Decided on November 08,1944

Arunachalam Goundan And Ors. Appellant


Happell, J. - (1.) THIS case arises out of an order made under Section 145 of the Code of Criminal Procedure by the Additional First Class Magistrate of Vellore. In his petition praying that the Magistrate should take action under Section 145, the respondent who may be referred to as the "A party" stated that he had been dispossessed by the "B party"on the 20th July, 1943. The Magistrate, who declared in his final order that the A party was entitled to possession, issued a preliminary order under Section 145(1) of the Criminal Procedure Code on the 19th November, 1943. Under Sub -sections 4 and 6 of Section 145 of the Criminal Procedure Code, the Magistrate is bound to issue an order declaring the party which he finds to have been in possession on the date of the preliminary order to be entitled to remain in possession until evicted in due course of law, provided that if the other party has been wrongfully dispossessed within two months of the preliminary order he may treat that party as in possession and issue the declaration in its favour. In this case, therefore, the B party were in possession when the petitioner filed his petition, namely, on the 6th September, 1943, and the petitioner on his own admission had been out of possession for more than two months before the preliminary order was made on the 19th November, 1943. It would appear, therefore, that the Magistrate in this case had no alternative but to make an order declaring that the B party was entitled to possession until evicted in due course of law.
(2.) AN argument has been pressed on me that the first proviso to Clause 4, Section 145 need not be construed strictly, and that the period of two months may in proper circumstances be extended in order that substantial justice shall be done. In support of this contention I have been referred to a decision of Devadoss, J., reported in Srinivasa Reddi v. Dasaratha Rama Reddi, (1928) 56 M.L.J. 33 :, I.L.R. 53 Mad. 166. In so far as that decision tends to support the contention advanced for the petitioner, i am unable to agree with it, and the learned Public Prosecutor has referred me to a decision to the contrary effect of Jackson, J., reported in Pichai Moopan v. Narayanaswami Moopan, (1931) Mad. Cr. Cases 168. This decision, in my opinion, gives effect to the plain words of the statute, namely, that the 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. In the present case the "B" party had been in possession for four months when the preliminary order was passed and the Magistrate was not empowered to treat the "A" party as if they had been in possession at that date. The order of the learned Magistrate must therefore be set aside and a declaration will issue that the B party, namely, the petitioners in this criminal revision petition are entitled to possession until evicted in due course of law.;

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