Authored By : Henry Thoby Princep, Banerjee, C.H. Hill,Cecil Michael Wilford Brett, Gilbert S. Henderson

Henry Thoby Princep, Off. C.J.

1. I agree in the judgment delivered by Mr. Justice Hill.The matters under consideration have been so fully discussed in the order ofreference and in his judgment that there is little to add.

2. The reported cases to which dissent has been expressed inthe order of reference seem to have proceeded on the ground that proceedingsunder Section 145 of the Code of Criminal Procedure should be regulated on thesame principles as if the Magistrate were trying a civil suit involving a rightto possession and that, unless all persons having any possible claim are madeparties to those proceedings, they are bad for want of jurisdiction. That wasalso the argument addressed to us by Mr. Hill. But the law does not requirethis, nor is it the object of proceedings under Section 145 that the Magistrateshould deal with the matter before him, as if he were acting as a Civil Court.The object in view is to prevent a breach of the peace by determining theactual possession of land, etc., in dispute between certain parties, who arelikely on this account to break the peace. The Court has, however, recognizedthat a determination of actual possession between the disputing parties mightaffect the rights of absent parties really in possession and that such personsare entitled to be heard. That seems to me to be going beyond the letter of thelaw and also the object in view. It may be very desirable that such partiesshould be heard, so as to avoid a possible injustice by determining in theirabsence an issue which may affect their rights. But whether a particular personshould or should not he brought in is a matter on which the Magistrate shouldexercise his discretion. The law nowhere declares that such person is entitledto come into the proceedings and therefore, although in refusing to hear him,the Magistrate may not be exercising his discretion properly, it cannot be saidthat such refusal amounts to a refusal to exercise jurisdiction under the law.The object in view is to prevent a breach of the peace between certain partiesfound to be in dispute by determining the subject-matter of that dispute, notthe determination of actual possession or a right to possession in regard toall persons, who may possibly be concerned in such a matter. It is the duty ofthe Magistrate to avoid doing injustice to others, when holding hisproceedings, so as to arrive at the final order in regard to actual possession,but his jurisdiction cannot be affected by the fact that he may not have heardone, who was not mentioned, in the information on which he has acted, as indispute or in the order in writing on which his proceedings have been taken.The final order has effect only, until a competent Court has determined"the rights of the disputing parties thereto or the person entitled topossession thereof." By this means the probable breach of the peace isprevented. This is the paramount consideration and I may appropriately pointout that this has so been regarded in respect of an order under Section 144which may restrain a person from the exercise of his lawful rights of property,because such exercise is likely to cause a breach of the peace. There are manyreported cases on this subject in which, for instance, the right to hold a hat(market) by a man on his own land has been prohibited for this reason.

3. The judgment of the Full Bench in Protap Narain Singh v.Rajendra Narain Singh I.L.R. (1896) Cal. 55 is obsolete in consequence of themodification of the law by the enactment of Sub-section (3) for the obviousobject of directing a public notification to be made, on the locality, of theorder in writing. Taking proceedings under Section 145 can have been only withthe intention of enabling others than those personally served with such orderto come in, if they are affected by the proceedings taken. As one of thereferring Judges, I would here explain that the third point put to the Full Benchproceeded only on that judgment being in force.

4. On the last point referred, I would desire to state thatit is impossible to lay down any general rule in regard to proceedings of aMagistrate under Section 145 and how far they should be confined in each caseto a particular plot of land claimed by one of the parties. Suppose, as in thecase of Laldhari Singh v. Sukdeo Narain Singh I.L.R. (1900) Cal. 892 a numberof persons backed by their landlord are disputing with others backed by theirlandlord in regard to possession of lands and from the information before theMagistrate they are acting in combination. As between the zemindar landlordsthere would be no difficulty, but to require the Magistrate to hold separateproceedings in respect to each plot of land claimed by each of the ryots, wouldbe to require him to undertake what would be almost impossible from theintricate character of such proceedings. The jurisdiction of the Magistratewould depend upon the nature of the information, on which he has acted. If thedispute so brought to his notice is one likely to cause a breach of the peace,it would be impossible to characterize his proceedings as without jurisdiction,because in the course of the judicial inquiry subsequently held the claims of someof the parties related only to particular plots of land out of the entire areain question. His findings should naturally be directed to possession ofparticular plots, but that he did not take separate proceedings in respect toeach plot would not invalidate his entire proceedings. What might be the natureof a suit brought to set aside the final order passed in respect to possessionproceedings by the Magistrate seems to me to be irrelevant. The object of theMagistrates proceedings is to prevent a breach of the peace shown to be likelyto take place from the police report or other information on which he has actedand he has sufficiently complied with the law, if he finds possession of thelands in dispute in respect to each of the claims made. It cannot be justlysaid that his proceedings are without jurisdiction. I would, therefore, answerthe last point referred in the negative.

