PANIGRAHI, J. -
(1.) BY an order dated 31.3.1953, the Magistrate, First Class, Bargarh, declared the possession of the disputed lands measuring 51.052 acres in favour of the first party (opposite parties herein) in M. C. No. 65/314 of 1952 - a proceeding under Section 145, Criminal Procedure Code The Sessions Judge, Sambalpur, affirmed this order by his judgment dated 30.7.1953, in criminal revision Case No. 6 of 1953. It is against this order that the members of the second party have come up in revision to this Court.
(2.) THE facts leading to the dispute lie within a short compass. Akula, the father of the first party was admittedly the Thikadar - Gaontia, and after his death Kartick the first party, is the Thikadar. The disputed lands are the sir lands of the village enjoyed by the gaontias in lieu of maintenance. The members of the second party claim to be the daughters of one Bhagat who was the cousin of Akula and was the previous gaontia and who, it is said, died issueless over 20 years ago. It has been found by both the Courts below that the petitioners are, in fact, not the daughters of Bhagat. It is contended that they are the daughters of one Jagat belonging to a junior branch. In view of the findings of the Court below and the overwhelming documentary evidence, learned counsel for the petitioners did not reagitate this point before me, and it must be taken as established that the petitioners are not the daughters of Bhagat as alleged by them.
(3.) BUT apart from that, the main contention raised is that the order of the Magistrate violates the provisions Section 145 (4) as the first party had been dispossessed more than two months prior to the passing of the preliminary order. The admited facts are that on 18.6.1952 the members of the second party laid a report with the Police that they had cultivated the disputed fields on Akhayatruthiya day, corresponding to 27.4.1952 and that the members of the first party damaged the seedlings on 18.6.1952.
It appears that on the same day, viz., 18.6.1952, the first party reported that the petitioners went armed with lathis and axes and ploughed the disputed lands and sowed paddy that very morning. On 28.6.1952, the Police sent a report recommending immediate action under Section 145, Criminal Procedure Code and the Magistrate drew up a preliminary order on 2.7.1952. On these facts, it is argued that the dispossession of the first party took place on 27.4.1952, that is, more than two months prior to the date of the preliminary order, and that therefore the Magistrate had no jurisdiction to declare the possession of the first party. It will be noticed that the petitioners themselves alleged that they had sown paddy on 27.4.1952, but the members of the first party did not admit that they had been dispossessed on that date. It may well be that by sowing paddy, the petitioners made a sporadic attempt to take the possession of the lands by force on 27.4.1952. But the first party neither admitted, nor made any complaint about it.
It must therefore be held that what the petitioners did on 27.4.1952 did not amount to dispossession of the first party, and that the first apprehension of a breach of the peace arose only on 18.6.1952 when both parties reported to the Police against each other about a possible clash. It is well settled that a fugitive act of trespass or interference with possession does not amount to dispossession. The dispossession referred to in Section 145, Criminal Procedure Code must be one that amounts to a completed act of forcible driving out of a party in possession.
Learned counsel for the petitioners has referred me to several cases where the first proviso to sub -sec. (4) of Section 145, Criminal Procedure Code has been considered. There is apparently a divergence of opinion as to whether the two months' period fixed in that proviso should be literally interpreted. If the party approaches the Police or the Magistrate complaining of interference with his possession, and if the enquiry lasts for more than two months before the preliminary order is passed by the Magistrate, the question would then arise as to what should be the date of commencement of the two months period prescribed in that proviso. Sub -section (1) of Section 145, Criminal Procedure Code lays down that if a Magistrate is satisfied from the Police report, or other information, that dispute likely to cause a breach of the peace exists, he shall make an order in writing requiring the parties to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Sub -section (4) provides that he shall here the parties, receive all such evidence as may be produced, and, if possible, decide whether any and which of the parties was 'at the date of the order' before mentioned, in such possession of the said subject. The first proviso of this clause reads as follows :
"Provided that if it appears to the Magistrate that any party has, within two months before the date of such order, been forcibly and wrong fully dispossessed, he may treat the parties so dispossessed as if he had been in possession at such date."
