Report No. 41
Chapter XII
Disputes as to Immovable Property
12.1. Introductory.-
Since disputes over land and water, crops and other produce of land and rights of user in respect of immovable property often result in breach of the peace, violence and bloodshed, Chapter XII (sections 145 to 148) arms the magistracy with powers to intervene at an incipient stage of the dispute and compel the disputants to have recourse to legal remedies. Experience over the years has proved the usefulness of the provisions contained in this Chapter of the Code.
12.2. Powers to be exercised by Executive Magistrates only.-
At present only District Magistrates, Su.-divisional Magistrates and Magistrates of the first class are competent to take action under section 145 or section 147. In Bombay this power is vested by a local amendment in the Chief Presidency Magistrate, District Magistrates, Su.-divisional Magistrates or other Executive Magistrates specially empowered by the State Government in this behalf. We agree with the recommendation of the Commission in the earlier Report1 that Judicial Magistrates need not deal with cases of this type. Since in the scheme we are proposing, there will be no Executive Magistrates of the second or third class and metropolitan areas also will have separate Executive Magistrates, it is proposed that all Executive Magistrates may be vested with the power to take action under this Chapter.
1. 37th Report, para. 357.
12.3. Section 14.- changes made in 1955.-
When the Code was amended in 1955, important changes were made in su.-sections (1) and (4) of section 145 with the object of curtailing the proceedings before the Magistrate and expediting the completion of the inquiry as to which party was in possession of the property. Before 1955 the parties were only required to put in written statements of their claims as respects the fact of actual possession of the subject of dispute and it was for the Magistrate to record at the inquiry all such evidence, oral and documentary, as may be produced by the parties.
After the amendment of 1955, the parties are required under su.-section (1) to put in such documents or to adduce, by putting in affidavits, the evidence of such persons as they rely upon in support of their claims; and under su.-section (4), the Magistrate is normally expected to complete the inquiry and reach a conclusion on the basis of these documents and affidavits. The first proviso to su.-section (4) gives him a discretion to summon and examine any person whose affidavits has been put in by a party.
12.4. Revised procedure not satisfactory.-
The revised procedure does not appear to have worked satisfactorily in practice. It is said that stereotyped affidavits prepared by lawyers on the same lines as the written statements are put in by both sides and these do not help the Magistrate very much in reaching a sound decision. Examination of witnesses under the first proviso cannot in most cases be avoided and consequently there is nb saving of the Court's time. The main object of the amendment, which is to get the inquiry completed rapidly, has not been achieved. On principle also, it is better that the Magistrate is required to decide the important fact of possession on the basis of oral evidence given before him and tested by cros.-examination in the presence of parties. We therefore recommend that the procedure as it existed before 1955 should be restored.
12.5. Date for counting period of two months under section 145(4).-
At the completion of the inquiry under su.-section (4), it is the duty of the Magistrate to decide whether any, and so which, of the parties was at the date of the order made by him under su.-section (1) in actual possession of the property which is the subject of dispute. If, however, it appears to the Magistrate that any party has, within two months next before the date of this order, been forcibly and wrongfully dispossessed, he may treat that party as if he had been in possession on the date of the order.
Sometimes it happens that the Magistrate passes his first order under su.-section (1) some appreciable time after receiving the polic.-report or other information about the dispute with the result that the two months' limit specified in the proviso does not assist the party wrongfully dispossessed. In the earlier Report1 the Commission, after examining the case law on the subject, recommended that the period of two months should be counted backwards from the date of receipt of the polic.-report or other information, instead of the date of making in order under su.-section (1) on the basis of that report or information.
1. 37th Report, paras. 358 to 362 and 374.
12.6. Su.-sections (1) and (4) revised.-
Su.-sections (1) and (4) of section 145 may accordingly be revised as follows.-
"(1) When an Executive Magistrate is satisfied from the report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within his local 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 on a specified date and time and to put in written statements of their respective claims as to the fact of actual possession of the subject of dispute.
"(4) The Magistrate shall then, without reference to the merits or the claims of any of the 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, 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 made by him under su.-section (1), in possession of the subject of dispute:
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of the police officer or other information was received by the Magistrate, or after that date and before the date of his order under su.-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under su.-section (1)."
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