written statement to the locus standi of the respondents Shamsuddin and Wahidullah to maintain these proceedings. Now, the essential facts of the present case are that in their own written statement the present appellants had themselves brought in the respondent) Malik Shamsuddin as the person who was trying forcibly to dispossess them with the help of Gundas, and it was he who had entered into a secret conspiracy with Nawabzada Col. Muhammad Amir Khan so as to make it appear that he was the Ijaradar of the land in dispute. In other words, according to the appellants the dispute as to possession was being created bye Malik Shamsuddin, although in - conspiracy with the said Nawabzada. It appears to us, therefore, that Malik Shamsuddin was indeed a necessary party to the dispute on the position adopted by the appellants themselves. It is true that in the written statement filed by the respondents, the land was described to be in the self-cultivation of Nawabzada Col. Muhammad Amir Khan of Hod, but it was asserted that they were looking after and managing the same as his agents. In the prayer clause also, as already stated in an earlier part of this judgment, they had requested that they be declared as agents of the said Nawabzada in possession of the land in dispute. In the statement made by Shamsuddin before the Court the same position was reiterated, and he claimed to be in possession of the land on behalf of the Nawabzada, and to be managing the same under his instructions etc. Finally, the power of attorney executed by the two respondents in favour of their counsel was attested by Nawabzada Col. Muhammad Amir Khan, thus showing that he was fully aware of the proceedings in question, and approved of the appointment of the counsel by the respondents as his agents. From all these facts and circumstances, it inevitably follows that the respondent Malik Shamsuddan was indeed a person concerned in the dispute which formed the subject-matter of the proceedings before the learned Magistrate, as it was his conduct which had apparently, according to the appellants themselves, given rise to an apprehension of the breach of the peace concerning the possession of the disputed land. It is also clear that the respondents were claiming to be in actual possession of the land as the agents or managers of Nawabzada Col. Muhammad Amir Khan, and in that capacity they were competent under the law to maintain the present proceed-f fogs. Their action in defending the proceedings appears to have been fully rectified by the Nawabzada inasmuch as he attested the power of attorney ,executed by the respondents in favour of the counsel engaged by them in these proceedings. It is also clear that the omission to implead the Nawabzada or the other owners of the property in the proceedings did not affect the Magistrate's jurisdiction to proceed under section 145 of the Code, and was at best a procedural irregularity. As the omission had not caused any prejudice to the present appellants, who ware all along fully aware of the true position as regards actual possession, it would be curable under section 537 of the Code. Lastly, the objection was not raised by the appellants at any stage during the proceedings before the learned Magistrate, .and for that reason as well they could not be permitted to raise the same in terms of the explanation to the said section. As a result, we would endorse the view expressed by the High Court that the proceedings taken by the Magistrate were fully competent even though the Nawabzadgan had not been impleaded as parties to the proceedings. As the respondents were throughout claiming to be in actual possession on behalf of the true owners, the final order could be made both in favour of the respondents as well as their principals. Turning now to the contention that the learned Magistrate acted illegally in depriving the appellants of an opportunity of adducing their individual evidence, we find that the learned Chief Justice is right in saying that the power of attorney executed by the appellants in favour of Aksar Khan and Fazal Khan had clearly authorised these two persons not only to act on behalf of the appellants but also to do all things necessary for prosecuting the proceedings, and this would obviously include the production of the necessary evidence in support of their case. Even in his statement made in Court Aksar Khan claimed to be acting on behalf of all the appellants. He produced witnesses in support of their case and all these witnesses made general statements as to the possession of the appellants, without specifying separate Khasra numbers of each. In fact, even in the written statement filed by the appellants no such specification of Khayra numbers was made. In these circumstances, the learned Magistrate wits right in thinking that the application made by the appellants for an opportunity to adduce individual evidence, after Aksar Khan had already produced three witnesses, besides his own testimony, was intended to prolong the proceedings. We consider, therefore, that it is not possible to accept the contention now raised before us, as was done in the High Court, that the appellants had been prejudiced by the Magistrate's refusal to allow them opportunity to produce evidence in support of their own separate possession. It is interesting to observe that in reply to our query, Mr. Bangash frankly stated that the evidence which the appellants intended to produce in the: nature of receipts as well as copies of Khasra Girdawaries would have shown the appellants' possession up to only 1969. He was not in a position to state that there was any documentary evidence whatsoever in the possession of the appellants regarding the crop in which the dispute arose, namely, Kharif 1973, although he asserted that oral evidence could have been led for the crops beyond 1969. He alleged that the revenue entries had been manipulated against the appellants by the respondents in collusion with the revenue officials, but such an allegation would hardly suffice to negative the presumption of correctness which attaches to the Jamabandies under the Land Revenue Act. It appears, therefore, that as far as the record of rights for the relevant period, and in fact for several preceding years, is concerned. the possession is indeed that of the owners and not that of the appellants. Such being the case, the Courts below were right in deciding the dispute in favour of the respondents. For the foregoing reasons this appeal fails and is hereby dismissed. S. A. H??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.