Banerjee, J.

5. These two cases were heard together.

6. Case No. 730 arises out of a proceeding under Section 145of the Code of Criminal Procedure, instituted by the Sub-divisional Officer ofTangail, in which Abdul Jubbar Chowdhry and others were the first party andBrojendro Kumar Roy Chowdhry, predecessor in interest of the Petitioner beforethis Court, was the second party. The Magistrate having made an order for theattachment of the property in dispute under Section 146 of the Code of CriminalProcedure, the Petitioner obtained a Rule calling on the other side to showcause why the order should not be set aside on three grounds, namely:

First. That the Magistrate had no authority to add parties.

Second. That certain necessary parties, namely, the tenants,had not been made parties.

Third. That the facts found did not authorize an order underSection 146.

Case No. 834 arises out of another proceeding under Section145. The Magistrate having passed an order in favour of the first party, thesecond party obtained a Rule calling upon the former to show cause why theorder should not be set aside on these grounds, namely:

First. That the Magistrate had no information upon the dateof the institution of the proceedings that there was any likelihood of a breachof the peace.

Second. That the dispute being between different personsclaiming different parcels of land, the institution of one proceeding dealingwith them altogether was bad.

Third. That the order was based upon a local investigation,which the Magistrate was not competent to make.

7. The learned Judges, who heard these two rules, beingunable to agree with the view taken in certain cases, namely, Ram Chundra Dasv. Monohur Roy I.L.R. (1893) Cal. 29, Laldhari Singh v. Sukedeo Narain SinghI.L.R. (1900) Cal. 892, Anesh Mollah v. Ejaharuddi Mollah I.L.R. (1901) Cal.446 and Mangal Halder v. Naimuddi Fakir (1901) 6 C.W.N. 101, on the questionshow far defect of parties vitiates proceedings under Section 145 and how far aMagistrate is bound to inquire as to who the parties to the dispute are and inthe case of Rajah Rameswar Persad Narain Singh v. Harbans Singh (1901) 6 C.W.N.104 on the question whether the joinder of parties vitiates such proceedings,have referred the two cases to a Full Bench for the determination of thefollowing points:

1. Are proceedings held under Section 145 of the Code ofCriminal Procedure, bad for want of jurisdiction, because the Magistrate oninformation before him has made parties to such proceedings only those who areactually in dispute and who are likely by such dispute to cause a breach of thepeace, when in the course of the proceedings so taken it is brought to hisnotice that some other party is interested-in the subject matter of thedispute, that is, is likely to be affected by the order to be passed in respectof the possession of the land in dispute. Is the Magistrate bound to stay suchproceedings

2. Is a Magistrate before taking proceedings under Section145 of the Code of Criminal Procedure, bound to make inquiry to ascertain whohave or claim to have any right to possession, either actual possession orpossession through receipt of rent from tenants, claiming to cultivate thelands in dispute

3. If he does take such proceedings on further informationsince acquired, are such proceedings separate and distinct, or are they incontinuation of the former proceedings, so as to relate back in point of timeto the date on which they were first taken

4. Are proceedings under Section 145 of the Code of CriminalProcedure, bad for want of jurisdiction, because some person claiming to havepossession in some way of the lands or of a portion of the lands in dispute,has not been made a party, although he was not one of the parties in disputelikely to cause a breach of the peace, so far as appeared from the informationon which the Magistrate acted and even if such person has not appeared andraised any objection on this account

5. Are proceedings under Section 145 bad for want ofjurisdiction, because some of the parties are concerned only with possession ofa portion of the lands in dispute

8. Before proceeding to consider these questions, I think itnecessary to determine whether the effect of Sub-section (3) of Section 435 ofthe present Code of Criminal Procedure (Act V of 1898) is to place orders underSections 145 and 146 altogether out of the revisional jurisdiction of the HighCourt. For if that is so, it would be useless to discuss the questions referredto us.

