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1870

QUEEN HIRALAL

SING.

а

Mr. Hyde (with him Baboo Jadab Chandra Seal) for the prisoners.

JACKSON, J.—The petitioners were charged with an offence under section 148, Indian Penal Code, which is an offence triable before the Court of Session, or the Magistrate of a district. The charge in the first instance was preferred before Mr. Fisher, who seems to be a Subordinate Magistrate. This officer, after examining certain witnesses, discharged the accused. The case, however, being brought to the notice of the Magistrate of the district, Mr. Hankey, he was of opinion that the proceedings of the Subordinate Magistrate had been hurriedly and carelessly taken, and observed that the complainant was entitled to have his witnesses examined ; and he, therefore, acting under the powers conferred by section 435, Act VIII of 1869, ordered a further enquiry into the complaint, and directed that the case be made over for trial to another Magistrate, who, as I understand, exercises the full powers of a Magistrate. That Magistrate convicted the accused, and sentenced them to imprisonment and fine. The accused appealed to the Court of Session, objecting, amongst other things, to the proceedings, on the ground that they were not warranted by section 435 of the Code of Criminal Procedure. The Sessions Judge, however, overruled this objection; and, going into the merits of the case, confirmed the conviction and sentence. The case is now brought before this Court, under section 404 of the Code of Criminal Procedure, and we are asked to set aside the proceedings of the Magistrate, on the ground of their being contrary to law. It is contended that the Magistrate of the district was not warranted in dealing with this case as one which had been dismissed without enquiry. It is further contended, that, supposing the Magistrate to have been authorized to deal with the case, the only order that he could inake was an order of commitment to the Court of Session.

The Magistrate, under the amended section 435, has, like the Court of Session, power of dealing with cases in which an accused has been discharged by any Magistrate, and also cases in which a complaint has been dismissed without enquiry, always under the condition that the Magistrate, whose proceedings are the subject of notice, is a Subordinate Magistrate. The Magistrate of the district has dealt with the case as if the complaint had been dismissed without enquiry; and the Sessions Judge takes the same view of the case.

There is authority in a ruling (1) (which, though, perhaps, not a judicial ruling of this Court, is contained in a letter written by way of direction to a Sessions Judge) dated August 15th, 1865, for saying that a complaint, dismissed without sufficient and full enquiry, may be considered as dismissed without enquiry. I am inclined to think that this authority warranted the Magistrate of the district in dealing with the case as he did. If not, however, it is clear that he would still have authority to order a commitment, or do

(1) 3 W. R., Criminal Letters, 21.

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1870

QUEEN

HIRALAL

Sing.

whatever is implied in the term “like powers," and a question may arise what precisely is contemplated by those words, namely, whether it is intended ex. pressly to limit the Magistrate of the district to order a commitment to the Court of Session, or to enable him, by analogy, to take order for the trial of the case before some competent Court of Criminal Jurisdiction. I incline, upon the whole, to the construction that a Magistrate is bound to order : commitment, and is not authorized to order a trial before another Magistrate.

But whatever view may be taken of the previous part of the section, I think we are precluded from disturbing the proceedings of the Court below, by reference to sections 426 and 439 of the same Act. Section 426 says:-“ No “ finding or sentence passed by a Court of competent jurisdiction shall be “ reversed or altered on appeal or revision on account of any error or “ defect, either in the charge or in the proceedings on trial, unless the ac

cused person shall have been sentenced to a larger amount of punishment “ than could be awarded for the offence of which, in the judgment of the “ Appellate Court, the accused person ought, upon the evidence, to have been “ found guilty, or unless, in the judgment of the Appellate Court, the accused “ person shall have been prejudiced by such error or defect;" and section 439 provides :—“No trial in any Criminal Court shall be set aside, and no judg.

ment passed by any Criminal Court shall be reversed, either on appcal or “ otherwise, for any irregularity in the proceedings of the trial, unless such “ irregularity have occasioned a failure of justice."

In this case, the parties appear to have been tried and convicted by a Court of competent jurisdiction. It seems to me that, unless we are of opinion that the irregularity, supposing an irregularity to have occurred, has been productive of failure of justice, we ought not to set aside the trial, or to reverse the sentence by way of revision.

It is not shown that anything of the sort has occurred, and I think, therefore, that this application must be disallowed.

Before Mr. Justice Loch and Justice Sir C. P. Hobhouse, Bart.

