Moopil Nayar v. M. C. Chandy — 1957 DIGILAW 88 (KER)

Judgment :- 1. The final order passed by the Executive First Class Magistrate at Palghat in Miscellaneous Case No. 4/1956 on the file of his Court, has given rise to this revision petition. The order was passed under Sub-s. (6) of S.145 of the Code of Criminal Procedure. Regarding the possession of the trees involved in that case there was serious dispute between the two parties arrayed on either side, and the lower court has designated these parties as A party and B party. There are three persons in each of these parties. Mannarghat Mooppil Nayar, his son Appu Panicker and his estate Manager K.V. Sankaran Nayar are the three persons forming the A party and they are the revision petitioners before this Court. M.C. Chandy of A.T.T. Colony, Coimbatore, his son M.C. Pothen and his Manager Cherian are the three persons in the B party and they are the respondents to this revision petition. A registered agreement of karar, copy of which has been marked as Ext. A(1) in the present inquiry, was entered into between Mannarghat Mooppil Nayar on one side and M.C. Chandy of A.T.T. Colony, Coimbatore, on the other, in respect of certain specified categories of trees standing in the property scheduled to the document and which forms a specified area of Attappadi Malavaram in Attappadi Amsam of Valluvanad Taluk. Subject to the terms and conditions as specified in the document, the right to cut and remove the specified classes of trees for a period of 10 years from the area specified, had been conferred on M.C. Chandy under this document. This right was being exercised by him with the assistance of the two members of the B party and by about the beginning of the year 1956 the A party began to accuse the B party of doing several unlawful acts in violation of the express terms of the agreement Ext. A(1). These accusations were all denied as baseless and unfounded by the B party who maintained that nothing was being done contrary to the terms of the document. This controversy reached a crisis when the lawyer's notice Ext. A(3) dated 29.2.1956 was issued on behalf of Mooppil Nayar to M.C. Chandy intimating him that Moopil Nayar has revoked the permission granted under Ext. A(1) because of the series of unauthorised acts narrated in the notice. To this notice, the prompt reply Ext. This controversy reached a crisis when the lawyer's notice Ext. A(3) dated 29.2.1956 was issued on behalf of Mooppil Nayar to M.C. Chandy intimating him that Moopil Nayar has revoked the permission granted under Ext. A(1) because of the series of unauthorised acts narrated in the notice. To this notice, the prompt reply Ext. A(4) was sent by M.C. Chandy through his own lawyer, repudiating all the allegations made against him and questioning Moopil Nayar's right to revoke Ext. A(1). Thus the relationship between the two parties became strained and the police reported to the Executive First Class Magistrate at Malappuram that the dispute between the parties was likely to result in a breach of the peace and that action may be taken to prevent the same. Since the south-west monsoon was fast approaching, the members of the B party were anxious to remove the timber which they had already cut and stacked and thus to prevent them from being washed away during the rains. The members of the A party were ready to oppose such a move on the part of the members of the B party and this was stated to be the imminent cause threatening a breach of the peace. The Magistrate felt that he must take immediate and effective action to maintain peace and accordingly he initiated proceedings under S.144 of the Code of Criminal Procedure, and registered a case as M.C. 13/1956. By the order passed by him on 16th April 1956 the members of the A party were restrained from interfering with the removal from the Attappady Valley of the timber which the B party had already cut and stacked. The members of the B party were also restrained from continuing the process of cutting trees for the purpose of removal from the forest area. The order thus restraining both the parties in the manner already stated, was to be in force for a period of 6 weeks. Against that order the A party preferred a revision petition to the Madras High Court (Criminal Revision Petition No. 399 of 1956) and obtained an interim order suspending the Magistrate's order permitting the B party to remove the timber that had already been collected by them. Against that order the A party preferred a revision petition to the Madras High Court (Criminal Revision Petition No. 399 of 1956) and obtained an interim order suspending the Magistrate's order permitting the B party to remove the timber that had already been collected by them. On the objection preferred by the B party, the interim order was vacated and the members of the B party were permitted to remove the timber subject to certain conditions one of which was that they should give security for a sum of Rs. 35000 to the satisfaction of the First Class Magistrate at Malappuram. In the same order it was further stated that the members of the B party shall not further cut any trees till the case already taken up by the Magistrate was converted into one under S.145 of the Code of Criminal Procedure, and duly disposed of. Subsequently on 28.4.1956 the Magistrate passed a preliminary order under sub-s. (1) of S.145 of the Code of Criminal Procedure and directed the parties in M.C. 13 of 1956 to appear before him on 11.5.1956 and file "written statements of their respective claims as respects the fact of actual right for use and possession of the subject of dispute". They filed their written statements and adduced evidence to substantiate their case of actual