Dharam Chand and others vs State and others

M.R. Sharma, J.—This judgment will dispose of Criminal Revision No. 274 of 1973 and Criminal Original No. 142-C of 1973.

For facility of reference, the brief facts of Cr. Revision No. 274 of 1973 are given. This petition is directed against the order dated September 29, 1971 passed by the learned Sub-Divisional Magistrate, Nawanshahr, in proceedings u/s 145, Criminal Procedure Cede, intiated by the Station House Officer, Nawanshahr. The petitioners asserted before the learned Magistrate that they took possession of the disputed land about or 10 years back and had been continuously cultivating the same on the other hand the respondents asserted that this land had been allotted in their favour by the Rehabilitation authorities. Pursuit to the order of allotment, the Tehsildar (Sales)-cum-Managing Officer ordered on March 16, 1971, that they should be put in possession of this land. Since this land was held under Cultivation, only symbolical possession was delivered to them. The petitioner preferred appeals against this order which were dismissed by the authorised Settlement Commissioner. After the decision in appeal, the respondents were able to secure possession of this land on May 29, 1971 with the help of the police. The learned trial Magistrate considered the affidavits filed by both the parties and came to the conclusion that since the respondents were put in possession by the police pursuant to the earlier order passed by the Managing Officer, their possession could not be held to be forcible and wrongful. Consequently, be did not deem it proper to restore the possession of the land to the petitioners. The petitioners filed a revision petition. The learned Additional Sessions Judge, Jullundur, made a detailed discussion of the history of the case, and about the merits be made the following observations:--

The documentary evidence, placed on the record, left no doubt about it that it was party No. 2, which was in actual possession of the land. The mere fact, that party No 1 had bean in possession for some 8 to 10 years, before party No. 2 was put in actual possession would be of no consequence, in these proceedings, which were summary proceedings, to find out actual possession of a party over immoveable property. The impugned order was, thus, quite legal proper and correct.

In my considered opinion, the approach made by the learned Additional Sessions Judge is wholly incorrect. Even if the proceedings u/s 145, Criminal Procedure Code, are of a summary nature, the Magistrate exercising jurisdiction is not debarred from giving a finding about the actual possession of the land in dispute of either one or of the other party. When the respondents were giving symbolical possession pursuant to the order of the Managing Officer, that order exhausted itself. Thereafter, the respondents should have approached either the rehabilitation authorities for a fresh order or they should have filed a civil suit for getting possession of this land. They cannot take the help of the police and forcibly dispossess the petitioners and then urge before a Magistrate exercising jurisdiction u/s 145, Criminal Procedure Code, that discretion should not be exercised in favour of the aggrieved party who has been dispossessed of land with the help of police. The learned counsel for the respondents has brought to my notice a Single Bench decision of the Patna High Court in Balram Singh and Others Vs. Budho Devi and Others, . In this case, the learned Judge observed as follows :--

It is manifest from the words used in the proviso that the Magistrate has beer 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 section 145 of the Code.

With utmost respect to the learned Judge, I have not been able to concur with the view taken by him. It is settled law that a proviso merely qualifies the section in certain specified cases and cannot nullify the main provision. Section 145(4) of the Code of Criminal Procedure lays down that the Magistrate "without reference to the merits or the claim of any of such parties to a right to possess the subject of dispute, peruse the statements" etc. etc. This shows that actual right to possession was not to be regarded as the chief criterion u/s 145, Criminal Procedure Code. This section was brought on the statute book for providing a speedy remedy in cases of disputes relating to immoveable property which endanger peace. The use of the word ''may'' in second proviso to sub-section (4) of section 145 does not mean that even if the learned Magistrate has sufficient material on the file warranting the finding that party ''A'' had been wrongfully dispossessed the same should not be given back the possession of land. Such an interpretation would indeed go against the scheme of the section. Furthermore, under our system of laws, even a trespasser has a right to continue in possession of property so long as he is not devested of his possession in accordance with the procedure established by law. If persons, who hold bona fide belief that they are entitled to dispossess the trespasser, are permitted to go on the disputed land of their own accord and are allowed to put the peace and tranquility into danger, the provisions of section 145, Criminal Procedure Code, will have no meaning. In R.H. Bhutani Vs. Miss Man J. Desai and Others, , their Lordships of the Supreme Court observed as under :--

The word ''dispossessed'' in the second proviso means to be out of possession, removed from the premises, ousted, ejected or excluded. Even where a person has a right to possession but taking the law into his hands makes a forcible entry otherwise than in due course of law, it would be a case of both forcible and wrongful dispossession : (of Eduick v. Howkes (1881) 18 Ch. D. 199 and Bai Jiba Vs. Chandulal Ambalal, . Sub-section (6) of section 145 in such a case permits the Magistrate to direct restoration of possession with the legal effect that is valid until eviction in due course of law.

In view of this authoritative pronouncement made by the highest Court, it is not necessary deal with the other judgments cited by the learned counsel for the respondents.

I am of the considered view that the petitioners in this case were in possession of land on a date within two months before the date of the preliminary order passed by the learned Magistrate. Since they have not been dispossessed in execution of a lawful order or a decree passed by a competent authority or a Court, their dispossession from land in dispute was wrongful. It was also forcible because on the admitted facts of this case the respondents took the help of the police. In a situation like this, it was not necessary for the petitioners to appear on the scene and to have their ribs broken for the purpose of asserting that they have been forcibly dispossessed of this land. The learned trial Magistrate, in these circumstances, ought to have restored possession to them leaving the respondents to seek their remedy in accordance with law. By omitting to do so, the learned trial Magistrate has acted contrary to the mandatory provisions of section 145, Criminal Procedure Code. I, therefore, allow this petition, set aside the order under revision and direct that the petitioners be put in possession of the land in dispute.

In view of the decision in Criminal Revision No. 274 of 1973, Criminal Original No. 142-C of 1973 is dismissed. Cr. Misc. No. 1354 of 1973 is also dismissed.