9. Though Sub-section (3) of Section 435 by declaring thatproceedings under Chapter XII (in which Sections 145 and 146 are included) arenot proceedings within the meaning of Section 435, excludes others underSections 145 and 146 from the revisional jurisdiction of this Court, so far asthat jurisdiction is conferred by Section 435, yet it cannot be said that suchorders are placed beyond this Courts power of revision under Section 15 of theHigh Courts Act, 24 and 25 Victoria, C., 104. The limits of this power see Inthe matter of Gobind Coomar Chowdhry v. Kristo Coomar Chowdhry (1867) 7 W.R.520 Nilmoni Singh Deo v. Taranath Mukerjee (1882) and Muhammad Suleman Khan v.Fatima : I.L.R. (1886) All. 104are no doubt narrower thanthose of powers conferred by Section 435, it being confined to cases of ordersmade by a subordinate Court declining jurisdiction vested in it by law or madewithout jurisdiction, a description which includes orders made by applicationof any form of procedure to cases to which it does not apply and also thosemade without complying with the material preliminary conditions required to besatisfied by the procedure prescribed. See Birj Mohun Thakur v. Rai Uma NathChowdhry and Gopi Mohun Mullik v. Taramoni Chowdhrani I.L.R. (1879) Cal. 7.

10. That being the case, let us consider how far the errorsin the proceedings referred to in the questions affected the jurisdiction ofthe Magistrate so as to make those proceedings open to revision by this Court.

11. The first question referred to this Full Bench relatesto the meaning of the expression "parties concerned in such dispute"occurring in Sub-section (1) of Section 145 and to the effect of an omission tomake any of such persons parties to the proceeding. On the one hand it is urgedthat the special jurisdiction of the Criminal Courts to deal with the questionof possession being conferred only for preventing a breach of the peace, theonly persons, who can be made parties to a proceeding under Section 145 of theCode of Criminal Procedure, are those engaged in a dispute likely to cause abreach of the peace; that it would defeat the object of the section, which isto enable the Magistrate promptly to settle disputes about possession, if hewere to be held bound to make an elaborate inquiry as to who are the differentparties interested in the subject of the dispute; and that it being left to thediscretion of the Magistrate to make such persons parties to the proceeding ashe may think fit, omission to make any person a party cannot affect thevalidity of the proceeding, especially when it is not open to the Magistrate toadd any party after the case has been commenced and in support of thiscontention the cases of Kunund Narain Bhoop I.L.R. (1878) Cal. 650 and ProtapNarain Singh v. Rajendra Narain Singh I.L.R. (1896) Cal. 55 are relied upon.

12. On the other hand, it is argued that as orders underSections 145 and 146 bind the whole world, the words "parties concerned inthe dispute" must mean all persons interested in the subject-matter of thedispute likely to be affected by any order made in relation to possessionthereof; that it would be contrary to first principles to make any such orderin the absence of parties, who may be affected by them; and that, if aMagistrate makes an order under either of those two sections without havingbefore him all the necessary parties, his proceedings are in contravention ofthe procedure prescribed and the order should be held as made withoutjurisdiction. And James Baggs case 6 Cokes Rep. 93, Laldhari Singh v. SukdeoNarain Singh I.L.R. (1900) Cal. 882, Anesh Mollah v. Ejaharuddi Mottah I.L.R.(1901) Cal. 446 and Mangal Haldar v. Naimuddin Fakir (1901) 6 C.W.N. 101 arecited in support of this argument.

13. The old law on the subject was discussed at some lengthin the course of the argument, but having regard to the observations of theirLordships of the Privy Council in the case of Norendra Nath Sircar v.Kamalbasini Dasi I.L.R. (1896) Cal. 563, I do not think it profitable to pursuethat discussion when the present Code of Criminal Procedure is clear on thepoint.

