Fatima Sultana Begum vs Rang Rao

Syed Qamar Hasan, J.—This is a revision petition on behalf of Fatima Sultan arising out of a proceeding u/s 148, Hyderabad Criminal P. C., and the only point involved is whether the Magistrate had erred in computing the period of two months as prescribed by Sub-section (4), Section 148 from the alleged date of dispute and not from the date of the preliminary order,

The facts shortly stated are that on 23rd Isfandar 1352 P., Rang Rao, the counter-petitioner filed an application in which he alleged that Survey No. 30 situate in Yousufguda belonged to one Lachraa Rao Jagirdar and was under his management and supervision and that Fatima Sultan was attempting to deprive him of its possession forcibly which might result in breach of the public peace.

The learned Magistrate sent the application to the police for enquiry and report. The police report was received on 15th Ardibihisht 1352 P., informing the Magistrate that there was no danger to the public peace and that the petitioner was found to be in possession of the disputed plot for more than two months prior to the counter-petitioner''s application to the Magistrate.

On 20th Ardibihisht 1352 P., the counter-petitioner sought permission to lead evidence to show that a dispute likely to cause a breach of the peace existed. The Magistrate acceded to this request. The proof for some reason or other could not be recorded till 11th Azur 1353 F. On that date, a preliminary order was drawn up and the parties were asked to state their respective cases as provided in Sub-section (1) of Section 148. I need not go into the various stages of this case. It would be sufficient to state that the statement of the last witness was recorded on 31-54952 and after several adjournments, the learned Magistrate on 29-11-1952 found that Rang Rao had been dispossessed and was entitled to possession of the land.

On behalf of the petitioner, it was contended before the learned Magistrate and the same argument has been repeated before me that as the petitioner''s possession was 8 months and 18 days old on the date the preliminary order was passed, relief could not be granted to the counter-petitioner under Sub-section (4) of Section 148, Criminal P. C. The learned Magistrate overruled this objection on the authority of - (Chinchilada) Kirishnam Raju Vs. Chintala Swami Naidu and Others, (A); - R. Srinivasa Reddy Vs. M. Dasaratharama Reddy, ; - Gobordhan Das Vs. Suresh Chandra Mukherji and Others, and - Syed Nurullah v. Muhammad Umar Khan 19 Deccan LR 154 CD).

It is contended by the learned Advocate for the petitioner that these authorities do not lay down good law and reference in this connection is made to - Arunachala Goundan v. Chinnadurai AIR 1945 Mad 216; - Tolam Kalita v. Bhuban Chandra AIR 1951 Assam 161 (F); -. Janama Bhoi and Another Vs. Draupadi Bhoiani, and - Hunmunta Singh v. Bhol Bayanna 34 Deccan LR 263 (H). The learned Advocate for the counter-petitioner in addition to the authorities cited by him before the learned Magistrate has relied on - Mir Musaffar Ali Khan v. Jehangirji 5 Deccaa LR 268 (I); - Yadu Rao v. Sahib Rao 15 Deccan LR 51 (J); - Kotay Sayanna v. Bunputlod Bhuma 15 Deccan LR 65 (K).

Before considering these authorities, it would be relevant to note at the outset the provisions of law bearing on the controversy between the parties. Sub-section (4) of Section 148, Hyderabad Criminal P. C. before its amendment by Act 8 of 1354 P., reads as follows :

If on the date fixed, it appears that there was no dispute in fact, the proceeding shall be dropped otherwise the Nazim Foujdari shall investigate which party was in possession on the date of the order or within two months of it and if he had been forcibly or wrongfully dispossessed he would restore possession to the party dispossessed.

The question therefore is whether the period of two months from the date of the order can be made to relate back to the date of the dispute.