1870 May 25.

H. PRICE (CHAIRMAN OF THE Howrah MUNICIPLAITY) (DEFENDANT) v. KHILAT

CHANDRA GHOSE (PLAINTIFF).*

Act III of 1864 (B. C.), s. 87—Act VIII of 1859, s. 2Res-judicataLimitationSuit

against Municipal Commissioners for Possession of Land. Previous to the institution of the present suit, one of the shareholders of a piece of land brought a suit against the Chairman of the Municipality for recovery of possession of his share. The other shareholders were made pro forma defendants in the suit. This suit was dismissed as barred by the Law of Limitation. After the dismissal of the suit, the plaintiff brought the present suit for recovery of his share of the land, on the allegation that his

* Special Appeal, No. 2930 of 1869, from a decree of the Subordinate Judge of Hooghly, dated the 4th October 1869, reversing a decree of the Moonsiff of Salkhia, dated the 31st March 1869.

1870

PRICE

0. KHILAT CHANDRA GHOSE.

tenant had relinquished the land within three months in consequence of his having been dispossessed by the Municipal Commissioners.

Held, that the suit was not barred by section 2, Act VIII of 1859 ; and that section 87, Act III of 1864 (B. C.), did not apply.

Semble.—Act III of 1864, s. 87 (B. C.), relates only to actions brought in respect of acts done by the Commissioners under that Act for the purpose of the Act.

This suit was instituted by the plaintiff on the 12th September 1868 against the Chairman of the Howrah Municipal Committee to recover possession of two katas and 13 chittaks of land claimed by him as proprietor of the six. sixteenths share of the zemindari in Boro Pykan, on the allegation that the land in dispute was a part of his chur land held by him ; that his tenant had been dispossessed therefrom by the defendant who stacked stones thereon; that the tenant had relinquished the land ; and that the cause of action had arisen on the date of such relinquishment, viz., 15th June 1868.

The defence set up was that the suit was barred by lapse of time; that the Government had all along been in possession of the land in dispute, and had held the same for more than twelve years as part of Salkhia Banda Ghat. Also that, under section 87 of the Municipal Act (1) HI of 1864 (B. C.), the suit was barred.

The Moonsiff held that, as it was held by the High Court, 18th May 1868 in a suit brought by the 10-anna shareholders against the Municipal Commissioners that they were out of possession since Bhadra 1272 B. S. (August 1865), and as the land in dispute was a part and parcel of the land then in suit, the cause of action must be reckoned to have arisen from August 1865, or at least from the date on which the plaintiff was served with a summons in that suit as a pro formâ defendant; and as the present suit was instituted after a lapse of more than three months from that date, the suit was barred under section 87, Act III of 1864 (B. C.). He accordingly dismissed the suit.

On appeal, the Subordinate Judge held that section 87 of Act III of 1864 did not bar the suit, inasmuch as the land in dispute was in the occupation of the plaintiff's tenant, and that the cause of action had arisen only on his relinquishment of the holding; and that as the suit had been brought within three months from the date of such relinquishment, it was not barred. He accordingly remanded the case for the trial of the remaining issues.

Baboo Jagadanand Mookerjee, for the appellant, contended that all suits against a body of Municipal Commissioners should be brought within three

(1) Act III of 1864 (B. C.), section 87.— place of abode of the intended plaintiff; and "No action shall be brought against the Mu- unless such notice be proved, the Court shall nicipal Commissioners or any of their offi- find for the defendant; and every such action cers, or any person acting under their direc- shall be commenced within three months next tion, for anything done under this Act, until after the accrual of the cause of action, and the expiration of one month next after notice not afterwards ; and if any person to whom in writing shall have been delivered or left any such notice of action is given shall, beat the office of the Commissioners, or at the fore action brought, tender sufficient amends place of abode of such person, explicitly stat- to the plaintiff, such plaintiff shall not reing the cause of action and the name and cover."

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1870

PRICE

KHILAT CHANDRA GHOSE.

months from the date on which the cause of action arose-section 87, Act III of 1864 (B. C.); that as the plaintiff had been made a party defendant in the suit brought by his shareholders, he was aware of the act of dispossession; that it was found by the High Court in the suit of his shareholder, Poorno Chunder Roy v. Balfour (1), and wherein the plaintiff was a party defendant, " that the land was in the possession of Government for more than twelve years as part of the pablic road at and near the public ghat.” The suit haring been brought after a lapse of three months from the date of such dispos. session, or from the date that he became aware of the fact, the suit was barred. The relinquishment of the plaintiff's tenant could not give rise to a cause of action against a stranger.