14. I am of opinion that though the jurisdiction of aCriminal Court to deal with questions of disputed possession under Section 145of the Code of Criminal Procedure is of a limited character and arises onlywhen the dispute is likely to cause a breach of the peace and though in theexercise of such jurisdiction the Magistrate must, to prevent any breach of thepeace, act with all possible promptness, yet when once the existence of such adispute is made out to the satisfaction of the Magistrate and he acquiresjurisdiction to entertain the case, such jurisdiction cannot be said to belimited to calling upon the parties actually engaged in the dispute, but mustextend to his calling upon all parties interested in the dispute, that is,claiming actual possession of the subject of dispute, to appear in person or bypleader and to his calling upon or allowing any such party, though notoriginally expressly called upon to do so, to enter appearance at anysubsequent stage of the proceedings, if the facts disclosed show suchappearance to be necessary and if the Magistrate refuses to make such party, aparty to the proceeding, on the ground of want of power in him under the law toadd any party to the proceeding and not of absence of interest in such party inthe subject of dispute as a matter of fact, the Magistrate declines ajurisdiction, vested in him by law and his order may be set aside as involvingan error of jurisdiction and he may be directed by this Court under Section 15of the High Courts Act (24 and 25 Act, C. 104) to proceed according to law.

15. The view I take is in accordance as well with the letteras with the spirit of the law.

16. Section 145 of the Code of Criminal Procedure enacts inSub-section (1) that when a Magistrate is satisfied that a dispute likely tocause a breach of the peace exists concerning any land (I refer only to so muchof the section as bears upon this case) he shall make an order in writingrequiring the parties concerned in such dispute to enter appearance and to putin written statements of their respective claims as regards the fact of actualpossession of the subject of dispute. The law then requires parties concerned,that is, interested in the dispute and not merely those engaged in it, to bemade parties and requires them to put in their claims as regards the fact ofactual possession of the subject of dispute. Every person who lays claim toactual possession of the subject of dispute is, therefore, a necessary partyunder Sub-section (1).

17. Passing over Sub-section (2) which does not bear on thepresent question, we find important changes introduced by Sub-sections (3), (5)and (7) of the present Code. Sub-section (3) requires the publication of theorder at or near the subject of dispute, which is intended to serve as ageneral notice to all persons interested; Sub-section (5) allows any personinterested other than the parties expressly required to attend, to interveneand show that there is no real dispute existing; and Sub-section (7) evidentlycontemplates the substitution of the legal representatives of deceased parties.These new provisions, in my opinion, make the principles laid down in the casesof Kunund Narain Bhoop I.L.R. (1878) Cal. 650 and Protap Narain Singh v.Rajendra Narain Singh I.L.R. (1896) Cal. 55, no longer applicable to casesunder Section 145. There is a general notice to all persons concerned in thedispute now required to be published and new parties may intervene or besubstituted in the course of the proceedings.

18. It is argued that when a new party is introduced, theold proceeding must be at an end and the Magistrate must be satisfied againthat there is a dispute still existing likely to cause a breach of the peace.No doubt it is easy to conceive cases where, with the substitution of newparties, the former likelihood of a breach of the peace may cease to exist; aswhen the old disputants die leaving minor heirs, whose properties are takencharge of by the Court of Wards. But, as a rule, the mere addition of partiesto a pending proceeding under Section 145 does not imply cessation of theoriginal likelihood of a breach of the peace and does not, therefore, requirethe initiation of any fresh proceeding.

19. Then as regards the delay that may be caused by theaddition of parties, -who may claim to cross-examine the witnesses alreadyexamined and to adduce further evidence, the remedy is provided by the newproviso to Sub-section (4) which authorizes the Magistrate in cases ofemergency to attach the subject of dispute.

20. If the letter of the law thus clearly supports the viewI take, the spirit of the law is still more clearly in favour of the same view.For apart from the question whether an order under Section 145 or Section 146is binding on the whole world--a question which I do not determine, but towhich an affirmative answer is favoured by the provisions of Sub-section (3) ofSection 145 and Sub-section (2) of Section 146--such an order mustprejudicially affect a person, who claims to be in possession of the subject ofthe dispute, but is not made a party to the proceeding, as it will be evidenceagainst him under Section 13 of the Evidence Act see Dinomoni Chowdhrani v.Brojo Mohini Chowdhrari I.L.R. (1901) Cal. 187 and he will have at least toapply to the Magistrate for the withdrawal of the order; and if that is so, itis but fair and just that he should have an opportunity of defending his casebefore such an order is made (see James Baggs case (1777) 11 Rep. 93, Maxwellon Statutes, 3rd Edition, p. 511).

