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1975 DIGILAW 14 (PAT)

Bikrama Sah v. Bishwanath Sah

1975-01-22

UDAY SINHA

body1975
Judgment Uday Sinha, J. 1. This application in revision by the second party is directed against the final order passed in a proceeding under Sec.145 of the Code of Criminal Procedure (hereinafter referred to as the Code) in regard to a parcel of land measuring 16 dhurs within Chapra Municipality, bearing holding No. 177, Circle No. 3, Ward No. 1. 2. The case of the first party opposite party was that the disputed land was recorded in the Chapra Municipality in the name of one Amarnath Sah and that the first party had purchased it from the latter by a registered sale deed of the 5th of January, 1970 and since then the first party had been in possession of the same. It was alleged by the first party that on 5-8-1970 during the pendency of a proceeding under Sec.144 of the Code the second party forcibly broke open the house and occupied it for which he was being prosecuted under Section 188 of the Indian Penal Code, 3. The case of the second party petitioner is that he had taken settlement of the land in dispute from Ram Narain Sah, father of the said Amarnath Sah on 31-3-1949 by an unregistered document and that since then he was in possession of the land in dispute after constructing a house on it. 4. Upon a consideration of the documents and affidavits filed in the case, the learned Magistrate declared possession of the first party over the land in dispute. The learned Magistrate also held that the second party had forcibly dispossessed the first party on 5-8-1970. He, therefore, directed the police to get the house vacated, then occupied forcibly during the pendency of the proceeding, and deliver possession to the first party -opposite party. 5. Learned Counsel for the petitioner has urged the following points in support of his application : -- (1) The order of the learned Magistrate was illegal in so far as it declared possession of the first party over the disputed land on the basis of the possession of the second party before the initiation of the proceeding under Sec.144 of the Code immediately within four months of his initiation of the proceeding. (2) The learned Magistrate had failed to consider the affidavits properly and the reasons for rejecting the affidavits of second party were unsound. 6. (2) The learned Magistrate had failed to consider the affidavits properly and the reasons for rejecting the affidavits of second party were unsound. 6. In order to appreciate the first point urged by learned Counsel for the petitioner, it is essential to take note of certain dates in the sequence of events. The police report of the 19th of June, 1970 was put up before the Sub-divisional Magistrate, Chapra on 24-6-1970 on which date a proceeding under Sec.144 of the Code was drawn up. After the parties- had appeared in response to the notice thus issued, the learned Magistrate heard them and was of the view that the description of the property in dispute was wrong and, therefore, a fresh proceeding after amending the previous one was drawn up by order dated 19-8-1970. But prior to the drawing up of the subsequent proceeding under Sec.144 of the Code on 19-8-1970 the second party forcibly entered into the house on the disputed land and took possession of it on 5-8-1970. This act of the second party visited him with a criminal prosecution under Section 188 of the Indian Penal Code. The proceeding under Sec.144 of the Code initiated on 19-8-1970 was converted into a proceeding under Section. 145 of the Code on 5-10-1970. Thus the forcible dispossession of the first party took place on 5-8-1970 and the proceeding under Sec.145 of the. Code was drawn up on 5-10-1970, On this basis learned Counsel for the petitioner has contended that upon the case of the first party itself, the first party was not in possession of the disputed land within a period of two months. It was contended that the learned Magistrate had erred in taking the view that possession contemplated by Sec.145 of the Code contemplated possession on the date of the initiation of the proceeding under Sec.144 of the Code where a proceeding under Section 145 of the Code was preceded by a proceeding under Sec.144 of the Code. According to him, the crucial date on which the Magistrate has to find the possession of the parties is the date of initiation of the proceeding under Sec.145 of the Code and no other date. 7. According to him, the crucial date on which the Magistrate has to find the possession of the parties is the date of initiation of the proceeding under Sec.145 of the Code and no other date. 7. I am in complete agreement with that part of the submission of learned Counsel for the petitioner wherein it is submitted that the crucial date for finding possession over the disputed land is the date on which the proceeding under Sec.145 has been initiated and not the date of initiation of the proceeding under Sec.144 of the Code where the proceeding under Sec.145 of the Code had been preceded by a proceeding under Sec.144 of the Code. This part of the submission of learned Counsel for the petitioner is well established by decisions in State V/s. Alakh Narain Singh -- , Shah Md. Yunus V/s. Bajrang Mahto -- , Athiappa Gounder V/s. S.A. Athiappa Pandaram -- (FB) and Kamapati Venkat Ramiah V/s. Challapalli Sitharmiah -- (FB). It is obvious, therefore, that the learned Magistrate has committed an error of law in holding that the first party was in possession of the disputed property within four months immediately before the initiation of the proceeding. But this does not conclude the matter. Upon the admitted facts and the findings, it will have to be considered whether an order in terms of Sec.145(6) of the Code can be passed in favour of the first party or not. 8. The admitted position is that on 5-8-1970 the first party was dispossessed by the second party and the proceeding under Sec.145 of the Code was drawn up on 5-10-1970. The question for consideration is can the dispossession done on 5-8-1970 be considered as dispossession "within two months next before the date of such order". Learned Counsel for the petitioner has contended that the dispossession haying taken place on 5-8-1970, the period of sixty days expired on 4-10-1970 and, therefore, the dispossession by the second party was beyond the period of two months next before the date of the order. The key to a proper appraisal of the point involved in the case depends upon the interpretation of the words "within two months". In loose parlance a month is considered as consisting of thirty days and thus a period of two months is often reckoned as a period covering sixty days. The key to a proper appraisal of the point involved in the case depends upon the interpretation of the words "within two months". In loose parlance a month is considered as consisting of thirty days and thus a period of two months is often reckoned as a period covering sixty days. But this calculation loses sight of the fact that the words used in Sec.145 of the Code are "two months" and not sixty days. It will, therefore, have to be considered what does a month connote? Month has been defined in General Clauses Act as follows: Month shall mean a month reckoned according to British