Lakshami Narain Singh and Others vs Jugeshwar Jha and Others

Imam, J.—The reference and the application in revision have been heard together as they arise out of the game matter, in the application in

revision, the first party are the applicants and in the reference, the matter has been placed before this Court by the 4th Additional Sessions Judge of

Patna, recommending that the order of the Magistrate declaring possession in favour of the second party should be set aside, because in his

opinion the case would be covered by a decision of this Court in the case of - ''Gobordhan Das v. Suresh Chandra'' AIR 1942 Pat 48 (A). The

revisional application arises out of the order of the Magistrate in the proceedings u/s 145, Criminal P. C. where he was of the opinion that he could

not decide possession of either party with reference to all the plots except plot no. 23, and, consequently, attached those plots u/s 146 of the

Code.

I shall deal with the application in revision first. A mere perusal of the order of the magistrate indicates that there has been no real discussion of

the evidence on the question of possession by him. There were numerous plots involved in the dispute and the subject matter of the proceedings

u/s 145 of the Code, and in support of possession of either party a number of witnesses had been examined and a large number of documents

exhibited. The magistrate no doubt sets out as to who are the witnesses in favour of a particular party but does not discuss their evidence with any

clarity. Consequently, a Court of revision is not in a position to know whether really the evidence was such that no decision could be arrived at on

the question of possession in favour of either party. It has been well settled that a magistrate should resort to the provisions of Section 146 of the

Code only when he finds the evidence on the question of possession of both the parties so equally balanced that he cannot possibly make up his

mind on such evidence as to who was in possession. I do not gather from the judgment of the magistrate any indication as to whether the evidence

on the question of possession was really so evenly balanced between the parties as to make it impossible for him to decide as to who was in

possession. Indeed, the extent of confusion in his mind is fully demonstrated with reference to the land in dispute regarding khata no. 34. In his

judgment he stated that the second party had filed a title suit for this land and this fact went against the case of possession of the second party over

it. If that was his conclusion, obviously, he should have found members of the first party to be in possession of the lands covered by khata no. 64.

It seems to me that the magistrate has made no real effort to analyse the evidence between the parties and determine the question of possession

one way or the other. His order attaching the land in dispute other than plot no. 23 of khata no. 73 is, therefore, set aside and the case is remanded

to him for rehearing and disposal according to law.

Coming now to the reference made by the Additional Sessions Judge, certain facts have to be stated in order to understand the question

involved in the reference. There was a police report concerning the dispute between the parties dated 13-6-1950 and an order u/s 144 of the

Code was passed on 27-6-1950, and the preliminary order instituting proceedings u/s 145 CD of the Code is dated 2-8-1950. In the course of

the trial, there was an admission by the witnesses of the first party that they had been dispossessed with reference to plot no. 23 in the middle of

Jeth, 1357 Fs. which would correspond to about 17-5-1950. It is quite obvious, therefore, that the first party on their own admission had been

dispossessed of plot no. 23 somewhere about 17-5-1950, and the order u/s 145 (1) of the Code was dated 2-8-1950. The dispossession,

therefore, was beyond two months of the date of the orders u/s 145 (1) of the Code. It was, however, argued and reliance was placed upon a

decision of this Court already referred to, that the period of two months should be counted from 27-6-1950 when the order u/s 144 of the Code

had been passed, because that order was a fore-runner of the proceedings u/s 145 of the Code. Reference was also made to a decision of the

Madras High Court in the case of - R. Srinivasa Reddy Vs. M. Dasaratharama Reddy, as well as certain observations of their Lordships of the

Calcutta High Court in the case of - ''Joyanti Kumar v. J. B. Middleton'' 27 Gal 785 (C).

On the other hand, on behalf of the second party, it was contended that the words of the first proviso to Section 145 (4) of the Code are clear

enough and must be given effect to. However, reliance was placed upon the cases of - Meharban Singh Vs. Bhola Singh and Others, ; - AIR 1931

38 (Nagpur) and certain observations in the case of - ''Ghulam Husain v. Sajawal Shah'' AIR 1933 Lah. 143 (P), It is the first principle which a

Court has to observe in construing an Act, to give to the words in tile Act their plain and ordinary meaning, where there is no ambiguity in the

words used in the Act. The first proviso to Section 145 (4) reads as follows:

Provided that if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully

dispossessed, he may treat the party so dispossessed as if he had been in possession at such date.

The words ""the date of such order"" Obviously refer to the order passed under Clause (1) of Section 145 of the Code, i. e., when the magistrate

makes an order in writing, stating the grounds of his being satisfied that there was the likelihood of a breach of the peace, and this required the

parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by the magistrate, and to put in written

statements of their respective claims as respects the fact of actual possession of the subject of dispute. The order passed u/s 145 (1) in this case

was on 2-8-1950. The two months, therefore, must be calculated from that date. The words in the proviso are clear enough and there is no

ambiguity about them. Consequently, the Court has to give full effect to the words of the statute. There is not even room for interpretation, and with

great respect to the observations of Devadoss J. of the Madras High Court, there is no question of literal interpretation. Reliance, however, was

placed upon the observations of Dhavle J. in the ''Patna case (A)''. While I think, from the point of view of hardship and perhaps even a sense of

equity, sentiment should lead a Court to favour a party who has been forcibly and wrongfully dispossessed, I think it would be beyond the

functions of a Court to be misled by such sentiments and give a construction to the provisions of a statute which entirely alters it and gives to it a

meaning which is contrary to the plain words of the statute. I think the view taken in the Allahabad High Court and the Nagpur High Court is the

correct view, and as Rachhpal Singh J. has observed, the Court cannot be affected by the hardships of a case. With great respect to the learned

Judges of Madras and this Court who held otherwise, in my opinion, the plain words of the proviso compel the decision to be that two months

must be calculated from the date of the order passed u/s 145 (1) of the Code and no other date,

Having regard to the view which I take, I would discharge the reference made by the Additional Sessions Judge of Patna.

Ahmad, J.

I agree.