21. This view is in accordance with the cases of Ram ChandraDass v. Monohur Boy I.L.R. (1893) Cal. 29, Laldhari Singh v. Sukedeo NarainSingh I.L.R. (1900) Cal. 1892, Anesh Mollah v. Ejaharuddi Mollah (1901) I.L.R.28 and Mangal Haldar v. Naimuddi Fakir (1901) 6 C.W.N. 101.

22. I would therefore answer the first question in thenegative, subject to this qualification that, if the Magistrate refuses toallow the intervention of a party claiming an interest in and actual possessionof the subject of dispute, not on the ground of his having no such interest,but on the ground of the law not authorising the addition of any such party,his order is open to revision by this Court.

23. The second question referred to us must be answered inthe negative. The Magistrate should do his best to ascertain who the partiesconcerned in the dispute in a case under Section 145 are. But his order cannotbe pronounced to be vitiated by any error of jurisdiction merely because suchinquiry has not been made or carried far enough. 1

24. The second alternative of the third question alsoshould, in my opinion, be answered in the affirmative and the first alternativein the negative, if the fresh proceeding referred to in the question is theresult not of any fresh dispute arising, but of fresh parties concerned in theold dispute being added as parties, have already pointed out that by reason ofthe new provisions introduced into the present Code, Section 145, Sub-sections(3), (5) and (7), fresh parties may be added or substituted, such addition orsubstitution not putting an end to the original proceeding and the rule laiddown by the Full Bench in the case of Protap Narain Singh v. Rajendra NarainSingh I.L.R. (1896) Cal. 55, against such substitution or addition can nolonger hold good.

25. The fourth question should, I think, be answered in thenegative, a mere allegation that some person, who does not appear and raise anyobjection, has a claim to possession, cannot vitiate the proceeding for want ofjurisdiction.

26. The fifth and last question should also, in my opinion,be answered in the negative, the fault in the proceeding which is referred toin that question being in the nature of an irregularity not affecting thejurisdiction of the Magistrate.

27. I would accordingly return the cases to the DivisionBench, "which has made this reference, with the foregoing answers to thequestions referred to us.

C.H. Hill, J.

28. Of the questions discussed at the hearing of thesereferences, those only are really material which relate to the jurisdiction ofthe Magistrate, since it is only in cases in which a Magistrate has eitheracted without jurisdiction or improperly declined to exercise his jurisdiction,that this Court has now authority to interfere with his proceedings underSection 145 of the Code of Criminal Procedure. In order therefore to bringthese cases within the jurisdiction of this Court, it must be shown that theMagistrate acted in one or other of the ways mentioned. Otherwise we have nopower of interference.

29. The two cases referred may be dealt with together, forall that I propose now to do is to express my views upon the questionssubmitted to us by the learned referring Judges, the ultimate disposal of thecases being in their hands.

30. Mr. Hills contention on behalf of the Petitioners inthe first case was, that it was essential to the jurisdiction of the Magistratethat all persons concerned in the dispute which Section 145 contemplates shouldbe made parties to the proceeding and that, if they are not, the proceedingsare bad for want of jurisdiction. He contended that by parties concerned in thedispute was meant all persons claiming aright to possession of the land, etc.,the subject of dispute and that it was therefore necessary that all suchpersons should be brought into the proceeding in order to give the Magistratejurisdiction to make the ultimate order for which the section provides. He alsopointed out that that order is to forbid all disturbance of the possession ofthe person, whom the Magistrate declares to be in possession, until evicted indue course of law and he argued that the effect of the order being consequentlyto adjudicate upon the civil rights of persons interested in the land, it wouldbe opposed to the most elementary principles of justice that any one should beaffected by it, who had not been a party to the proceeding.

31. I do not propose to follow Mr. Hill through the verynumerous authorities, which he cited in support of these positions. Nor do Ithink that the historical treatment of the subject with which he dealt soskilfully is likely to throw much light upon the actual question now before us.The law, as it now stands, is the result of very recent legislation and I thinkthat Section 145, although not perhaps altogether free from difficulties, maybe interpreted without recourse being had to extraneous sources of informationall that need, I think, be said from this point of view is that the section asit now stands is virtually a re-enactment of the corresponding section of the Codeof 1882 with, however, what appears to me to be a somewhat important additionrelative to the summoning of parties and another by which a person interested,who has not been summoned to attend before the Magistrate, is enabled to showthat no dispute exists or has existed. There are besides the new provisions asto abatement contained in Clause (7) and the provisos to Clause (4).

