JUDGMENT : M.P. Verma and A.N. Mukharji, JJ. 1. This petition in revision has been directed against an ORDER :passed by Shri M. Hussain, Magistrate, First Class Monghyr, dated the 21st March, 1967, refusing the prayer of the petitioner to be restored to possession of a certain portion of the disputed land. There was a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as "the Code") between the parties giving rise to case No. 721/M of 1964. That proceeding was drawn up on 19th June, 1964. Before that, there was a proceeding under Section 144 of the Code. The petitioner was the second party to that proceeding. He had put forth his grievance in his written statement to the effect that, after the service of notice, the opposite party were trying to dispossess him from a portion of the land by putting up a mud wall there, and also alleged that this illegal act was done on the 12th May, 1964. The learned Magistrate, after a perusal of the affidavits and the documents filed before him, came to the conclusion that the petitioner was in possession of the disputed land, and so declared his possession. It may be mentioned that in this proceeding a Pleader-Commissioner had been appointed to measure the disputed land, and he found the disputed land to be a portion of the land belonging to the petitioner. 2. It appears that the mud wall was not removed, and so the petitioner tiled a petition under the provisions of Section 145(6) of the Code for restoration of possession over that portion of the disputed land from which he had been forcibly and wrongfully dispossessed within two months of the drawing up of the proceeding. The learned Magistrate then heard both sides and by the impugned ORDER :refused to restore the petitioner to possession of the said portion of the disputed land, as prayed for. 3. Mr. Parmeshwar Prasad Sinha, appearing for the petitioner, has urged that this ORDER :of the learned Magistrate is against the tenor of his own ORDER :, and so he had ample jurisdiction to pass an ORDER :under the provisions of Subsection (6) of Section 145 of the Code. 4. 3. Mr. Parmeshwar Prasad Sinha, appearing for the petitioner, has urged that this ORDER :of the learned Magistrate is against the tenor of his own ORDER :, and so he had ample jurisdiction to pass an ORDER :under the provisions of Subsection (6) of Section 145 of the Code. 4. The learned Magistrate has rejected this prayer on the following grounds: His first ground is that the word "May" in Section 145(6) means that it is discretionary with the Magistrate, and not obligatory on him to pass an ORDER :under this Sub-section. There cannot be any dispute that the word "may" cannot be interpreted to mean "must". Suppose, in a case where the rightful owner has dispossessed a trespasser within two months of the drawing up of the proceeding, the Magistrate is not bound to restore the trespasser to possession. So, the discretion will be always there, and in suitable cases that discretion has to be judicially exercised. The second ground of the learned Magistrate is that the ORDER :of restoration ought to have been passed in the final ORDER :which was passed under Section 145 of the Code, that is, it cannot be passed subsequently. To meet this observation of the learned Magistrate, learned counsel has relied on a Division Bench decision of the Calcutta High Court in (1) Khudiram Mandal V. Jitendra Nath (A.I.R. 1952 Cal 713) where their Lordships observed that if, in a case where the Magistrate proceeds under the first proviso to Section 145(4), he is minded not only to declare a person, dispossessed within two months, to be entitled to possession, but also to restore possession to him, and that it is not necessary that he must do so by one and the same ORDER :; it is open to him to make a second ORDER :for restoration of possession on a subsequent date. Their Lordships further observed that there is nothing in Section 145(6) which makes it mandatory that an ORDER :for restoration of possession should form an integral part of the original ORDER :and be passed at one and the same time as the original ORDER :. Their Lordships further observed that there is nothing in Section 145(6) which makes it mandatory that an ORDER :for restoration of possession should form an integral part of the original ORDER :and be passed at one and the same time as the original ORDER :. The final ORDER :would be in the form given in Schedule V, Form 22, which stops at the declaration as to right to possession and the injunction forbidding disturbance of possession, but does not incorporate any ORDER :for restoration of possession, and, later on, when a party is unable to get possession, he can apply to the Court to act under the last part of Sub-section (6) and get restored possession to him. It is somewhat of an auxiliary ORDER :, and, if an analogy is permitted, in the nature of execution. This case is on all fours with the facts of the present case, and we find ourselves in respectful agreement with the views expressed by their Lordships in this connection. 