L. Moore v. Monoranjan Guha — 1908 DIGILAW 21 (CAL)

JUDGMENT Stephen, J. - This is a rule to show cause why a decree passed by the Munsif of Giridih in a suit brought under sec. 9 of the Specific Relief Act should not be set aside on the ground that the dispossession complained of being the result of a proceeding under sec. 145, Cr. P. C., no action under any section of the Specific Relief Act would lie. The facts of the case are as follows:--The land in dispute is a mica mine the title to which is disputed by the parties. The mine cannot be worked during the rains; from the 5th to the 26th October 1906 it was in the possession of the Plaintiff. On the 26th he was dispossessed by the Defendant. On the 3rd November a breach of the peace Jed to proceedings under sec 145, Cr. P. C. When the order under sec. 145 (1) was made does not appear, but it must have been between 3rd November and the 10th November when the property was attached by the Court under sec. 145 (4). The proceedings terminated on 2nd February 1907, when the Magistrate found that the present Defendant " is in possession of the mine,", and we must suppose that an order was consequently drawn up in accordance with Form No. 23 of Sch. V of the Cr. P. C. declaring that the Defendant was in possession and entitled to retain such possession until ousted in due course of law. Could the Munsif bear the case before him which was instituted after the order had been made ? The Plaintiff's right under the Specific Relief Act, sec. 9, arises if he was dispossessed otherwise than in due course of law. The dispossession on which he based his suit was that which took place on the 13th February 1907, in consequence of the order under sec. 145. I find it impossible to suppose that if the Plaintiff was dispossessed on the 13th February which seems to me doubtful, as the property was then attached by the Court, the Defendant's dispossession was otherwise than in due course of law. It is true that sec. 145. I find it impossible to suppose that if the Plaintiff was dispossessed on the 13th February which seems to me doubtful, as the property was then attached by the Court, the Defendant's dispossession was otherwise than in due course of law. It is true that sec. 145 contains no provision that a party in whose favour an order is made under the section is to be put into possession; but if he is declared entitled to possession and disturbance of his possession is forbidden, no one has a right to interfere with his taking possession and he is therefore entitled to take it. We have been referred to the case of Nagappa v. Sayad Badrudin I. L R. 26 Bom. 353 (1901) as an authority to show that the Munsif had jurisdiction in this case, in spite of the order under sec. 145. In that case a Mamlatdar acting under Act III of 1876, Bombay Acts, secs. 3, 10, refused to exercise a jurisdiction similar to that conferred by sec 9 of the Specific Relief Act, and it was held that he was wrong. In that case, however, the date of the alleged act of dispossession was anterior to proceedings under sec. 145 or at all events to the date mentioned in the order under sec. 145(1), so that a decision of the question that it was sought to raise in issue could not run counter to the effect of the order under sec. 145 (6) and the decision cannot be taken as showing that a dispossession under such an order is a dispossession otherwise than in due course of law under sec. 9, Specific Relief Act. The decision in In the matter of Chytun Chunder Roy 20 W. R. 12 (1873) is to a similar effect and is not relevant to the present case for the same reasons. 2. The result is that the rule must be made absolute and the decree of the Munsif set aside. The Petitioner is entitled to his costs in this Court, which we assess at 2 gold mohurs and his costs in the Court below. Mookerjee, J. 3. The order, which we are invited to set aside in the exercise of our revisional jurisdiction, was made by the Court below in favour of the Plaintiff, Opposite party, in a possessory suit commenced by him under sec. Mookerjee, J. 3. The order, which we are invited to set aside in the exercise of our revisional jurisdiction, was made by the Court below in favour of the Plaintiff, Opposite party, in a possessory suit commenced by him under sec. 9 of the Specific Relief Act against the Defendant Petitioner, for the recovery of a mica mine. The facts so far as they can be gathered from the record appear to be as follows : The parties to the present proceeding have had for some time past a dispute as regards the title and possession of the mine in question. Some time in November 1906 proceedings were taken by the Magistrate of Giridih under sec. 145 of the Code of Criminal Procedure and on the 9th of November 1906, the mine was attached under the second proviso to sub-sec. 4 of that section. On the 11th of February 1907, the Magistrate held that the present Petitioner, Moore, was in possession at the date of the initial order under sec. 145 and made the final order in his favour, namely, that he must be maintained in possession until evicted therefrom in due course of law. On the 18th of April 1907, the Plaintiff who had been defeated in the proceedings under sec. 145 of the Code of Criminal Procedure instituted the present action for recovery of possession under sec. 9 of the Specific Relief Act upon the allegation that he had been unlawfully dispossessed by Moore on the 13th of February 1907. The claim was resisted not only on the merits but also on the ground that the Court had no jurisdiction to entertain the suit under sec. 9 of the Specific Relief Act, inasmuch as the Plaintiff, if ever in possession, had not been dispossessed otherwise than in due course of law. The Munsif overruled this objection, found on the merits in favour of the Plaintiff, and made a decree in his favour. It is this decree which we are now invited to set aside. 