Mr. Allan (Baboo Bhairab Chandra Banerjee with him), for the respondent, contended that the decision in Poorno Chunder Roy v. Balfour (1) was passed upon the merits of the case, and did not lay down any ruling as to the Law of Limitation; that section 87, Act III of 1864 (B. C.) applied to questions of damages, and was not applicable to cases where the possession was in dispute ; that the fact of the plaintiff having been made a party defendant in the suit by the co-sharer cannot be pleaded as a bar to the present suit. No issue, as between the present plaintiff and defendant, was decided in the suit of Poornoo Chunder Roy v. Balfour (1).

Baboo Jagadanand Mookerjee in reply.

The judgment of the Court was delivered by

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LOCH, J.—The plaintiff in this case sued to recover possession of a certain portion of land of which the Municipal Commissioners of Howrah have deprived him by heaping stones thereon; and he alleges that the cause of action arose on the 15th June 1868, when his ryot, Madhusudan Daw, having been evicted by the Municipal Commissioners, gave up the land.

The Moonsiff fixed six issues to be tried in this case ; of which we need take notice at present of only four, namely, whether the cause of action arose from the date of Madhusudan's relinquishment ? whether the suit is barred by three months' limitation ? whether the suit is barred by the general law of linitation ? and whether the plea of res-judicata is applicable to the

case ?

The Moonsiff appears to have held that the plea of res-judicata applied to the case ; and that, under the provisions of section 87, Act III of 1864 (B. C.), the suit was barred by limitation.

On appeal, the Subordinate Judge differed from the Moonsiff on both those points, and remanded the case to be tried on the remaining issues, namely,

(1) 9 W. R., 535.

1870 PRICE

v. KIILAT CHANDRA GHOSE.

whether the general law of limitation was applicable ? and whether the disputed property appertained to the plaintiff's chur land, and what was its correct measurement ?

A special appeal has been preferred against the order of the Subordinate Judge remanding the case, and two points have been urged before us: first, that the principle of res-judicata applies to the case; there having been a similar suit brought by one Poorno Chunder Roy, a 10-anna sharer in this property, against the Municipal Commissioners of Howrah, in which the present plaintiff, Kbilat Chandra Ghose, was made a pro formâ defendant. In that case the plaintiff's suit was dismissed; it having been found that the Municipal Commissioners had been in possession of this property for more than twelve years. Now, though the present plaintiff was made a defendant in that case, it cannot be said that any decision which was passed in that case between Poorno Chunder and the Municipal Commissioners is a decision which will be binding as between the present plaintiff and the Municipal Commissioners for any right which the present plaintiff may have with regard to this land. It appears to me, therefore, that the judgment of the lower Appellate Court was correct on this point.

The second point taken was limitation ; and it is urged that, under the provisions of section 87, Act III of 1864 (B. C.), this suit should have been brought within three months from the date of the cause of action ; and that as

; it has not been so brought, it is barred by limitation ; and we are again referred to the case of Poorno Chunder Roy 0. Balfour (1), as showing that the Judges who decided that case considered that the provisions of section 87, Act III of 1864 (B. C.), were applicable to a case of the present kind. It is very clear, looking at the judgment of Mr. Justice Bayley, that he first determined what were the rights of the parties ; and having found that the Municipality had obtained a right by prescription, he considered that the plaintiff's case was barred by limitation ; and he then added that he therefore considered that the provisions of section 87, Act III of 1864 (B. C.), were applicable. But Mr. Justice Phear, on the contrary, considered it very doubtful, and he was not prepared to say that section 87 applied to the case ; but he agreed to the suit being dismissed, as proposed by his colleague. It is clear therefore that the special appellant can get very little assistance from that judgment. The fact is that it is necessary to look to the nature of the suit to see whether the provisions of section 87, Act III of 1864 (B. C.), are applicable or not. The present suit is a suit to recover possession on proof of the plaintiff's title, and would ordinarily be governed by the usual law of limitation, viz., twelve years from the date of the cause of action. But it is urged, on the part of the special appellant, that, where a Municipality is concerned, the ordinary law of limitation is set aside, and every action, of whatever nature it may be, against the Municipality, must, under the provisions of section 87, Act III of 1864 (B. C.), be brought within three months. It appears to me that that

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(1) 9 W. R., 535.

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