32. In entering upon a consideration of the section it is, Ithink, important to bear in mind the purpose with which it was enacted. Itoccurs in that part of the Code which relates to the prevention of offences andits object is to bring to an end by a summary process disputes relating toland, etc., which are in their nature likely, if not suppressed, to end inbreaches of the peace. The maintenance of the public peace was the objectbefore the mind of the Legislature and where that supreme object is in view,there can be no question but that the convenience and even the rights ofindividuals must at times be sacrificed for its attainment. It would therefore,I think, be improper, as the tendency has sometimes been, to lean too much inattempting to construe the section upon analogies derived from suits and othercivil proceedings, the results of which are very different from those ofproceedings under the section and in which the rights of individuals inter se,are alone in question. It is assumed as a possible consequence of a proceedingunder Section 145 that the owner of property may temporarily be deprived ofpossession of what is rightfully his and subjected to other inconveniences. Butthis and such like considerations it was presumably necessary to subordinate tothe imperative necessity of preserving the peace.

33. Turning to the section itself, the principal point dwelt;on at the hearing was the meaning of the words "parties concerned in suchdispute," the contention being, as I have mentioned, that the jurisdictionof the Magistrate is dependent on his having all such persons before him. Icannot assent to that view. But in order to answer the different questionssubmitted to us by the reference, it is necessary that I should say somethingas to what I understand to be the proper interpretation of the words inquestion. Having regard to the object to which the proceeding is directed, Imean by that, the ascertainment of the person actually in possession at thetime of the initial order under Clause (I), I should feel disposed to thinkthat they were intended to indicate all persons claiming to be then inpossession and I think, that the Magistrate should endeavour to bring all suchpersons into the proceeding. But the scope of the inquiry under the section isconfined to the fact of actual possession irrespective of the merits of theclaims of the parties concerned. A claim therefore merely to a right topossession, as distinguished from a claim to be in possession, would be outsidethe scope of the inquiry. And this is, I think, shown with sufficient clearnessboth by the provisions of Clause (1) of the section regarding the matter towhich the written statements of the parties are to be directed and Clause (4)which prescribes the question upon which the Magistrate is, if possible, togive his decision. I am unable therefore to agree in the view which has beentaken in certain oases that all parties interested in, or claiming a right to,the property in dispute, are entitled to be, or should be made, parties to theproceeding. No doubt the difference may be slight in practice, inasmuch aspersons who claim to be entitled to landed property usually claim to be inpossession of it. But the test is not, I think, the true one and if it were tobe adopted it would lead to the creation of numerous difficulties in theapplication of the section and greatly impair its practical utility. Regardmust be had moreover to the sources of the Magistrates information and to whatthe nature of that information is likely to be. What is most likely to beconveyed to him is that so and so and so and so are disputing about thepossession of land and that, if he does not intervene, there will be a breachof the peace and it is upon the basis of the information conveyed to him, as itseems to me, that the Magistrate is in the first instance to select the personswhom he will require to attend his Court for the purpose of laying their claimsbefore him, How is he to ascertain, in order that his proceeding may beproperly constituted, who all the persons interested in, or claiming a right tothe property in dispute, are To require him to do so would be to impose on himin some cases an almost impossible task and would undoubtedly have the effectof unduly prolonging and greatly embarrassing his proceedings and of deprivingthem altogether in many instances of their summary character. What, I conceive,the Legislature intended was to bring the dispute to a prompt termination andto compel the parties concerned in it to act their differences at rest withoutdelay and once for all by having recourse to the Civil Courts. But proceedingsunder the section have too frequently, as any one acquainted with the criminalbusiness of this Court must be aware, been protracted to a most lamentabledegree by the application of such principles as those I have referred to above.On the other hand, it seems to me difficult to say that the dispute can be amatter of no concern to persons other than the actual disputants, when theresult of the order passed under the section may be to remove from possession athird party, who is not a disputant.