4. It has been contended by the learned vakil for the Petitioner that, If the Plaintiff was at any time in possession, he was dispossessed in due course of law inasmuch as he lost possession as a necessary result of the proceedings under sec 145 of the Code of Criminal Procedure which terminated in favour of the Petitioner. 4. It has been contended by the learned vakil for the Petitioner that, If the Plaintiff was at any time in possession, he was dispossessed in due course of law inasmuch as he lost possession as a necessary result of the proceedings under sec 145 of the Code of Criminal Procedure which terminated in favour of the Petitioner. It has been argued on the other hand by the learned vakil for the opposite party that it was quite competent to the Civil Court to entertain the suit under sec. 9 of the Specific Relief Act, inasmuch as sec. 145 of the Code of Criminal Procedure does not entitle the successful party to be placed in possession by the Court and consequently the Plaintiff has lost possession otherwise than in due course of law. In support of this view, reliance has been placed upon the decision of the Bombay High Court in Nagappa v. Sayad Badrudin I. L. R. 26 Bom 353 (1901). After careful consideration of the arguments which have been addressed to us on both sides, I am of opinion that the decision upon which reliance Is placed is clearly distinguishable and that in the events which have happened, the Plaintiff' cannot be said to have been dispossessed otherwise than in due course of law, and is consequently, not entitled to maintain an action under sec. 9 of the Specific Relief Act. 5. It was pointed out by the learned Judge of the Bombay High Court in Rudrappa v. Nursing Rao I. L. R. 29 Bom. 213 (1904), that in order to enable the phrase " in due course of law " to be predicated of any matter, it is essential, speaking generally, that the thing should have been submitted to the consideration and pronouncement of the law, and " due course of law " means the regular normal process and effect of the law operating on a matter which has been brought before it for adjudication. No doubt, in a later passage, the learned Judges observe that the words must be read in their primary sense as referring to the process and operation of the law invoked by the ordinary method of a civil suit. No doubt, in a later passage, the learned Judges observe that the words must be read in their primary sense as referring to the process and operation of the law invoked by the ordinary method of a civil suit. An examination of the judgment as a whole shows, however, that the learned Judges did not intend to use " civil suit " in contradistinction to a "criminal proceeding" and, in my opinion, a matter may be said to have happened in due course of law, if it is the result and operation of the law Invoked by the ordinary method of any judicial proceeding. Judged from this point of view, it seems to be reasonably plain that the dispossession of the Plaintiff cannot be said to have happened otherwise than in due course of law. It is perfectly true that sec 145 of the Code of Criminal Procedure does not expressly authorise the Court to place the successful party in possession, but Its practical result la the same. As was pointed out by Mr. Justice Phear in Kalee Chunder v. Adoo Sheikh (4), the section provides a special remedy for a particular kind of grievance inasmuch as its effect is to replace In possession a person who has been evicted otherwise than in due course of law from landed property of which he had been in undisturbed possession and thus to prevent a powerful person from shifting the burden of proof from himself to another less able to support it. That this must be so, is obvious from the circumstance that a disobedience of the order made by a Magistrate under sec 145 of the Code of Criminal Procedure is punishable under sec. 188 of the Indian Penal Code; there is consequently an effective sanction provided by law and the result of (4) 9 W. R. 602 (1868). an order favorable to one party is that his unsuccessful opponent is practically deprived of possession. This is undoubtedly what happened in this particular case. On the 9th November 1906, the property was attached, with the consequence that whoever might have been in possession at the moment, was dispossessed. On the 11th of February 1907, the Magistrate made an order in favour of the present Petitioner. The