possession of the subject-matter in dispute viz., the trees which M.C. Chandy of the B party was entitled to cut and remove in accordance with the terms and stipulations embodied Ext. Al. In the meanwhile, the A party had filed a petition in the Sessions Court of South Malabar at Kozhikode, for a transfer of the case from the file of the First Class Magistrate at Malappuram to any other competent court. That petition was allowed and the case was transferred to the file of the executive First Class Magistrate's Court at Palghat. The Court proceeded with the inquiry, and after a due consideration of the evidence on record passed the final order under sub-s. (6) of S.145 of the Code of Criminal Procedure declaring that in respect of the trees which are still available for being cut and removed as per the terms of the agreement Ext. The Court proceeded with the inquiry, and after a due consideration of the evidence on record passed the final order under sub-s. (6) of S.145 of the Code of Criminal Procedure declaring that in respect of the trees which are still available for being cut and removed as per the terms of the agreement Ext. A(1), possession was with M.C. Chandy of the B party, to the extent necessary to cut and remove them and that he is entitled to retain such possession until ousted by due process of law. The present revision petition by the A party is directed against this order. 2. One of the points raised on behalf of the A party is that under the karar Ext. A(1) no possession of any land was transferred to M.C. Chandy of the B party, the only right conferred on him being the right to cut and remove certain classes of trees subject to certain terms and conditions. On this basis it is urged that the dispute between the parties about the possession of these trees will not give jurisdiction to the Magistrate to initiate proceedings under S.145 of the Code of Criminal Procedure. I see no force in this contention. Dispute about actual possession of standing trees would also come within the scope of S.145. Sub-s. (1) of that section expressly confers jurisdiction on a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class, to take action under that section when he is satisfied that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction. What all things would come within the expression "land or water" for the purpose of this section, has been made clear in sub-s. (2), which is in the following terms: "For the purpose of this section, the expression "land or water" includes buildings, markets, fisheries or other produce of land, and the rents or profits of any such property". What all things would come within the expression "land or water" for the purpose of this section, has been made clear in sub-s. (2), which is in the following terms: "For the purpose of this section, the expression "land or water" includes buildings, markets, fisheries or other produce of land, and the rents or profits of any such property". In view of such an extended meaning given to the expression "land or water" for the purpose of attracting jurisdiction under S.145, there can be no doubt that standing trees would also come within the said expression and that if the Magistrate is satisfied that a breach of the peace is threatened as a consequence of the dispute about the possession of such trees, he is bound to take action under S.145 and such action cannot be characterised as an action without jurisdiction. If crops or other produce of land could be deemed to be immovable property for the purpose of S.145, much more so should be the case of tress growing on land. In Maharaja Surjakanta Acharya v. Maharaja Jakadindra Nath Roy (11 Calcutta Weekly Notes 198 at 201) and in Ali Mohmmed Mondal v. Fakriuddi Munshi (24 Calcutta Weekly Notes 1039 at 1045) it was pointed out that trees growing on land come within the expression "produce of land" as used in sub-s. (2) of S.145. The decision in Emperor v. Narsingdas (AIR 1934 Nagpur 112) has gone one step further. In that case the dispute was about the possession of and the right to collect the lac produce from a Zamindari forest. While recognising that lac itself would not be immovable property, the view taken in that case was to the effect that lac can only be propagated on trees and is so connected with the trees that any dispute with regard to it must also involve a dispute with regard to land or right to enter upon that land for the purpose of taking the lac and that therefore action under S.145 of the Code of Criminal Procedure would be justified if dispute about the possession and right to collect lac from the trees was likely to result in breach of the peace. For the purpose of the present case it is not necessary to examine the correctness of the extreme view taken in the aforesaid case. For the purpose of the present case it is not necessary to examine the correctness of the extreme view taken in the aforesaid case. Here the dispute is about the possession of standing trees covered by the karar Ext. A(1) and also about the right to cut and remove those trees. Since the Magistrate was satisfied in the present case that such dispute would result in a breach of the peace, he was clearly within his jurisdiction in taking action under S.145. 