34. Clause (3) of the existing section has however enlargedthe powers previously reposed in the Magistrate as to the summoning of parties.I was at first disposed to think that the clause was introduced for the purposeof regulating the issue and service of process generally under the section,thereby leaving it virtually to the discretion of the Magistrate, what personshe would make parties to the proceeding. But, on further consideration, I thinkthe intention was to empower the Magistrate, after he has issued the orderprovided for by Clause (1) to the persons who, from the original informationgiven him, it appears are claiming to be in possession, to bring in any otherpersons who from subsequent information it may seem to him proper to havebefore him. But the scope of the inquiry is not thereby enlarged. The copywhich may be served under the clause is to be a copy of the order mentioned inClause (1) which requires the party to whom it is addressed to state his claimsas to the fact of actual possession and Clause (4) confines the inquiry to thesame fact. The clause in question was, I think, intended to be onlysupplementary to Clause (1). Then the clause further provides for thepublication of a copy of the order in a conspicuous place at or near thesubject of dispute, probably with the intention of guarding against collusiveproceedings, as well as to give to any one interested, who may through anoversight or otherwise not have received a summons, an opportunity of coming inwith his claim and also to notify generally to all persons in the locality thata proceeding under the section has been set on foot. But I would say again thatI do not think this general invitation was intended, any more than the powergiven to the Magistrate of summoning additional parties, to have the effect ofaltering the character of the inquiry.

35. The only material question that still remains is thefact of actual possession.

36. Then by Clause (4) it is provided that after therequirement of Clauses (1) and (3) have been complied with, the Magistrate,without reference to the merits of the claims of "such parties" to aright to possession, is to peruse their statements, etc. and come, if possible,to a decision as to the fact of possession. The words "such parties"here must, I think, be interpreted with reference to the words in Clause (1)"the parties concerned in such dispute" and must bear the samemeaning,--the effect being to restrict the inquiry to the parties concerned inthe dispute in the sense I have mentioned above, notwithstanding that personsother than these may have been summoned by the Magistrate or may have come inof their own accord on the publication of the copy of the order in thelocality. It appears to me, I may add, from a consideration merely of thelanguage used, as distinguished from the nature of the proceeding, that thewords "the parties concerned in such dispute" must have been intendedto extend to persons other than the actual disputants. There may, I think, be adispute between A and B, which is likely to cause a breach of the peace towhich C is not strictly a party, but in which he is nevertheless concerned asclaiming to be in possession. Had it been intended to confine the proceeding tothe actual disputants, I think the appropriate words would have been "theparties disputing." Had it, on the other hand, been intended to includeall persons interested in, or claiming a right to, possession of the lands,etc., language conveying that meaning would presumably have been used.

37. Such being in my opinion the meaning of the words inquestion and the means prescribed by the Legislature for bringing the partiesconcerned before the Magistrate, the section next provides that the Magistrateshall enter upon the inquiry. Up to that point it appears to me that the Magistratehas very wide powers with respect to the persons whom he will bring into theproceeding. He may alter or add to the array of parties either of his ownmotion or on the application of any one claiming to be concerned in the disputein the sense that he claims to be in possession. The initial order is, nodoubt, intended to fix a time within which claimants are to come in, but itwould not I think be a matter of any materiality, if, after the date so fixed,but before the opening of the actual inquiry, parties were added. From thattime onwards, however, it seems to me that it was not intended, subject to theprovisions of Clause (7), that any new parties should be brought in. The"person interested" who is empowered under Clause (5) to show that nodispute exists or has existed, does not of course come in for the purpose ofjoining in the proceeding, but for the purpose of bringing it to an end. Butthe section contains no provision for the addition of parties after thecommencement of the inquiry and it was no doubt considered that the powerconferred on the Magistrate by Clause (3) of summoning such persons as he mightdeem proper and the means prescribed by the same clause for giving publicity tothe fact that a proceeding under the section had been set on foot provided asufficient guarantee that before the actual inquiry is entered upon all partiesreally concerned will either have been summoned to attend the proceeding, orwill have had the opportunity of doing so afforded them, if they care to availthemselves of it. It would lead to much inconvenience and delay, if it wereheld that any one claiming to be concerned in the dispute was entitled to comein and join in the proceedings after the commencement of the inquiry. It wouldprobably be necessary in such a case to start the inquiry afresh, as the partyadded would have, a right to have the evidence taken in his presence and ifseveral claimants successively were to come in in this way, it is evident thatthe proceedings might be indefinitely prolonged. I do not say that, if theMagistrate for sufficient reasons thought proper after the commencement of theinquiry to bring in an additional party, that his proceedings would thereforebe bad, but I think that he would in doing so be acting in contravention of theintention of the Legislature. I ought, while on this point, to add that in myopinion the Full Bench-decision in Protap Narain Singh v. Rajendra Narain SinghI.L.R. (1896) Cal. 55 cannot, in view of the alteration of the law introduced byClause (3) of Section 145 as it now stands, be regarded as a binding authorityon the construction of the section.

