Kokil Prasad Singh v. Nandoo Rai — 1984 DIGILAW 133 (PAT)

Judgment Ashwini Kumar Sinha, J. 1. This second appeal is by the plaintiff against the judgment of reversal in a suit for declaration of title and for a direction of the defendants to remove the sand form suit land. 2. The point involved in the present case is quite interesting and also Important. The point is whether a prohibitory order issued by a Magistrate in a proceeding under Sec.144 of the Code of Criminal Procedure, passed against a party disturbs/interrupts the possession for that party and he must be taken to be out of possession for that period or it only restrains the enjoyment of possession without disturbance or interruption of possession, and he continues to be in possession. 3. Shorn of all the other details, only the relevant facts need be stated in order to decide the important question of law. 4. On 28-11-1972 the plaintiff brought a suit for declaration of title and for a direction to the defendants to remove the sand by fixed date from the suit land, as shown by letters A, B, C and D in the sketch map attached to the plaint. 5. The defendants case was that the plaintiff had no title and possession over the land in suit. They pleaded that they were in peaceful physical possession over the suit land; openly, continuously, uninterruptedly and adversely to the plaintiff for more than 12 years prior to the date of the institution of the suit. According to the defendants, their possession over the land in suit had begun some time in the month of February, 1960 and thus, in short, their case was that they had perfected their title by adverse possession, which had begun from February, 1960. 6. The trial court decreed the suit and declared the title and possession of the plaintiff over the suit land and the defendants were directed to remove the sand and other materials from the suit land within one month from the date of the decree, failing which the plaintiff was given a right to get the sand and other materials removed through the process of the court. 7. The defendants preferred an appeal. The lower appellate court held that the title of the plaintiff over the suit land (described in Schedule-I of the plaint) was extinguished by adverse possession of the defendants since February, 1960. 7. The defendants preferred an appeal. The lower appellate court held that the title of the plaintiff over the suit land (described in Schedule-I of the plaint) was extinguished by adverse possession of the defendants since February, 1960. The lower appellate court, however, directed that the defendants were in possession of more area than their claim (as per compromise-Ext. 5) and hence the plaintiff was entitled to recover possession of that larger area only which was in excess of the description as given in Ext. 5. 8. Admittedly, a proceeding under Sec.144 of the Code of Criminal Procedure was started in 1970 in the court of Sub-Divisional Magistrate (numbered as Case No. 59 (M/70) on a Police report (Ext. 16) dated 31.3.1969 and a prohibitory order was passed by which both the plaintiff and the defendants were restrained from going upon the land in suit and this proceeding, ultimately, ended in a compromise by a compromise Petition dated 12.3.1970 (Ext. 5). The present suit was filed on 28th November, 1972. 9. Thus, the important question of law to be decided is whether there was interruption of possession by the defendants so long as the order of restraint lasted or whether despite the order Sec.144 of the Code, the defendants continued to be in possession and the only effect of the order of restraint was that the defendants were restrained only of the enjoyment of possession over the suit land. 10. The present appeal was placed for hearing before the Hon ble Single Judge on 7.9.1981 and in view of the conflict of views in the cases of Mahendra Prasad others V/s. State of Bihar and Anr. -- . and Gokhul Singh V/s. Jagdish Singh, 1963 0 BLJR 211. the Hon ble Single Judge referred the point to a Division Bench by his order dated 7. 9. 1981 so that the conflict of views may be resolved. It is thus that it has come to a Divison Bench only for resolving the conflict of views. 11. In order to appreciate the real import of Sec.144 of the Code, it is pertinent to quote Sub-clause (1) of the Section as it stood before the amendment in 1973. 144. 1981 so that the conflict of views may be resolved. It is thus that it has come to a Divison Bench only for resolving the conflict of views. 11. In order to appreciate the real import of Sec.144 of the Code, it is pertinent to quote Sub-clause (1) of the Section as it stood before the amendment in 1973. 