3. The next point urged on behalf of the A party is that the Magistrate, who had already issued an order against the B party under S.144 of the Code of Criminal Procedure, could not thereafter continue the same proceedings as one under S.145 by passing a preliminary order as contemplated by sub-s. (1) of that section and then to proceed to enquire into the question as to which party was in actual possession of the subject-matter of the dispute at the relevant time. It is argued that the order passed under S.144 was in itself sufficient to prevent any breach of the peace occurring and hence there was no occasion for the Magistrate to apprehend a breach of the peace so as to justify the initiation of proceedings under S.145. I see no force in these contentions also. Under both S.144 and 145 of the Code the Magistrate concerned is given a very wide discretion in deciding upon the particular mode of action to be taken to avert a threatened breach of peace within his territorial jurisdiction. It is for him to decide which would be the most effective mode of action to meet the crisis. In cases where breach of peace is threatened on account of disputes about possession of immovable property, the proper sections to be resorted to under normal circumstances would be S.145. But that does not mean that in the case of such disputes the Magistrate has no jurisdiction to act under S.144 in the first instance and then to convert the same into proceedings under S.145. But that does not mean that in the case of such disputes the Magistrate has no jurisdiction to act under S.144 in the first instance and then to convert the same into proceedings under S.145. If the situation is so grave and dangerous as to brook no delay on account of the consideration whether the threatened breach of peace is really on account of dispute about possession of immovable property, the Magistrate will certainly be justified in issuing a prohibitory order under S.144 against either of the contending parties or against both, directing them not to do any act which might endanger peace. It is significant to note that an order under this section is to be in force normally for a period of two months only and that the order does not finally decide any of the claims of the opposing parties. Within this period the Magistrate will get sufficient time to satisfy himself as to the exact nature of the disputes between them. If he is satisfied that the dispute relates to the possession of immovable property, it will be open to him to modify the order already issued under S.144 and to initiate proceedings under S.145. This position is made clear by sub-s. (4) of S.144 which states that: "Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section by himself or by any Magistrate subordinate to him, or by his predecessor in office". In Shebalk Singh v. Kamaruddin Mandal (ILR 2 Patna 94) the scope of this sub-section was considered and it was pointed out as follows: "S. 144 is a temporary measure which the Magistrate in his discretion may adopt for the immediate prevention amongst others of "a disturbance of public tranquility or a riot or an affray". Now, the threatened breach of the peace may be in connection with land. In this sense the Magistrate may in the first instance pass an order under S.144 against both or any one of the parties threatening to commit a breach of the peace in connection with the possession of land. Now, the threatened breach of the peace may be in connection with land. In this sense the Magistrate may in the first instance pass an order under S.144 against both or any one of the parties threatening to commit a breach of the peace in connection with the possession of land. Therefore the real question is not as to the power of the Magistrate in the first instance to issue an order under S.144 to prevent a breach of the peace concerning any land, but that what action the Magistrate ought to take after he comes to know at any stage of the proceeding under S.144 that the danger of a breach of the peace is due to a bona fide dispute, and not a mere pretence as to the possession of the land. The answer is that the Magistrate must then at once start an enquiry under S.145 of the Code either in continuation of the order passed under S.144 or in supersession thereof, inasmuch as the condition laid down for an enquiry under S.145 "that a dispute likely to cause a breach of the peace exists concerning any land", to quote the words of the section, will then have been satisfied. The section is imperative and enjoins upon the Magistrate to start an enquiry under that section whenever (directly) he "is satisfied from the police report or otherwise, such as an enquiry under S.144, that a dispute (real and bona fide, and not a mere pretence) exists". The Magistrate cannot refuse in such a case to initiate proceedings under S.145 for, in that case he will be refusing to exercise a jurisdiction vested in him by law and shirking the duty enjoined upon him by the section". The procedure adopted in the present case by the lower court is seen so have been strictly in accordance with these principles. The first order passed on 16.4.1956 under S.144 clearly indicates that while issuing the prohibitory order against the B party, the Magistrate was conscious that he had to consider the nature of their claims at a subsequent stage. Pending such consideration, the Magistrate thought that there was sufficient ground "to proceed under S.144, Criminal Procedure Code, and that immediate action was necessary". Pending such consideration, the Magistrate thought that there was sufficient ground "to proceed under S.144, Criminal Procedure Code, and that immediate action was necessary". This is obvious from the following observations in that order: "As regards the further cutting and removal of the forest growth (trees etc.,) in the Attappadi valley by the counter-petitioners of the B party, there is no emergency in this case and no speedy remedy is called for in this regard so far as the counter-petitioners of the B party are concerned. The S.I. of Police, Mannarkad, who is present in Court, states that there is likelihood of imminent breach of peace if the counter-petitioners of the B party further attempt to cut the forest growth (trees etc.) standing on the ground". Accordingly the members of the B party were restrained from cutting and removing the forest growth (trees etc.) in the Attapadi valley. It was further stated that the order is to be in force for a period of 6 weeks. 