Disputes About Land and Water

Sub-section (3), service. A copy is served as a summons on such persons as the Magistrate directs, and at least one copy is published by being affixed to a conspicuous place at or near the subject of dispute.

Sub-section (4), the inquiry. The Magistrate shall, without reference to the merits or the claims of any of the parties to a right to possess, peruse the statements, hear the parties, receive their evidence, take such further evidence as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order under sub-section (1), in possession.

The proviso, the two month rule. If it appears that a party was forcibly and wrongfully dispossessed within two months next before the date on which the report or information was received, or after that date and before the order, the Magistrate may treat that party as if he had been in possession on the date of the order.

That proviso is what stops the section rewarding a man who takes the land by force a week before the case starts.

Sub-section (5), no dispute. Any party required to attend, or any other person interested, may show that no such dispute exists or has existed, and the Magistrate shall then cancel his order and stay all further proceedings. Subject to cancellation, the order under sub-section (1) is final.

Sub-section (6), the decision. If the Magistrate decides that a party was in possession, or is to be treated as such under the proviso, he shall issue an order declaring that party entitled to possession until evicted in due course of law, and forbidding all disturbance of that possession until such eviction; and where he proceeds under the proviso he may restore possession to the party forcibly and wrongfully dispossessed. The order is served and published as sub-section (3) requires.

Sub-section (7), death of a party. The Magistrate may make the legal representative a party and continue the inquiry; where there is a question who the legal representative is, all persons claiming to be representatives shall be made parties.

Sub-section (8), perishables. Where a crop or other produce is subject to speedy and natural decay, the Magistrate may order its proper custody or sale, and on completing the inquiry shall order the disposal of the property or the sale proceeds as he thinks fit.

Sub-section (9), witnesses. At any stage, on the application of either party, he may issue a summons to any witness to attend or produce a document or thing.

Sub-section (10). Nothing in the section derogates from his power to proceed under section 126, that is to require security for keeping the peace.

Section 165: attachment and receiver

Sub-section (1). If at any time after the section 164(1) order the Magistrate considers the case to be one of emergency, or if he decides that none of the parties was in possession, or if he is unable to satisfy himself which of them was, he may attach the subject of dispute until a competent Court has determined the rights of the parties as to who is entitled to possession.

The proviso: he may withdraw the attachment at any time if satisfied there is no longer any likelihood of a breach of the peace.

Sub-section (2), the receiver. On attaching, he may, if no receiver has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property, or appoint a receiver, who has, subject to the Magistrate's control, all the powers of a receiver appointed under the Code of Civil Procedure, 1908.

The proviso: if a Civil Court later appoints a receiver, the Magistrate shall order his own receiver to hand over possession to the civil receiver and discharge his own, and may make such other incidental or consequential orders as may be just.

So three situations lead to attachment: emergency, nobody in possession, or the Magistrate cannot tell.

Section 166: rights of user

Sub-section (1). Where an Executive Magistrate is satisfied that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water, whether claimed as an easement or otherwise, he shall make an order in writing stating his grounds and requiring the parties to attend and put in written statements of their claims. "Land or water" has the same meaning as in section 164(2).

Sub-section (2). The Magistrate perusesthe statements, hears the parties, receives and considers their evidence, takes such further evidence as he thinks necessary, and, if possible, decides whether the right exists; and section 164 applies so far as may be.

Sub-section (3). If it appears that the right exists, he may make an order prohibiting any interference with its exercise, including in a proper case an order for the removal of any obstruction.

The proviso, the three month rule. No such order shall be made:

• where the right is exercisable at all times of the year, unless it has been exercised within three months next before the receipt of the report or information; or
• where it is exercisable only at particular seasons or on particular occasions, unless it has been exercised during the last of those seasons or on the last of those occasions before that receipt.

Sub-section (4), conversion. Where a proceeding begun under section 164 turns out to be about a right of user, the Magistrate may, after recording his reasons, continue it as if begun under section 166; and where a proceeding begun under section 166 should be dealt with under section 164, he may likewise convert it.

Section 167: local inquiry and costs

Sub-section (1). Where a local inquiry is necessary for section 164, 165 or 166, a District Magistrate or Sub-divisional Magistrate may depute any Magistrate subordinate to him to make it, may furnish written instructions for his guidance, and may declare by whom the expenses are to be paid.

Sub-section (2). The report of the person so deputed may be read as evidence in the case.

Sub-section (3), costs. The Magistrate passing the decision may direct by whom the costs shall be paid, whether by a party or another party, in whole or in part or proportion, and the costs may include expenses in respect of witnesses and advocates' fees which the Court considers reasonable.

A worked example

Two brothers, Ramesh and Suresh, both claim a two acre plot near Wada. There has already been one scuffle and the police report a likely breach of the peace.