(Chinchilada) Kirishnam Raju Vs. Chintala Swami Naidu and Others, '', Wallace J. held that a party taking possession by force need not be retained in possession u/s 145, Criminal P. C., if, owing to delay, after the dispossessed party has asked the court to take action, on the part of the court taking action, over two months have elapsed before the court makes up its mind to issue a preliminary order. Following this view, Devadoss J. held in-''AIR 1929 Mad 198 (B)'' that in proceedings u/s 145, the party who complains of forcible dispossession should not be deprived of the benefit of the section by reason, of the delay caused by the court in passing the preliminary order,

Gobordhan Das Vs. Suresh Chandra Mukherji and Others, Dhavle J. held the view that where the proceeding u/s 144 was intended to be no more than a forerunner of a proceeding u/s 145, the two months to be considered under the first proviso to Sub-section (4) should in such cases be counted backwards from the date of the order u/s 144. Otherwise, manifest injustice might result to a party forcibly and wrongfully dispossessed in this period but more than two months before the date when the proceeding u/s 145 is actually drawn up.

The view taken in - ''5 Deccan LR 268 accords with the view taken in Madras and Patna cases. In - ''15 Deccan LR 65 (K)'' and - ''19 Deccan LR 154 (D)'' it has been laid down as a general proposition that the crucial date for deciding the question will be the date of dispute.

In so far as the last two rulings are concerned, it may be stated that they do not lay down good law, and the correct view is that which is laid down in - Hunmanta Singh v. Bhoi Sayanna 34 Detean LR 263 (L). The Madras and Patna cases relied upon by the learned Advocate for the counter-petitioner proceed on the principle that no party should be harmed by the act of the court, and that if that interpretation is not adopted, it would cause hardship to the aggrieved party. But I am of the opinion that if the words of a Statute are plain and can bear only one meaning, the court should not base its decision on contraction solely on results. In other words, the interpretation should not, where the language is clear, be influenced by extraneous consideration, such as hardship or expediency.

In this view, I am reinforced by the judgment Of Happell J. in - AIR 1945 Mad 216. It was decided in that case that proviso 1 to Sub-section (4) of Section 145 should be construed strictly and the period of two months prescribed by the proviso under no circumstances can be extended. Hence person dispossessed can be treated as in possession on the date of the preliminary order only if he had been dispossessed within two months of that date. This view has been approved and followed by a Division Bench of the Assam High Court in - ''AIR 1951 Ass 161'', wherein it was held that on a strict construction of the section, no order can be passed in favour of the party, who was dispossessed even though forcibly and wrongfully but more than two months before the date of the preliminary order. If delay is caused by the act of the court, even then the express provision contained in Clause (4) cannot be disregarded. The inherent powers of the court to do justice cannot be exercised in disregard of the express provision contained in the Code.

In the case of - Janama Bhoi and Another Vs. Draupadi Bhoiani, , Bay O. J. observed that proviso (2) to Section 145, Criminal p. C. is discretionary and the discretion is limited by the express words namely that it shall not be exercised in a case where the dispossession forcibly and wrongfully effected has lasted for more than two months next before the preliminary order. The Legislature has fixed the maximum period, within which the party wrongfully dispossessed can get the benefit of the section at two months, & a Magistrate would be acting clearly beyond his jurisdiction if he restores possession to one who has been, forcibly dispossessed more than to months prior to the preliminary order merely because there was a great delay in making the inquiry and drawing the preliminary order.

It may be observed that in all these cases, the complaining party had come with the allegation of forcible dispossession. In the present case, the allegation on the part of the counter-petitioner was that he was in possession of the disputed plot on the date of the application but the witnesses including the counter-petitioner deposed that dispossession took place a day before the application was made to the court. Thus, the proof itself was at variance with the case made out in the application initiating the present proceeding. Be that as it may, the counter-petitioner being deprived of the possession more than 8 months and 18 days prior to the drawing up of "the preliminary order, he was not entitled to the benefit of the section.

For the reasons stated above, I allow the revision and setting aside the order of the Magistrate, direct that the petitioner be reinstated if the possession of the disputed plot had already been delivered to the counter-petitioner or to any person on his behalf.