Padmanabhan v. Nanu — 1955 DIGILAW 55 (KER)

Judgment :- 1. The final order passed by the Sub-Divisional Magistrate at Quilon in summary Case No. 5 of 1123 on the file of his Court, has given rise to this revision petition. The property involved in that case consists of 2 acres and 96 cents of garden land comprised in Sy. Nos. 8320 and 8321 in Munraoe Island Pakuthy. Regarding the possession of this property there was dispute between the petitioner in Summary Case No. 5/23 on the one side and counter-petitioners 1 to 8 on the other. The petitioner who claimed to be in possession of the property filed a petition before the Sub-Divisional Magistrate on 8.12.1121 complaining of disturbance caused to his possession and enjoyment of the property by the counter-petitioners. After getting a report from the police on the allegations contained in that petition and on being satisfied that there was dispute between the petitioner and the counter-petitioners about the possession of the property and that such dispute was likely to cause a breach of the peace, the Magistrate started proceedings under S. 145 of the Criminal Procedure Code, by passing a preliminary order on 11.1.1123 under sub-s.1 of that section. The property was also attached and placed in the possession of a receiver appointed by the Court. After considering the statements filed by the opposing parties and the evidence tendered by them, the Magistrate passed the final order on 28.8.1954 under sub-s. 6 of S. 145 declaring possession in favour of the petitioner and forbidding all disturbance of such possession except in accordance with the decision of a competent civil court. Counter-petitioners 1 and 5 have filed the present petition seeking a revision of that order. 2. The point raised by the revision petitioners is that the Magistrate has acted in excess of his jurisdiction in declaring possession in favour of the respondent after ignoring the possession which the revision petitioners had perfected long prior to the period of two months specified in the first Proviso to sub-s. 4 of S. 145. 2. The point raised by the revision petitioners is that the Magistrate has acted in excess of his jurisdiction in declaring possession in favour of the respondent after ignoring the possession which the revision petitioners had perfected long prior to the period of two months specified in the first Proviso to sub-s. 4 of S. 145. It is point out that the learned Magistrate was definitely of the view that the material date on which the respondent had to prove his possession is the date on which he filed the petition before the Sub-Divisional Magistrate complaining about the disturbance of his possession by the revision petitioners and that if he succeeds in proving that he had possession on that date he is entitled to a protection order under sub-s. 6 of S. 145, even if he had been out of possession for a period of more than two months prior to the date of the preliminary order under sub-s. 1. That the Magistrate was of that view, is clearly borne out by the following observations made by him in the course of the impugned order: "Since the dispute arose in 1121 Karkatagam and Ext. C petition was filed in Karkatagam by the petitioner, the possession after that date need not be taken into consideration; if the counter-petitioners trespassed after that date the property and committed waste, that would not give them any right". 3. The point raised in this revision petition has to be considered in the light of the provisions contained in sub-ss.1 and 4 of S. 145 of the Criminal Procedure Code. Sub-s.1 states the circumstances under which a competent Magistrate can start proceedings under that section by passing a preliminary order. 3. The point raised in this revision petition has to be considered in the light of the provisions contained in sub-ss.1 and 4 of S. 145 of the Criminal Procedure Code. Sub-s.1 states the circumstances under which a competent Magistrate can start proceedings under that section by passing a preliminary order. That sub-section runs as follows: "Whenever a District Magistrate, Sub-Divisional Magistrate, or Magistrate of the First Class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof with the local limits of his 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, within the time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute". Sub-s. 4 deals with the subsequent inquiry to be conducted for the purpose of ascertaining which of the opposing parties was in possession of the property at the material time. The material time is clearly indicated by the sub-section read along with the first proviso to it. The sub-section and the proviso runs as follows: "The Magistrate shall then, without reference to the merits or the claims of any such 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 respectively, consider the effect of such evidence, 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 before mentioned in such possession of the said subject: Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:". What the sub-section requires is that the Magistrate should, if possible, decide "whether any and which of the parties was, at the date of the order before mentioned, in such possession of the said subject". What the sub-section requires is that the Magistrate should, if possible, decide "whether any and which of the parties was, at the date of the order before mentioned, in such possession of the said subject". The order referred to is undoubtedly the preliminary order passed under sub-s. 1. By the Proviso to sub-s. 4 the Magistrate is empowered to ignore the effect of forcible and wrongful dispossession of any parties to the controversy if such forcible and wrongful dispossession had been within a period of two months prior to the date of the preliminary order, and to hold that the party so dispossessed had been in possession on the date of the preliminary order. The provision is clear and definite and there is no ambiguity about it. Going by the strict and literal meaning of the provision, it is clear that the Magistrate has no jurisdiction to pass a protection order under sub-s. 6 in favour of a party who has been out of possession of the property in dispute for a period of more than two months just before the date of the preliminary order. 