The opening order. The Sub-divisional Magistrate makes a written order under section 164(1), stating the grounds of his satisfaction, requiring both to attend on a date and to file written statements as to actual possession. A copy is served as a summons and at least one copy is affixed at or near the plot, section 164(3).

What is decided. Only who was in possession on the date of that order, without reference to the merits of either claim to a right to possess, section 164(4).

Ramesh says Suresh drove him off the land six weeks before the police report. The proviso to section 164(4) lets the Magistrate treat Ramesh as if he had been in possession on the date of the order, because the forcible and wrongful dispossession was within two months before the report was received. Under section 164(6)(a) the Magistrate may then restore him to possession.

Neither can prove possession, and the Magistrate cannot tell. He may attach the plot under section 165(1) until a competent Court determines the rights, and may appoint a receiver with the powers of a receiver under the Code of Civil Procedure, section 165(2).

The standing crop is ripening. Being subject to speedy and natural decay, the Magistrate may order its proper custody or sale under section 164(8) and dispose of the proceeds at the end.

Change the dispute. It is not about the plot but about a path across it which Ramesh says he has used for years. That is a right of user, so section 166 applies. If the Magistrate finds the right exists he may prohibit interference and order any obstruction removed, but only if Ramesh has exercised the right within three months before the report, the path being usable at all times of the year.

He began under section 164 and only now realises it is a user dispute. Section 166(4) lets him continue as if the proceeding had begun under section 166, after recording his reasons.

He wants to see the land. He may depute a subordinate Magistrate to make a local inquiry under section 167, give him written instructions, decide who pays the expenses, and read the report as evidence.

Distinctions

What this does NOT mean

The Magistrate does not decide title. Section 164(4) tells him to proceed without reference to the merits of any claim to a right to possess, and section 164(6)(a) makes his declaration good only until eviction in due course of law.

Attachment is not a decision either. It lasts until a competent Court determines the rights, and it must be withdrawn once the likelihood of a breach of the peace is gone.

Section 166 does not protect a right that has fallen into disuse. The proviso to sub-section (3) requires exercise within three months, or during the last season or occasion.

And a wrong start is not fatal. Section 166(4) lets the Magistrate convert the proceeding either way after recording reasons.

Quick revision

• Section 164(1): an Executive Magistrate, satisfied of a dispute over land or water or boundaries likely to cause a breach of the peace, makes a written order stating his grounds and calls for written statements as to actual possession.
• 164(2): land or water includes buildings, markets, fisheries, crops or other produce, and rents or profits.
• 164(4): decide possession without reference to the merits of any right to possess; proviso, forcible and wrongful dispossession within two months before the report lets the Magistrate treat the dispossessed party as in possession.
• 164(5): the order is cancelled if it is shown no dispute exists; otherwise it is final.
• 164(6): declaration of entitlement until evicted in due course of law, forbidding disturbance, and restoration where the proviso applies.
• 164(7) to (10): legal representatives; sale of perishables; summons to witnesses; and no derogation from section 126.
• Section 165: attachment where the case is an emergency, or nobody was in possession, or the Magistrate cannot tell; withdrawal when the likelihood of a breach ends; a receiver with Code of Civil Procedure powers, who hands over to a civil receiver if one is later appointed.
• Section 166: right of user; order prohibiting interference and removing obstruction; three month or last season or occasion window; conversion either way on recorded reasons.
• Section 167: local inquiry by a deputed subordinate Magistrate, written instructions, expenses; the report is evidence; costs, including witness expenses and advocates' fees.

Test yourself

1. What exactly does the Magistrate decide under section 164? Whether any, and which, of the parties was in possession of the subject of dispute at the date of his order under section 164(1), and he decides it without reference to the merits of any party's claim to a right to possess.

2. What does "land or water" include? Buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property, section 164(2).

3. A party was thrown off the land seven weeks before the police report. What follows? The Magistrate may treat him as if he had been in possession on the date of the section 164(1) order, because the forcible and wrongful dispossession was within two months before the report, and may restore him to possession under section 164(6)(a).

4. When may the subject of dispute be attached? Where the Magistrate considers the case one of emergency, or decides that none of the parties was in possession, or is unable to satisfy himself which of them was, section 165(1).

5. What is the time condition for an order under section 166(3)? Where the right is exercisable at all times of the year, it must have been exercised within three months before the receipt of the report or information; where it is exercisable only at particular seasons or occasions, during the last such season or occasion before that receipt.

6. May a proceeding begun under section 164 be continued as one under section 166? Yes, after the Magistrate records his reasons, and the converse is also allowed, section 166(4).

7. Can the report of a local inquiry be used as evidence? Yes. Section 167(2) provides that the report of the person deputed may be read as evidence in the case.