If we interpret the words "at the date of the order" occurring in clause (4) too literally, it may often be found that in actual experience neither party would be in possession on that date, for it frequently happens that the Police prevent both parties from going upon the land pending enquiry. It may well be that an order under Section 144, Criminal Procedure Code is passed by a Magistrate prohibiting either party from entering upon the land. It would be unreasonable to so interpret the expression "at the date of the order" literally, that the Magistrate may say that on that date neither party was in possession.
It has therefore been held in several cases that a proceeding under Section 144, Criminal Procedure Code followed by a proceeding under Section 145 cannot be allowed to operate in such a way as to disturb lawful possession and that the point of time with reference to which the possession of either party was to be shown was the date when the proceeding under Section 144 had been started - See - 'Saddique v. Sheikh Mohid', AIR 1930 Patna 556 ; 'Joyantikumar v. Middleton', 27 Cal 785 (B).
This reasoning can only be justified on the principle that an act of Court cannot prejudice a party '(actus curiae neminem gravabit)' - See Broom's Legal Maxims. This maxim is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law. The delay in deciding the dispute is the act of the Court for which neither party should suffer.
The Legislature must have been conscious of the well known maxim - 'nunc protunc' (now for then) when it enacted that the Magistrate should iecide which of the parties was at the date of the order in possession although the order is preceded by a Police report and no such time -limit is laid down for the Police to make their report - I am inclined to adopt much the same line of reasoning in interpreting the first proviso which says that if any party has, within two months next before the date of such order, been forcibly dispossessed, he may treat the party so dispossessed as if he had been in possession at such date.
The language would indicate that the proviso is in the nature of a rule of evidence and vests the discretion on the Magistrate to treat a dispossessed party as if he had been in possession. In other words, a legal fiction is created in favour of the party dispossessed. If I am right in holding that any delay on the part of the Court or of the Police will not be taken into account in determining the possession of the disputed property "at the date of the order" it follows that the period of two months next before the date of such order should also be so construed as to exclude the time occupied by the Court or the Police before the passing of the preliminary order.
As I have already stated above there has been some conflict of views as to whether the expression "two months next before the date of such order" should be literally construed or whether a more liberal interpretation should be adopted. The cases reported in - 'Pitchai Moopan v. Narayanaswamy Moopan', 4 Mad Cri C 168 (C); - 'Arunachala v. Chinna Durai', AIR 1945 Madras 216 ; - 'Emperor v. Baijnath', AIR 1929 Oudh 526 ; - 'Meharban Singh v. Bhola Singh', AIR 1935 All 35 and - 'Emperor v. Parashram', AIR 1931 Nag 38 , take the extreme view that the period of two months from the date of the order would mean two months from the date of the preliminary order and not two months from the date of the complaint.
On the other side of the line are the cases reported in - 'Krishnam Raju v. Chintala Swami Naidu', AIR 1927 Madras 816 (1) (H); - 'Srinivasa Reddy v. Dasaratha Rama Reddy', AIR 1929 Madras 198 where it has been held that an aggrieved party shall not be made to suffer because the Court, for some reason or other, delayed the passing of the preliminary order referred to in sub sections (1) of Section 145, Criminal Procedure Code The latest case of the Madras High Court favouring this view is that of - 'Chunchu Narayana v. Karrapati Kesappa', AIR 1951 Madras 500 .
As has been pointed out in that case, Section 145 contemplates that the Magistrate should pass the preliminary order without any delay, 'after' the receipt of the Police report or the information; and Section 145 (1) does not contemplate any prolonged enquiry, before the making of the preliminary order. If, however, the Magistrate sends it to the Police for enquiry before passing of the preliminary order, he must be deemed to have taken cognisance of the matter and the two months period should be calculated from that date and not from the date when he makes up his mind and draws up the preliminary order.
I am unable to subscribe to the view taken by Ray, C.J., in - 'Janama Bhoi v. Draupadi', AIR 1952 Orissa 26 as laying down good law. To me it appears that to put a too literal construction on the language of the proviso would be to put a premium on dishonest and cantankerous parties who can always see to it that the enquiry is delayed and that the party dispossessed is ultimately deprived of the benefit of the legal fiction created by the proviso. If the party complaining comes to Court more than two months after his dispossession, it is manifest that the legal fiction cannot be invoked in his favour. But if the period of two months expires owing to the time occupied by the enquiry either by the Police or by the Magistrate before the preliminary order is passed, neither the intention nor the language adopted by the Legislature would justify the contrary view taken in some of the reported cases.;