4. The only effect of the aforesaid order as against the members of the B party was that they were prevented from cutting and removing trees from the Attappady valley for a period of 6 weeks. Such an order could not in any way affect their possession of these trees, if they had such possession on the date of the order. On the expiry of the 6 weeks they could exercise their possessory rights by cutting and removing the trees and any obstruction by the members of the A party would again have brought about the same situation threatening a breach of the peace. The Magistrate appears to have realised this position and so he had to convert the proceedings into one under S.145, by passing the preliminary order under sub-s. (1) of that section within a fortnight of the first order under S.144. The preliminary order under sub-s. (1) of S.145 was passed on 28.4.1956. One objection raised against this order is that the statement in the preliminary order that the dispute between the parties is likely to cause a breach of the peace, is an incorrect statement, because on 28.4.1956 when the order under S.144 was in force, there could not be any apprehension of breach of peace. One objection raised against this order is that the statement in the preliminary order that the dispute between the parties is likely to cause a breach of the peace, is an incorrect statement, because on 28.4.1956 when the order under S.144 was in force, there could not be any apprehension of breach of peace. As already pointed out, the Magistrate was satisfied even when he issued the order under S.144 that a breach of the peace was likely to occur on account of the dispute between the two rival parties, regarding the possession of the trees and the right to cut them and the same situation was to emerge again with the same or with greater intensity as soon as the period of the prohibitory order expired. Thus the likelihood of a breach of the peace was there as stated in the preliminary order passed under S.145. In the opening portion of that order, it is also stated that the police had reported to the Magistrate that each of the opposing parties was making efforts to establish by force their right for use of the subject-matter of the dispute. These facts were sufficient in themselves to justify the Magistrate's apprehension that a breach of the peace was likely to occur and that the situation demanded action under S.145 of the Code. The statement in the preliminary order that "the order passed in M.C. 13 of 1956 under S.144 has been taken on appeal to the High Court of judicature at Madras and the High Court of judicature had ordered the conversion and disposal of the case under S.145, Criminal Procedure Code" was also adversely commented upon by the learned counsel for the A party. In the order passed by the Madras High Court on Criminal M.P. No. 551/1956 in Crl. R.P. No. 399/1956, allowing the B party to remove the timber that they had cut and stacked in the Attappady Valley after giving security for Rs. 35,000, there was a direction to the following effect: "The parties will not further cut any trees till the case in the court is converted into one under S.145 of the Criminal Procedure Code and disposed of". It is obvious from this direction that the propriety of the order passed against the B party under S.144 must have come up for discussion at the time of the hearing of the aforesaid petition. It is obvious from this direction that the propriety of the order passed against the B party under S.144 must have come up for discussion at the time of the hearing of the aforesaid petition. The High Court appears to have felt that in the nature of the dispute the proper course to be adopted was to initiate proceedings under S.145. That must have prompted the observation regarding the conversion of the proceedings under S.144 into one under S.145 even though that matter had not been directly agitated by the B party by filing any revision petition before the High Court. Apart from this aspect of the matter, I do not think there is any basis for the criticism that the aforesaid observation of the High Court must alone have induced the lower court to pass the preliminary order under S.145. Even if the Magistrate was so influenced by the observation in the High Court order, there is nothing objectionable in it because the Magistrate was only adopting the right course which he was bound to take even in the absence of any such observation. The preliminary order, no doubt, makes reference to this observation. But at the same time it is clear that the Magistrate was even otherwise fully satisfied that the dispute between the parties regarding the possession of the trees was likely to result in a breach of the peace and that he had to take action under S.145. Thus every one of the objections raised against the preliminary order has to be ruled out as unsustainable. 