Decided on May 07,1952



Imam, J - (1.) THE reference and the application in revision have been heard together as they arise out of the same 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', A. I. R. 1942 Pat 489 (A). THE revisional application arises out of the order of the Magistrate in the proceedings under Section 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 under Section 148 of the Code.
(2.) 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 under Section 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 whe- ther 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 titie 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. 84. 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 under Section 144 of the Code was passed on 27-6-1950, and the preliminary order instituting proceedings under Section 145 (1) of the Code is dated 2-8-1350. 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 under Section 145 (1) of the Code was dated 2-3-1950. The dispossession, therefore, was beyond two months of the date of the orders under Section 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 under Section 144 of ths Code had been passed, because that order was a fore-runner of the proceedings under Section 145 of the Code. Reference was also made to a decision of the Madras High Court in the case of -- 'Srinivasa Reddy v. Dasaratha Rama Reddy', AIR 1929 Mad 198 (B) as well as certain observations of their Lordships of the Calcutta High Court in the case of -- 'Joyanti Kumar v. J. B. Middleton', 27 Cal 735 (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 v. Bhola Singh', A. I. R. 1935 All 35 (D); -- 'Emperor v. Farashram', AIR 1931 Nag 38 (E) and certain observations in the case of -- 'Ghulam Husain v. Sajawal Shah', A. I. R. 1S33 Lah 143 (F). It is the first principle which a Court has to observe in construing an Act, to give to the words in the 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 oE 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 under Section 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 he that two months must be calculated from the date of the order passed under Section 145 (1) of the Code and no other date.
(3.) HAVING regard to the view which I take, I would discharge the reference made by the Additional Sessions Judge of Patna.;

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