Balram Singh v. Budho Devi — 1964 DIGILAW 114 (PAT)

Judgment S.N.P.Singh, J. 1. This reference under Sec. 438 of the Code of Criminal Procedure by the learned Third Additional Sessions Judge of Monghyr is directed against the order dated the 29th of April 1963 passed in a proceeding under Sec.115 of the Code of Criminal Procedure by a first class Magistrate at Khagaria. 2. The subject-matter of the dispute was eleven and a half Dhurs of land of village Bhadas, police station Khagaria, in the district of Monghyr. Budho Devi and others were the first party, whereas, Balram Singh and others were the second party to the proceeding. The learned Magistrate, on a consideration of the affidavits, documents etc., filed before him on behalf of the parties, came to the finding that the first party was in possession over the disputed land on the date of the order. Accordingly, he declared the first party to be in possession. 3. It appears that, before the Magistrate, in was contended on behalf of the second party that as they had been forcibly and wrongfully dispossessed within two months next before the date on which the preliminary order was passed the Magistrate should declare them to be in possession under the second proviso to Sub-section (1) of Sec.145 of the Code. The preliminary order in the proceeding was passed on the 9th of November 1961. The materials on the record Indicated that the first party occupied the disputed land on the 10th of September, 1961. The learned Magistrate took the view that, as the members of the second party themselves trespassed over the disputed land on the 15th of March, 1961, their dispossession by the members of the first party would not be wrongful. In that view of the matter, he declined to act under the second proviso to Sub-section (4) of Sec.145. The learned Additional Sessions Judge, in his letter of reference, has stated that the Magistrate erred in taking the view that the taking of possession by the first party was not wrongful, and, in his opinion, the Magistrate should have declared the possession of the second party. 4. The learned Additional Sessions Judge, in his letter of reference, has stated that the Magistrate erred in taking the view that the taking of possession by the first party was not wrongful, and, in his opinion, the Magistrate should have declared the possession of the second party. 4. On the contentions raised before me the following two points arise for consideration: (1) whether, under the second proviso to sub-section (4) of Sec.145, it is incumbent on the Magistrate to declare possession in favour of the party which has been forcibly and wrongfully dispossessed within two months before the date of the preliminary order, and (2) whether the Magistrate was justified, on the facts of the instant case, in refusing to declare the second party to be in possession of the disputed ]and. 5. Mr. Anwar Ahmad, learned counsel appearing against the reference, in support of his contention that the second proviso to Sub-section, (4) of Sec.145 is permissive, relied on a Full Bench decision of the Allahabad High Court in the case of Ganga Bux Singh V/s. Sukhdin, AIR 1959 All 141 . In that case, it was held that the proviso is permissive and the Magistrate may treat the party dispossessed within two months of his order under Sec.145 (1) as being to possession. It was, further, observed as follows; "It is his discretion, no doubt a judicial discretion to be exercised on the facts of the case either to treat the party dispossessed within two months of his preliminary order as being in possession or to refuse to do so. He may, if he is of opinion that it is the rightful owner who has dispossessed a trespasser within two months of his order, very properly resfuse to take notice of the dispossession. The parties have no right to ask the Magistrate to treat the party dispossessed as being in possession." In the case of Janama Bhoi V/s. Draupadi Bhioan AIR 1952 Orissa 26, it was also held that the second proviso to Sub-section (4) of Sec.145 is discretionary. In the case of Syed Mohammad Nasir V/s. Dwarka Singh, AIR 1939 Oudh 31, it was also held that the procedure" prescribed in the proviso is not mandatory. No decision taking a contrary view was cited before me by learned counsel appearing in support of the reference. In the case of Syed Mohammad Nasir V/s. Dwarka Singh, AIR 1939 Oudh 31, it was also held that the procedure" prescribed in the proviso is not mandatory. No decision taking a contrary view was cited before me by learned counsel appearing in support of the reference. The second proviso to Sub-section (4) of Section 145 reads as follows: "Provided further that, if it appears to the Rigistrate that any party has within two months ness before the date of such order been forcibly end wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date". it is manifest from the words used in the proviso that the Magistrate has been given a discretion to treat the party which has been forcibly and wrongfully dispossessed as the party which had been in possession on the date of the preliminary order. I am, therefore inclined to agree with the contention that the Magistrate was not bound to treat the second party to be in possession under the second proviso to Sub-section (4) of Sec.145 of the Code. 6. The second point which falls for a consideration is whether the Magistrate was justified in declining to exercise his discretion in favour of the second party on the facts and circumstances of this case. As I have already indicated, the Magistrate on a consideration of the affidavits etc. filed on behalf of the parties, accepted the case put forward by the first party and found it to be in possession on the date of the preliminary order. It appears that in C. R. case No. 142 of 1961, State V/s. Balram Singh two of the members of the second party were the accused. In that case, there was an allegation of criminal trespass over the disputed land on the 15th of March, 1961, Both the accused were convicted under Sec. 447 of the Indian Penal Code by the trial Court. A supplementary affidavit along with a copy of the judgment of the Fourth Additional Sessions Judge of Monghyr in Criminal Appeal No. 307 of 1962 had been filed in this Court. It appears from the copy of the Judgment that both the accused were acquitted by the appellate Court on the ground that it was a case of bona fide dispute between the parties in regard to two nuts. It appears from the copy of the Judgment that both the accused were acquitted by the appellate Court on the ground that it was a case of bona fide dispute between the parties in regard to two nuts. It was comended before me that, even if the members of the second party were trespassers and they forcibly and wrongfully dispossessed the members of the first party on the 15th of March, 1961, their dispossession, even if the members of the first party were the rightful owners, by the members of the first party must be held to be wrongful. Reference was made by learned Counsel to a decision of the Bombay High Court in the case of Jiba Bai V/s. Chandulal Ambalal, AIR "1926 Bom 91. In that case, It was held that entry by force even by one having legal right to possession is wrongful. Even if it be held that the dispossession of the second party by the first party was wrongful in the eye of law, I am not prepared to hold that the Magistrate exercised his discretion wrongly in declining to pass an order in favour of the second party under the second proviso to Sub-section (4) of Sec.145. As observed in the Allahabad case referred to above, if the Magistrate is of the opinion that it is the rightful owner who has dispossessed the trespasser within two months of the order, it would be the right exercise of discretion to refuse to take notice of the dispossession. 7. For the reasons stated above, I do not find good ground to accept this reference. In the result, this reference is discharged.