4. Normally the party found to be in possession on the date of the preliminary order is entitled to get a protection order in his favour under sub-s. 6. The first Proviso to sub-s. 4 is in effect an amplification of this rule, and the scope of such amplification cannot be extended beyond the period of two months expressly stated in the Proviso. This is the generally accepted view regarding the scope of the first Proviso to sub-s. 4 of S. 145. Reference may be made in this connection to the decisions in Nago v. Atmaram (A.I.R. 1926 Nagpur 371), Emperor v. Baijnath (A.I.R. 1929 Oudh 526), Emperor v. Parashram (A.I.R. 1931 Nagpur 38), Meharban v. Bhola (A.I.R. 1935 Allahabad 35), Emperor v. Sundar Lal (A.I.R. 1936 Nagpur 271) Mohamood Beg v. Ehsan Beg (A.I.R. 1941 Oudh 515), Narayanan Namboori v. Unnimaya Brahamani Amma ((1122) 38 Cochin Law Reports 283), Tolan Kalita v. Bhuban Chandra (A.I.R. 1951 Assam 161), Janama v. Draupadi (A.I.R. 1952 Orissa 26), Lekshmi Narain v. Jugeshwar (A.I.R. 1954 Patna 169) and Fatima v. Rang Rao (A.I.R. 1954 Hyderabad 215). A contrary view, however, appears to have been taken in some of the decisions of the Madras High Court. A contrary view, however, appears to have been taken in some of the decisions of the Madras High Court. In Krishnam Raju v. Chintala Swami Naidu (A.I.R. 1927 Madras 816) and in R. Srinivasa v. Dasaratha Rama (A.I.R. 1929 Madras 198) it was held that the two months' period referred to in the first Proviso to sub-s. 4 of S. 145 could be extended in cases where there has been delay on the part of the Court in passing the preliminary order under sub-s. 1. The view was dissented from by the Madras High Court itself in a later case i.e. Arunachala v. Chinnadurai (A.I.R. 1945 Madras 216). The same matter was again considered by a Division Bench of the same court in Narayanan v. Kesappa (A.I.R. 1951 Madras 500) and there the earlier view taken in Krishnam Raju v. Chintala Swami Naidu (A.I.R. 1927 Madras 816) and R. Srinivasa v. Dasaratha Rama (A.I.R. 1929 Madras 198) was again affirmed. It has been ruled in that case that no appreciable time should elapse between the presentation of the complaint or the receipt of the police report and the passing of the preliminary order, and by applying the legal fiction of nunc pro tunc the preliminary order should be deemed to have been made when the Magistrate takes cognisance of the matter and satisfies himself about the urgency. The main reason given in justification of thus construing the Proviso to sub-s. 4 against the plain meaning of the express words used by the Legislature is that the delay of the court in passing the preliminary order under sub-s.1 after satisfying itself that the dispute about possession is likely to cause a breach of the peace, should not prejudice the petitioner if in fact the petition was presented within two months of his dispossession by the opposite party. It appears that these principles have been enunciated on the assumption that the Magistrate is bound to pass the preliminary order contemplated by sub-s.1 of S.145 immediately on receipt of a complaint or police report or other information that a dispute exists about possession of immovable property and that such dispute is likely to cause a breach of the peace. But it has to be pointed out that the section does not lend any support to such an assumption. But it has to be pointed out that the section does not lend any support to such an assumption. Even though the section is intended to meet an emergent situation and to avoid a breach of the peace occurring, it is significant to note that the section does not confer any jurisdiction on the Magistrate to start proceedings merely on the strength of the complaint or the police report or other information about an apprehended breach of the peace. On the other hand the section makes it clear that the Magistrate gets the jurisdiction to commence proceedings only on being satisfied that there is real dispute about possession of immovable property and that such dispute is likely to cause a breach of the peace. No doubt he may be so satisfied from the complaint petition or the police report. But it cannot be said that in every case such satisfaction must automatically follow from the complaint petition or the police report. What is required is a subjective satisfaction on the part of the Magistrate that the situation is one demanding action under S. 145. There may be instances where the Magistrate might feel the necessity of some sort of preliminary investigation for satisfying himself about the necessity of starting proceedings under S.145. This may require some time which in the nature of things must be short, because at that stage the Magistrate is not expected to go into the merits of the respective claims of possession made by the opposing parties. He has only to see if there is real dispute about possession and, if such dispute is likely to result in a breach of the peace. Since the action contemplated to be taken is to avoid any such breach of peace occurring, it is incumbent on the Magistrate to come to a speedy conclusion as to the necessity or otherwise of the commencement of proceedings under S.145. 