5. The third ground on which the petition has been rejected by the learned Magistrate is that there was delay in filing the petition by the petitioner for restoration of possession. We do not think this delay would bar his remedy or would oust the jurisdiction of the learned Magistrate to pass an ORDER :under Sub-Section (6) of Section 145 of the Code. It is quite possible that the successful party was trying to get possession over this raised mud wall, which was closing the lane, by peaceful negotiation and when he failed in his attempt, he rushed to court to get this remedy. So, the delay in filing the petition would not affect the merits of this case. 6. The last ground mentioned in the ORDER :of the learned Magistrate is that there was no evidence that Kali Dhobi and others had finally dispossessed the petitioner. In this connection we would refer to the ORDER :of the learned Magistrate himself contained in the last but two paragraphs of the final ORDER :. It is as follows:-- In this connection we must look to police report dated 30.4.64. S.I. of Police, Surajgarha on 25.4.64 had visited the disputed land (lane). He had found the first party engaged in constructing mud wall and closing the lane. Thus first party forcibly tried to close the disputed lane. It is as follows:-- In this connection we must look to police report dated 30.4.64. S.I. of Police, Surajgarha on 25.4.64 had visited the disputed land (lane). He had found the first party engaged in constructing mud wall and closing the lane. Thus first party forcibly tried to close the disputed lane. This proceeding under Section 145 Criminal Procedure Code was drawn up on 19.6.64. Thus this disputed lane was not closed by first party within 60 days from before 19.6.64 and as such first party cannot claim to be in possession of this disputed lane within 60 days of drawing up this proceeding under Section 145 Criminal Procedure Code. This finding clearly shows that he found that the first party (opposite party herein) had forcibly put a mud wall in the lane so as to obstruct the passage and this act was done within two months of the starting of the proceeding under Section 145 of the Code, and, therefore, it will not amount to dispossession of the successful party in the eye of law. It was, therefore, that he allowed possession to the second party--petitioner over the entire disputed land. Of course, he could have indicated in that ORDER :that the successful party would also get possession over that part of the land on which the mud wall had, been placed, if the unsuccessful party did not remove the same. That would have been the proper ORDER :in view of the finding arrived at by the learned Magistrate. So, in his own ORDER :the learned Magistrate had discussed that the opposite party Kali Dhobi tried to forcibly dispossess the second party on a date within two months of the drawing up of the proceeding. If the construction is on the land of the petitioner, it is wrongful, and the act was found to have been done forcibly so, both the conditions are fulfilled. In other words, there has been forcible and wrongful dispossession of the petitioner within two months of the drawing up of the proceeding. That being the position, the learned Magistrate ought to have allowed the prayer of this petitioner. In our opinion, substantial justice should not be foundered on the rock of technicality. In other words, there has been forcible and wrongful dispossession of the petitioner within two months of the drawing up of the proceeding. That being the position, the learned Magistrate ought to have allowed the prayer of this petitioner. In our opinion, substantial justice should not be foundered on the rock of technicality. It is apparent that the possession of the petitioner has been I found over the entire disputed land and on a small portion thereof there is a mud wall which had been forcibly and wrongfully erected there. That wall has got to be demolished by the wrong-doer. In case it is not removed by the wrong-doer, possession of that wall should be given to the petitioner. 7. Mr. Jagdish Pandey, learned counsel for the opposite party, has drawn our attention to the case of (2) H.V. Low and Co, Ltd. V. Maharaja Sir Manindra Chandra Mandy (A.I.R. 1925 Pat 33). We find that the facts of that case are entirely different. In that case the party had come to this Court because the learned Additional Deputy Commissioner, Dhanbad had refused to draw up a proceeding either under Section 144 or Section 145 of the Code. In that case it was observed that there should be dispossession which must be wrongful as well as forcible. There is no dispute concerning this proposition of law. In the present case, as has been shown above, there was both forcible and wrongful dispossession. Our attention has also been drawn to the case of (3) Balaram Singh V. Budho Devi (A.I.R. 1965 Pat 261). In that case, it was observed by a learned single Judge of this Court that the second Proviso to Subsection (4) of Section 145 is discretionary and the Magistrate is not bound to treat the party, which had been wrongfully dispossessed, to be in possession under the Proviso. This point has already been discussed by us above, and, in our opinion, in suitable case the Magistrate must take action under the second Proviso to Sub-section (4) of Section 145; though in all cases it cannot be argued that the Magistrate is bound to record an ORDER :under that Proviso. On a consideration of all these facts and the circumstances, we hold that the learned Magistrate has failed to exercise the jurisdiction vested in him, and he should not have treated himself as functus officio. On a consideration of all these facts and the circumstances, we hold that the learned Magistrate has failed to exercise the jurisdiction vested in him, and he should not have treated himself as functus officio. The result is that this application, is allowed, the impugned ORDER :of the learned Magistrate is set aside and he is directed to proceed in accordance with law in the light of the observation made above. Application allowed