5. The lower court's order is again attacked on the ground that the court erred in passing the order in question without deciding upon the exact nature of the rights conferred by the karar Ext. A(1) and also the legal consequences following from the revocation of the karar by the A party by issuing the notice Ext. A(3). These matters could be properly and legally decided only by the civil court and hence the Magistrate was right in his view that it is not for the criminal court to pronounce on such questions relating to civil rights. A(3). These matters could be properly and legally decided only by the civil court and hence the Magistrate was right in his view that it is not for the criminal court to pronounce on such questions relating to civil rights. The Magistrate was really concerned with the fact of actual possession of the trees in question at the relevant period and for the purpose of deciding that matter he had necessarily to examine the nature and scope of the rights obtained by M.C. Chandy on the strength of the karar Ext. A(1). For this purpose the Magistrate has considered the relevant provisions of the document and has come to the definite conclusion that possession of the trees which he was authorised to cut and remove really passed on to him and that he continues to retain such possession in spite of the notice Ext. A(3) purporting to revoke the karar. No doubt, the karar Ext. A(1) has reserved certain rights with Moopil Nayar and it is also made clear that Mooppil Nayar will be at liberty to lease out the land comprised within the property scheduled to Ext. A(1) to other persons without prejudice to the right of M.C. Chandy to cut and remove the trees as per the terms of Ext. A(1). Ext. A(10) series are such documents executed in favour of third parties by Moopil Nayar in respect of different portions of the land within the area covered by the schedule to Ext. A(1). It is significant to note that in every one of these documents the right of M.C. Chandy to cut and remove the trees as per the terms of Ext. A(1) has been expressly reserved. These facts only go to confirm the fact that possession of the trees in question had already passed on to M.C. Chandy under the terms of Ext. A(1) and that such possession was being recognised by Mooppil Nayar in the subsequent documents executed by him in favour of others. Under Ext. A(1), M.C. Chandy was also authorized to open new traces and roads and put up sheds for the purpose of enabling him to cut and remove the trees as per the terms of Ext. A(1). Under these circumstances it cannot be said that the right conferred on him under the document was a mere licence terminable at the will and pleasure of the grantor Mooppil Nayar. A(1). Under these circumstances it cannot be said that the right conferred on him under the document was a mere licence terminable at the will and pleasure of the grantor Mooppil Nayar. On the other hand, the right conferred on M.C. Chandy amounted to a licence coupled with a grant. It was also stipulated in Ext. A(1) that in the event of M.C. Chandy violating the terms of Ext. A(1) and doing acts contrary to the undertaking made in the document, Mooppil Nayar will be at liberty to revoke the power conferred by Ext. A(1). This right of revocation was exercised by Mooppil Nayar by issuing the notice Ext. A(3) on 29.2.1956. By the reply notice Ext. A(4) issued on behalf of M.C. Chandy, the allegations made against him in Ext. A(3) were denied and the validity of revocation of the authority conferred on him under Ext. A(1) by the issue of Ext. A(3) notice, was also challenged. Such being the position taken up by the contending parties, the question as to whether the several unauthorised acts attributed to M.C. Chandy are true or not, can be decided only after proper investigation of the same. Such an investigation and consequent decision as to whether there had been a valid revocation of the karar Ext. A(1), are matters to be agitated before the civil court. In a proceeding under S.145 of the Code of Criminal Procedure all that the Magistrate is concerned is to see whether the revocation under Ext. A(3) relied on by Mooppil Nayar had really put an end to M.C. Chandy's possession of the trees in question. If it is found that possession continues with M.C. Chandy in spite of such revocation, the Magistrate is bound to protect such possession and to direct the other party to the civil court to protect and to safeguard the rights as claimed by him. On the question of actual possession of the trees, the conclusion reached by the Magistrate on the evidence on record is that the revocation notice Ext. A(3) did not succeed in putting an end to the actual possession of M.C. Chandy and that such possession continued to be with him even after the date of the revocation. The affidavit Ext. On the question of actual possession of the trees, the conclusion reached by the Magistrate on the evidence on record is that the revocation notice Ext. A(3) did not succeed in putting an end to the actual possession of M.C. Chandy and that such possession continued to be with him even after the date of the revocation. The affidavit Ext. B(7) from the Adhikari of Attappadi Amsom is the main item of evidence relied on by the Magistrate in support of his finding that even after the date of Ext. A(3) notice the members of the B party were exercising their possessory rights over the trees in question and were continuing to cut and remove them right up to 16.4.1956, the date on which the order under S.144 of the Criminal Procedure Code was issued restraining them from further cutting of the trees. Thus it is clear that the Magistrate arrived at the conclusion that exclusive possession of the trees in question continued to be with M.C. Chandy at all relevant periods and that neither the A party nor anybody else had obtained exclusive or joint possession of these trees at any time subsequent to the karar, Ext. A(1), after a due consideration of all the relevant aspects of the matter. The finding so recorded by him does not call for any interference in revision. 