5. When the Magistrate is satisfied of the necessity to take action under S.145, the preliminary order contemplated by sub-s.1 must immediately follow. The subsequent inquiry directed by sub-s. 4 is intended to find out which of the contending parties was in actual possession of the property on the date of the preliminary order so that an order under sub-s. 6 may be passed in favour of such party. The subsequent inquiry directed by sub-s. 4 is intended to find out which of the contending parties was in actual possession of the property on the date of the preliminary order so that an order under sub-s. 6 may be passed in favour of such party. The section as it originally stood did not empower the Magistrate to protect the possession of a party who was wrongfully dispossessed by the opposite party some time immediately prior to the date of the preliminary order. The hardship bound to follow from such a situation was specially commented upon by the Calcutta High Court in Katras Jherriah Coal Company v. Sibkrishta Daw & Company (I.L.R. 22 Calcutta 297) where one of the parties to the dispute had been dispossessed by the other party in 14 days prior to the commencement of the proceedings by the Magistrate. In that case the court took the view that the Legislature could not have intended that the party wrongfully dispossessed within so short a time just prior to the commencement of the proceedings by the Magistrate should be denied the benefit of the section as it stood then. The Legislature appears to have felt that the matter should not be left in such a state of uncertainty as to the nature of the possession which required protection at the hands of the Magistrate and that it was necessary to empower the Magistrate to protect the possession of the party who is wrongfully dispossessed within a specified period prior to the date of the preliminary order. It is obvious that the fixation of such time limit had to be arbitrary. The Legislature in its wisdom thought that the period might be fixed at two months prior to the date of the preliminary order and accordingly the First Proviso to sub-s. 4 of S. 145 was added when the Criminal Procedure Code was re-enacted in the year 1898. If it was the intention of the Legislature to treat the date of the complaint petition or of the police report as the material date for the purpose of determining possession under sub-s. 4, it would have been so stated when this Proviso was added in the year 1898. If it was the intention of the Legislature to treat the date of the complaint petition or of the police report as the material date for the purpose of determining possession under sub-s. 4, it would have been so stated when this Proviso was added in the year 1898. But it is seen that even in the Proviso it is particularly emphasised that possession has to be determined as it was on the date of the preliminary order and that in doing so any wrongful dispossession occurring within two months prior to the date of that order may be ignored and the party thus dispossessed may be deemed to have been in actual possession of the property on the date of the preliminary order in spite of such dispossession. Where the intention of the Legislature is so manifest and the same has been expressed in clear and unambiguous language, there is no scope or justification for the application of the legal fiction Nunc pro tunc and to enlarge the period fixed in the Proviso by pushing back the date of the preliminary order and to treat that order as one passed on the date of the complaint petition or the police report calling for action under S. 145. Since the Magistrate passes the preliminary order only when he is satisfied about the necessity of taking such a step, it cannot be said that the order can be deemed to have been passed on an earlier date. The date of the order is known and fixed and to construe the Proviso in such a way as to result in an alteration of that date will be definitely defeating the very purpose of the Proviso. As the Proviso stands, a party who has perfected his possession by being in undisturbed possession of the property for a period of more than two months prior to the date of the preliminary order cannot be disturbed from such possession in proceedings under S. 145. On the other hand such party is entitled to a protection order under sub-s. 6. On the other hand such party is entitled to a protection order under sub-s. 6. It is not for the Magistrate to inquire into and decide on the question of that party's right to possession of the property or as to the propriety of the means adopted by that party for securing possession and for perfecting the same by being in peaceful possession for more than the required period of two months prior to the date of the preliminary order. These are matters to be agitated before a Civil Court by the party aggrieved by the Magistrate's Order under sub-s. 6. The Magistrate's concern is merely to avoid a breach of the peace occurring on account of dispute about possession of the property and that purpose is achieved by passing a protection order in favour of the party found to be in possession at the relevant period and for the required duration. In short, an order under sub-s. 6 is in effect only a police order and it does not finally decide the rights of any of the parties to the controversy. In this view of the matter it cannot be said that even where the passing of the preliminary order has been delayed for more than two months from the date of the complaint petition or the police report, such delay would result in any serious prejudice to any of the parties to the dispute. No doubt such delay might enable one party to perfect his possession obtained by wrongful means and thus necessitate the other party to go to the Civil Court for securing his rights. Even the possibility of such a contingency cannot be a justification for going against the plain meaning of the First Proviso to sub-s. 4 and to enlarge the period of two months deliberately fixed by the Legislature. 