result was that the attachment forthwith ceased to be operative and under the authority of the order of the Magistrate the Petitioner entered into possession. On the 11th of February 1907, the Magistrate made an order in favour of the present Petitioner. The result was that the attachment forthwith ceased to be operative and under the authority of the order of the Magistrate the Petitioner entered into possession. Even, if, there, fore, it be conceded that the Plaintiff' was in possession when the land was attached by the Magistrate, it must be held that the Defendant dispossessed him in due course of law, as the dispossession was the natural result of the favorable order which he obtained from the Magistrate. Under these circumstances, it can hardly be contended that it is open to the unsuccessful party in the Criminal Court to institute a proceeding before the Civil Court for recovery of possession, upon the allegation that he has been dispossessed as a result of the order of the Criminal Court, This view is perfectly consistent with the observations of their Lordships of the Judicial Committee in Dinamoni Chaudhrani v. Brojo Mohini Chaudhrain 6 C. W. N. 386 : s. c. I. L. R. 29 Cal. 187 at p. 199(1901), where Lord Lindley pointed out that although possession under an order of a Magistrate (under sec. 145, Cr. P. C.) confers no title the effect of possession remains and the person in possession can only be evicted by a person who can prove a better right to the possession himself. The case of Nagappa v. Sayad Badrudin I. L. R. 26 Bom. 353 (1901) is clearly distinguishable and is in no way inconsistent with the view indicated above. In that case, a Mamlatdar who had jurisdiction to try possessory suits under sec. 3 of the Bombay Act III of 1876 was called upon to try a suit for recovery of possession which was commenced on the 6th of March 1905, upon the allegation that the Defendant had wrongfully dispossessed the Plaintiff on the 10th October 1900. On the 20th October 1900 a Magistrate had made the initial order under sec. 145 of the Criminal Procedure Code and on the 22nd December 1900 had passed the final order under that section in favour of the Defendant in the possessory suit. It appears to have been contended before the Mamlatdar that he had no jurisdiction to hear the suit by virtue of the order of the Magistrate made on the 22nd December 1900. It appears to have been contended before the Mamlatdar that he had no jurisdiction to hear the suit by virtue of the order of the Magistrate made on the 22nd December 1900. This contention was allowed to prevail. The High Court, however, held that the view was erroneous and that the Mamlatdar had improperly refused jurisdiction. The learned Judges pointed out that the effect of the order of the Magistrate was to maintain the Defendant in possession on the ground that he had established his possession on the date of the initial order, that is, the 22nd October 1900, but that this did not in any way affect the question of possession on the 10th October 1900. Under these circumstances, it could not be successfully contended that the Mamlatdar had no jurisdiction to determine the question of possession on the latter date and to make a decree in favour of the successful party under Bom. Act III of 1876. In the case before us the facts are essentially different. Here the Court had possession of the property between the 9th of November 1900 and the 11th of February 1907. As a result of the order made in favour of the Defendant on the latter date he entered into possession two days later. It is difficult to perceive how such entry can be said to be unlawful and how the dispossession of the Plaintiff can be regarded as a dispossession otherwise than in due course of law. It may be added that the case of Chytun Chunder v. Brojo Kanto Roy (2) 20 W. R. 12(1873) is also distinguishable on somewhat similar grounds. In that case, an action was commenced under sec 15 of Act XIV of 1859. Subsequently, criminal proceedings were instituted under sec. 318 of Act XXV of 1861. The party in whose favour the Magistrate made his award contended in the Court which had seizin of the possessory suit that its jurisdiction was ousted. This objection was overruled and, in my opinion, the Court could not have adopted any other course. Not only had the two Courts, criminal and civil, to determine the question of possession as it stood upon two different dates but the Civil Court was Invited to withhold its hand by reason of an award made by the Criminal Court in a proceeding which had been instituted subsequent to the commencement of the civil suit. Not only had the two Courts, criminal and civil, to determine the question of possession as it stood upon two different dates but the Civil Court was Invited to withhold its hand by reason of an award made by the Criminal Court in a proceeding which had been instituted subsequent to the commencement of the civil suit. Such a position as this is obviously untenable. The result, therefore, is that this rule ought to be made absolute and the order of the Court below discharged with costs both here and in the Court below.