144. (I) In cases where, in the opinion of a District Magistrate, a Chief Presidency Magistrate, Sub-Divisional Magistrate, or of any other Magistrate (not being a Magistrate of the third class) specially empowered by the (State Government) or the Chief Presidency Magistrate or the District Magistrate to act under this Section, (there is sufficient ground for proceeding under this Section and) immediate prevention or speedy remedy is desirable. Such Magistrate may, by a written order stating the material facts of the case and served in manner provided by Sec.134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray. After the amendment in 1973 it stands follows: 144(1) In cases where, in the opinion of a District Magistrate, a Sub-divisional or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this Section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Sec.134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or any person lawfully employes or danger to human life, health or safety, or a disturbance of the public tranquility to a riot, or an affray. 12. 12. In order to appreciate the true import of the order passed under Sec.144 of the Code, it is also pertinent to quote the last proviso of Clause (4) of Sec.145 of the Code and also Clause (1) of Sec.146 of the Code, as they stood before the amendment of 1973, and also Clause (1) of Sec.146 of the Code, as it stands after the amendment of 1973: Sec.145 (4) xx xx xx Povided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this Section. Sec.146 (1)-If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he may attach it, and draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in Sub-section (4) of Sec.145; and he shall direct the parties to appear before the civil court on a date to be fixed by him: Provided....subject of dispute. 13. After amendment in 1973. Sec.146 (1)-If the Magistrate at any time after making the order under Sub-section (1) Sec.145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Sec.145 or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute he may attach the subject of dispute until a competent Court has determined the rights of the parties, thereto with regard to the person entitled to the possession thereof: Provided....subject of dispute. (The lines have been under-lined by me for emphasis). 14 Thus, a mere perusal of the two Sections quoted above makes it obvious that there is a difference between an order passed under Sec.144 of the Code and an order of attachment under Sec.145 (4) of the Code (as it stood before the amendment of 1973) or an order of attachment passed under Sec.146 of the Code (after the amendment in 1973). 15. 15. Sec.144 of the Code stands without any ambiguity. Under this Section what a Magistrate does is that he merely directs a person to abstain from a certain act or to take certain order with certain property in his possession or under his management. Thus, the Section itself makes it clear that the property remains in possession of the party or under his management and the order merely directs the party to abstain from a certain act with certain property. By the order of restraint passed under Sec.144 of the Code, the Magistrate, in the terms of the Section itself, does not disturb the possession of the party who is in possession nor puts the property in dispute in possession of the court, Having regard to the peculiar jurisdiction conferred by Sec.144 no inference of possession can be drawn from it. It is a summary order and is in the nature of a temporary injunction intended for emergencies and cannot be utilised in a subsequent proceeding as a substantive evidence of possession of a successful party. 16. Thus, though the order of restraint is passed under Sec.144 of the Code and the party is directed to abstain from a certain act, the party continues to be in possession of the property and it is only the enjoyment of possession of which he is restrained for the period for which the order is in force. 17. The aforesaid view of law becomes clear if the provisions of Sec.145 (4) (old) and Sec.146 (1) view of the Code are looked into. Language of the provisions, as contained in Sections 144 and 145 (4) (old) 146 (1) (new) are definitely distinct in the matter of prohibitory orders. By an order under Sec.145 (4) (old) or under Sec.146 (1) (new) of the Code, attachment of the property in dispute is effected and then only the property comes into the custody of the court; whereas, by order under Sec.144 of the Code, the possession still remains with the party though he is asked not to go upon the land. 18. Thus, when a party is restrained from only enjoying the possession of the land, he cannot be taken to be out of possession for the period for which the order lasts. 19. 18. Thus, when a party is restrained from only enjoying the possession of the land, he cannot be taken to be out of possession for the period for which the order lasts. 19. For the foregoing reasons, I hold with respect that the view taken by M.P, Verma, J. in the case of Mahendra Prasad Singh (supra) is not a correct view of law. 20. The point referred to is accordingly resolved. The case is now sent back to the learned Single Judge who had referred the point to the Division Bench for resolving the conflict of views.