38. Then as to the question of jurisdiction. On beingsatisfied of the existence of a dispute likely to cause a breach of the peaceconcerning land, etc, within his local jurisdiction, the duty, which isimperative, is cast upon the Magistrate of taking action under Section 145. Thetwo essentials are that there should be a dispute likely to cause a breach ofthe peace and that the dispute should concern land, etc. The section does notprimarily contemplate cases in which there have already been overt acts ofviolence. All the disputants may be persons of peaceable disposition, but ifthe dispute is in its nature of such a kind that it is likely, having regard tothe known conditions of society, to lead to a breach of the peace, that isenough to warrant the Magistrates intervention and to give him jurisdictionover the subject of dispute. Upon the existence of those conditions and thoseconditions only, is the jurisdiction of the Magistrate in my opinion dependent.The object, I think, is to take the subject of dispute, so to speak, out of thehands of the disputants and to constitute one of them, whose possession the lawwill protect, its custodian until the other has established his right (if any)to possession in a Civil Court. In certain instances indeed the Magistrate isauthorized himself to take possession so that none of the parties concerned mayhave possession, until a Civil Court has decided upon the right. But, be thisas it may, questions of the misjoinder or non-joinder of parties do notordinarily go to the jurisdiction. A Magistrate would no doubt be actingwithout jurisdiction, if he entered upon his inquiry without having issued theorders contemplated by Clause (1) of the section. But questions of whether Aought to have been added as being a person likely to be affected by theproceeding, or B omitted as not being concerned in it, or whether C was addedat too late a stage and such like, are questions of procedure by which, in myopinion, the jurisdiction of the Magistrate is not affected.

39. There is, lastly, the point raised by the fifth questionreferred. Upon this question it is not very easy to generalize. But I should thinkthat, when there are independent disputes relative to distinct parcels of land,they ought to be dealt with in separate proceedings. When, on the other hand,the dispute is one, the fact that it embraces several distinct parcels of land,is not, in my opinion, sufficient to necessitate an independent proceeding inrespect of each. The matter is not, however, one which, as it appears to me,affects the jurisdiction of the Magistrate.

40. For the foregoing reasons I would answer the questionssubmitted to us as follows:

Question I. To the first branch of the question my answeris--No. To the second branch--I do not think that the Magistrate would be boundto stay the proceedings.

Question II. I think the Magistrate ought, before enteringon his inquiry under Clause (4) of the section (though not as a preliminary tothe initiation of the proceeding, for which latter purpose all that isrequisite is that the Magistrate should issue the orders provided for by Clause(1) to the parties named in the information), to satisfy himself to the best ofhis ability on the information before him as to who are the persons claiming tobe in present possession of the subject of dispute, but that he is notconcerned to ascertain what persons have or claim to have mere rights topossession.

Question III. I am not quite clear as to the intention ofthis question. But assuming it to relate to the addition of a party after theinitiation of the proceeding, I would say that there is no necessity for afresh proceeding, in consequence of such addition, assuming the party added tohave been concerned originally in the dispute which is the foundation of theproceedings. Up to the time when the inquiry begins I think parties may now beadded. If they are added after it has begun, I think that that would be anirregularity. But I do not think it would be necessary, in consequence, toinitiate a fresh proceeding, but evidence previously taken ought, if theparties so added require it, to be again taken in their presence.

Question IV. No.

Question V. No.

Cecil Michael Wilford Brett, J.

41. I agree with Mr. Justice Hill and have nothing to add towhat he has said in his judgment.

Gilbert S. Henderson, J.

42. I also agree with the judgment delivered by Mr. JusticeHill.

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Krishna Kamini vs.Abdul Jubbar (21.07.1902 - CALHC)