6. In the attempt to get over the effect of the impugned order, an argument was advanced on behalf of the A party that the lower court erred in taking action under S.145 and that the proper section that could attract the dispute between the parties is S.147 of the Code of Criminal Procedure. I do not see any force or substance in this argument. The real dispute between the parties is about the actual possession of the trees in question and not about the right to cut and remove them. It is common ground that the right to cut the trees as specified in Ext. A(1) had been conferred on M.C. Chandy subject to the terms and conditions embodied in the document. This right he will be entitled to exercise so long as possession of the trees continues to be with him and so long as the document has not been effectively cancelled. A(1) had been conferred on M.C. Chandy subject to the terms and conditions embodied in the document. This right he will be entitled to exercise so long as possession of the trees continues to be with him and so long as the document has not been effectively cancelled. The present challenge that he has lost that right, is based on the allegation that the right has been properly and effectively revoked by the issue of the Notice Ext. A(3) and that his possession of the trees thereby came to an end. Thus the real controversy between the parties is whether M.C. Chandy lost his possession of these trees. It is the dispute regarding such possession that was threatening a breach of the peace and hence S.145 is the proper section under which proceedings had to be initiated by the Magistrate. The contention that the Magistrate erred in taking proceedings under that section cannot therefore prevail. It was further contended that the preliminary order passed by the Magistrate had called upon the parties to file written statements of their respective claims "as respects the fact of actual right for use and possession of the subject in dispute" and not about the fact of actual possession of the subject of dispute and as such the Magistrate was not entitled to inquire into the fact of such actual possession and to record a finding regarding the same. No doubt the closing portion of the preliminary order was not very happily worded. But the order read as a whole could not leave any room for doubt that the Magistrate was calling upon the parties to state their case about the fact of actual possession of the subject of dispute and also to adduce evidence to make out the possession claimed by each party. That the parties understood the preliminary order in this light, is also clear from the written statements filed by them. The A party was maintaining that possession of the subject in dispute was exclusively with Mooppil Nayar and not with M.C. Chandy. The B party, on the other hand, was equally assertive that possession was with M.C. Chandy and that such possession subsequent to the date of Ext. A(1) had never reverted to Mooppil Nayar. The A party was maintaining that possession of the subject in dispute was exclusively with Mooppil Nayar and not with M.C. Chandy. The B party, on the other hand, was equally assertive that possession was with M.C. Chandy and that such possession subsequent to the date of Ext. A(1) had never reverted to Mooppil Nayar. This position was further emphasised by stating in Para.6 of the written statement of the B party that "in any view of the case, since the B party has been in actual possession of the subject of dispute, the revocation, even if it is valid, does not entitle the A party to contend that the B party has no possession or that the A party has possession of the subject of dispute". Thus it is clear that the parties had no misapprehension about the nature of the disputes which formed the basis of the preliminary order. They were clear that the inquiry related to the actual possession of the subject of dispute and hence it cannot be said that any prejudice was caused to either party on account of any defect in the wording of the preliminary order. 7. Lastly, it was urged that in an inquiry conducted under S.145 the Magistrate has to decide as to which party was in possession of the subject of dispute on the date of the preliminary order and that in view of the order passed on 16.4.1956 under S.144 of the Code, it could not be found that possession was with M.C. Chandy on 28.4.1956, the date of the preliminary order, under S.145. I see no substance in this contention also. The proviso to sub-s. (4) of S.145 states that if it appears to the Magistrate that any party has, within 2 months next before the date of the preliminary order, been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession on the date of the preliminary order. The benefit of this proviso could naturally go to M.C. Chandy if the order under S.144 passed on 16.4.1956 had enabled the A party to forcibly or wrongfully dispossess him of the subject of dispute. The preliminary order was passed within 12 days of the date of the order under S.144. The benefit of this proviso could naturally go to M.C. Chandy if the order under S.144 passed on 16.4.1956 had enabled the A party to forcibly or wrongfully dispossess him of the subject of dispute. The preliminary order was passed within 12 days of the date of the order under S.144. Even apart from this aspect of the matter, it is clear that the order under S.144 merely restrained him from exercising his right of cutting and removing the trees in question. But it did not in any way affect his possession of such property. Thus in spite of the order under S.144 possession continued to be with him right up to the date of the preliminary order under S.145 and even thereafter. The final order passed by the Magistrate under S.145 is not bad for any of the grounds urged against it by learned counsel for the revision petitioner and it calls for no interference in revision. 8. In the result this revision petition is dismissed.