6. In attempting to restore possession of the property to a party who had no possession on the date of the preliminary order and who had been out of possession for more than two months prior to that date, the Magistrate would be ignoring the time limit prescribed by the statute and would be interfering with the possession of a party who has already perfected his possession which has to be maintained by the criminal Court until otherwise decided by a competent civil court. The result will be a clear violation of the statute and such violation can be justified on no ground whatever. The Magistrate will be at fault in causing undue delay in taking appropriate action on a complaint petition or a police report drawing his attention to the likelihood of a breach of the peace occurring on account of dispute about possession of immovable property. The remedy for the consequence brought about by such delay does not lie in the Magistrate himself violating the mandate contained in sub-s. 4 of S.145 and in acting in excess of the jurisdiction conferred on him by that section. If the Magistrate is fully alive to his own responsibilities in taking action under S. 145, thee will be no occasion to cause any prejudice to one party or the other on account of the delay in passing the preliminary order under sub-s. 1. Since such an order is meant to meet an emergent situation alleged to be threatening a breach of the peace, it is the undoubted duty of the Magistrate to act promptly. The time limit of two months prescribed by the First Proviso to sub-s. 4 can and must be taken as an indication that he is to come to a conclusion as to the necessity or otherwise of starting proceedings under S. 145 within a period of two months from the date of receipt of a complaint petition or police report about an apprehended breach of the peace. Since no detailed investigation into the merits of the claim of possession by the disputants is expected to be made at this stage, the aforesaid two months' period must be more than sufficient for the Magistrate to come to his own conclusion as to the existence or otherwise of the situation demanding action under S. 145. If the passing of the preliminary order is not delayed beyond this period, neither of the parties to the dispute will be in a position to gain an undue advantage over the other. A party who is wrongfully dispossessed during this period could be afforded the necessary protection by invoking the First Proviso to sub-s. 4. The party who is not prompt in complaining about his wrongful dispossession will himself be responsible for the consequences of his own delay. A party who is wrongfully dispossessed during this period could be afforded the necessary protection by invoking the First Proviso to sub-s. 4. The party who is not prompt in complaining about his wrongful dispossession will himself be responsible for the consequences of his own delay. But a Magistrate who has to take action under S. 145, must realise that he should not delay the commencement of the proceedings under the section, where such action is found necessary, beyond a period of two months from the date of receipt of complaint petition or police report or other information about the likelihood of a breach of the peace on account of dispute about possession of immovable property. If the Magistrate realises his responsibility in this matter and acts in accordance with the true import of S. 145, there will be no occasion for complaint of his delay in taking action under that section having caused prejudice to either of the contending parties. Examining the scope of the First Proviso to sub-s. 4 of S. 145 in all these aspects we are clear that it has to be strictly construed and enforced and that it will not sustain the construction put upon it in Narayanan v. Kesappa (A.I.R. 1951 Madras 500). We have therefore to respectfully dissent from the view taken in that case as to the scope and effect of sub-ss.1 and 4 and also of the First Proviso to sub-s. 4 of S. 145. On this point a contrary view has been taken in Tolan Kalita v. Bhuban Chandra (A.I.R. 1951 Assam 161), Janama v. Draupadi (A.I.R. 1952 Orissa 26), Lekshmi Narain v. Jugeshwar (A.I.R. 1954 Patna 169) and in Fatima v. Rang Rao (A.I.R. 1954 Hyderabad 215). We are in respectful agreement with the view expressed in these decisions. 7. The view taken in this case by the learned Magistrate that the material date for the purpose of determining possession of the property is the date on which the respondent petitioner had filed his complaint petition, is clearly erroneous. To that extent the contention urged on behalf of the revision petitioners must prevail. But that by itself will not be a justification for interfering with the order passed by the learned Magistrate declaring possession in favour of the respondent. To that extent the contention urged on behalf of the revision petitioners must prevail. But that by itself will not be a justification for interfering with the order passed by the learned Magistrate declaring possession in favour of the respondent. It is seen that in spite of the erroneous view of law taken by the Magistrate as to the true scope of S. 145, he has made a correct approach to the evidence on record for the purpose of reaching a conclusion as to which of the contending parties had possession of the property on the date of the preliminary order. After a due consideration of such evidence the learned Magistrate has accepted the evidence adduced on behalf of the petitioner as true and has rejected the evidence adduced by the counter-petitioners as false and unreliable. Accordingly he has recorded a definite finding that the petitioner was in possession of the property at the time when the proceedings were started. It is obvious that the time referred to by him is the date of the preliminary order. The correctness of the Magistrate's finding on the question of possession of the property on the material date cannot be allowed to be canvassed in revision. Consistent with such a finding as to possession, the Magistrate was perfectly in order in declaring that the respondent petitioner is entitled to retain possession of the property until evicted therefrom in due process of law and forbidding disturbance of his possession until such eviction. The revisional jurisdiction of this court cannot be invoked for interfering with that order. 8. In the result this revision petition is dismissed. Dismissed.