1970 P Cr (PLP)

This is a Reference under section 438 of the Code of Criminal Procedure made by the Additional Sessions Judge, 1st Court, Dacca recommending to set aside an order dated 29-1-68 passed by Mr. Md. Sultan Ali, Magistrate, 1st Class, Dacca in a proceeding under section 145 of the Code of Criminal Procedure. The first-party petitioner Sahabuddin Ahmed filed an appli cation before the learned Sub-Divisional Magistrate, Dacca for drawing up a proceeding under section 144, Cr. P C. against the second-party-opposite-parties on the allegations that there was an apprehension of breach of the peace amongst the parties with regard to possession of certain lands. The learned Sub-Divisional Magistrate drew up a proceeding under section 144, Cr. P. C. on 27-3-67. Subsequently by an order dated 14-4-67 the said pro ceeding was converted into one under section 145, Cr. P. C. and the parties were asked to submit written statements. The matter was thereafter transferred to Mr. Md. Sultan Ali, Magistrate, 1st Class, Dacca for favour of disposal. Both the parties filed written statements in support of their respective claims. They also examined witnesses in the proceed ings. The learned Magistrate considering the evidence both oral and documentary found the first-party in possession of the disputed land and accordingly by an order dated 22-1-68 directed that the first-party be retained in possession until evicted there from by a competent Court and the second-party be stopped to cause any disturbance with regard to the land in question. The second party challenged the propriety of the above order of the learned Magistrate before the Sessions Judge, Dacca under section 438, Cr. P. C. and prayed to refer the matter to the High Court for setting aside the same. The learned Additional Sessions Judge, 1st Court, Dacca, after hearing the parties referred the matter to this Court for setting aside the order of the learned Magistrate. The learned Judge made this reference mainly on the ground that one Neaz Bibi was a necessary party in the disputed land but she was not impleaded as such party in the proceedings and as a result, the order of the learned Magistrate was bad in law and liable to be set aside. In this connection he observed as follows: "On the face of such contention, Neaz Bibi was a necessary party and she must have been impleaded. In a proceeding under section 145, Cr. P. C., all concerned in the dispute, which is likely to cause breach of the peace, should be made parties, 9therwise an effective prevention of breach of the peace will be difficult. The P. W. 4 admits that Jainab Ali possesses about half a bigha from the suit plot and the P. W. 5 admits that the' second-party also possesses at least one share in the suit plot. In this connection reference may be made to the cases reported in I L R 28 Cal. 446; 6 C W N 101 ; I L R 21 Cal. 29 and 10 D L R 248." Section 145, Cr. P. C. deals only with the question of posses sion and not with right, title or interest. The words "parties concerned in such disputes" mentioned in section 145(1), Cr. P. C. refer only to person claiming to be in possession or persons who are concerned as claiming to be in possession. The subject-matter of the enquiry being only to ascertain the question of possession in my opinion, only the parties in possession or the persons claiming to be in possession are the necessary parties in the dispute and be impleaded as such parties in the proceedings. In this con nection the decision reported in I L R 30 Cal. 155 may be referred to. 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. In the instant case the written statement filed by the second party shows that they were bargadars of Neaz Bibi and that they were possessing the suit land as such bargadars for more than 12 years. It is thus clear that Neaz Bibi was never in actual. possession of the land. The second-party did not assert that Neaz Bibi was in possession and she also never claimed to be in physical possession of the disputed land. Neaz Bibi not being in actual possession for more than 12 years is not in my opinion a necessary party to the proceedings where the Court is required only to decide the question of possession. In this view of the matter, I find difficult to accept the recommendation of the learned Additional Sessions Judge. The case reported in 6 C W N 101 has no application. The facts of that case and the present case are completely different. In that case both parties made specific assertions in their written statements that some other persons who are equally in possession of the disputed land should be made parties to the proceedings. In the present case, it was never the case of second-party that Neaz Bibi was in actual possession of the land and as such she should be added as a party to the proceedings. The principles laid down in the cases reported I L R 21 Cal. 29, I L R 28 Cal. 446 and 10 D L R 248 have no bearing upon the question raised in the present case. In those cases the question that arose for consideration was whether a servant or the Manager of a proprietor, in the absence of the proprietor or master can maintain a proceeding under section 145, Cr. P. C. That is not the case here. The parties did not come before the Court either as a manager or a servant in this case. Those cases are, therefore, distinguishable and have no application to the facts of the present case. The question raised in the letters of reference and now argued by the learned Advocate appearing in support of the reference was never pressed or argued before the learned Magistrate. There is nothing on record to show that Neaz Bibi was in any way concerned to cause a breach of the peace over possession of the disputed land. Hence the proceedings are not without jurisdiction simply because she was not made a party thereto. Parties actually in dispute are not injured in any way by the omission to implead her in the subject-matter of the dispute. For the reasons stated above, I am unable to accept this reference and it is accordingly rejected. Reference rejected.