Calendar. In Vama Dava Desikar V/s. Murugesa Mudali (1906) ILR 29 Mad 75 it has been held that the expression "Month" meant a period of thirty days. In the Oxford Dictionary "a month" has been stated to be space of time, reckoned from any moment and either extending to the corresponding day of the next calendar month (called a calendar month) or be containing twenty-eight days (often miscalled a lunar month). In Iyers Law Lexicon a month has been described as follows: The term month whether employed in modem statutes or contract and not appearing to have been used in a different sense, denotes a period terminating with the day of the succeeding month numerically corresponding to the day of its beginning less one. If there be no corresponding day of the succeeding month, it terminates with the last day thereof. It is thus obvious that a month means a month according to the British Calendar which is equivalent to thirty days. The question still remains what would be the starting point for reckoning the period of two months or sixty days. It is well established that the day from which such period is to be reckoned shall be excluded. According to the above principle, contained in Sec.12 of the Limitation Act, the 5th of October, 1970 will have to be excluded and calculating sixty days from the 4th of October, 1970 would include the 5th of August, 1970 within the period of two months as contemplated by Sec.145 of the Code. The question as to when a period of a particular month would expire has been the subject matter of several decisions. 9. The question as to when a period of a particular month would expire has been the subject matter of several decisions. 9. In B.P. Thakur V/s. State -- the point in issue was whether a complaint in regard to an offence under the Factories Act filed on 13-5-1955 was within three months of 13-2-1955 which was the date on which the offence had come to the knowledge of the Chief Inspector of Factories. It was held therein that Sec.12 of the Limitation Act was applicable as in this case and the date on which the offence came to the notice of the Chief Inspector was to be excluded in computing the period of three calendar months and thus the complaint filed on 13-5-1955 was held to be within time. 10. In Sita Ram V/s. State -- , Desai, J, while interpreting the expression "within three months of the date on which the alleged commission of the offence came to the knowledge of the Inspector" observed as follows;- Even if this case were not governed by Sec.29 (2) and, therefore, Section 12 did not apply, under the common law the date 31-1-1958 must be excluded when computing the period of three months. "Within three months", means within the whole course of three months, i. e., before the end of the last day of three months. Anything that is done on the last day of three months is "within three months". It is stated in Strouds Judicial Dictionary, Third Edition, Volume 4, page 3320 that where something is to be done within a stated time it means that it is to be done at some time during the course of the stated time. Within three months of the date means within three months after the date. Of is the equivalent of after. Within 21 days of the execution means within 21 days after the execution See Strouds Judicial Dictionary, Volume 3, page 1964. Therefore within three months of 31-1-1958 means within three months after 31-1-1958 and 30th April, 1958 is within that period it being the last day of it. Of is the equivalent of after. Within 21 days of the execution means within 21 days after the execution See Strouds Judicial Dictionary, Volume 3, page 1964. Therefore within three months of 31-1-1958 means within three months after 31-1-1958 and 30th April, 1958 is within that period it being the last day of it. Reference may also be made to paragraph 207 of Halsburys Laws of England, Second Edition, Volume 32, page 142 which lays down the general rule that in case in which a period is fixed within which a person must act or take the consequences is that the day of the act or event from which the period runs should not be counted against him. In Re : V.S. Metha -- while interpreting the expression "within three months of the date occurring in Sec.106 of the Factories Act" Reddy, J. observed as follows: We, therefore, find that the term within three months of the date in Section 106 of the Factories Act means within three calendar months after the commission of the offence came to the knowledge of the Inspector. This interpretation based on common law as well as on the provisions of the Limitation Act and the provisions of the General Clauses Act results in the exclusion of the day of the knowledge, i. e., the date of inspection and the three months being calculated as three calendar months. In this view all the prosecutions are within time. 11. Upon a review of the authorities mentioned above, there can be no doubt that the dispossession of the first party was within two months next before the date of drawing up of the proceeding. The contention raised by learned Counsel for the petitioner in this behalf must, therefore, be rejected as being without any substance. 12. The next submission of learned Counsel for the petitioner is equally devoid of any merit. The learned Magistrate has discussed the affidavits of each of the parties individually. It may be that a different view of the oral evidence could have been taken or there may be some infirmities in the reasonings of the learned Magistrate, but that is a matter of appreciation of evidence. It is well established that a Court of revision should be very reluctant to set aside orders of lower courts on questions of appreciation of evidence. It is well established that a Court of revision should be very reluctant to set aside orders of lower courts on questions of appreciation of evidence. In my view, therefore, there is no substance in this contention and must be rejected, 13. Learned Counsel for the petitioner also contended that the learned Magistrate has erred in taking into account documents filed by the first party which came into existence after the initiation of the proceeding and thus the order of the learned Magistrate was vitiated. The sale deed in favour of the first party was executed on 5-1-1970 and the trouble between the parties started in June, 1970. There could not have been, therefore, many documents in support of the first party. But it is surprising that although the second party claimed to have been in possession of the land in question since 31-3-1949, no document of possession was produced by him except a tax receipt dated 23-1-1971 and the copy of the assessment register granted by the Municipality showing that Amarnath, the vendor or the second party was recorded as owner of the holding. Thus there is little documentary evidence in favour of the second party as well. The most valuable pieces of evidence are the oral evidence in considering the question of possession and, therefore, the affidavits filed on behalf of the second party having been considered valueless by the learned Magistrate, there was no option left with him but to declare the possession of the first party. This submission also, in my view, has no substance. 14. In the result, I find no merit in the application and it is accordingly dismissed.