TAPAN KR. MANI Vs. ASHUTOSH MAHATO & ORS.

JUDGEMENT

(1.) -The plaintiff of O.C. Suit No. 81 of 1985 renumbered as O.C. No. 126 of 1989, in this application under Sec. 115 of the Code of Civil Procedure has challenged the order dated 28th Feb., 1990 passed by the learned Court of Assistant District Judge, Balurghat in the said suit. A suit arose out of an application under Sec. 6 of the Specific Relief Act. From the impugned order it appears that the date of dispossession as stated in the application under Sec. 6 of the Specific Relief Act namely, 15th March, 1985 was disbelieved by the learned Court below only on the ground that since for violation of the order in a proceeding under Sec. 144 of the Code Criminal Procedure by action of the defendant on 28th Dec., 1984, the defendants had suffered penal consequence in terms of Sec. 188 of Indian Penal Code, a prudent man would not believe that the defendants on 28th Dec., 1984 knowing very well penal consequence of violation of prohibitory order passed in proceeding under Sec. 144 of the Code Criminal Procedure entered the premises partially and left the premises and thereafter permanently dispossessed plaintiff from the suit land on 15th March 1985. Simply on this reasoning and without analysing and/or scanning the evidence and material on records the learned Court below has passed the impugned order. From the documents as annexed in the revisional application and the findings of the proceeding under Sec. 144 of the Code Criminal Procedure as relied upon by the learned Court below it appears that on the basis of the report of Junior Land Reforms Officer the learned Sub-Divisional Magistrate, Balurghat, West Dinajpur in a proceeding under Sec. 144 of the Code Criminal Procedure passed an order dated 30th Nov., 1984 in case No. 261/M.R./84 restraining the defendants of the suit who were the opposite parties therein from entering into the disputed land as was scheduled in the application. The present petitioner filed an application for prosecution under Sec. 188 of the Indian Penal Code on the ground of alleged violation of the said order dated 30th Nov., 1984 passed by the learned Sub-Divisional Magistrate, Balurghat before the learned Court of Sub- Divisional Judicial Magistrate, Balurghat wherein it was registered as Case No. 202-C/85. In that criminal proceeding under Sec. 188 of the Indian Penal Code the plaintiff of the suit as complainant therein had placed his witnesses and they were allowed to cross-examine by the defendants who were accused therein and ultimately the Court held that the accused thereto that is the present defendants violated the order dated 30th Nov., 1984 passed by the learned Sub- Divisional Magistrate, Balurghat in a proceeding under Sec. 144 of the Code Criminal Procedure and passed sentence therein. This judgment dated 18th Aug., 1989 passed by the Sub-Divisional Judicial Magistrate, West Dinajpur, Balurghat in Case No. 202-C/85 was challenged in Criminal Revisional No. 33 of 1989 by the defendants of the suit before the Court of learned Sessions Judge, West Dinajpur, Balurghat unsuccessfully. In the complaint as filed before the learned Court of Sub-Divisional Judicial Magistrate for taking cognizance of the offence under Sec. 188 of the Indian Penal Code it was contended that the present defendants in this suit entered into the said premises on 28th Dec., 1984 and damaged the channel used for the purpose of irrigation of water from one field to other and as a resultant effect such irrigation work was stopped. From the petitioner of complaint as filed before the learned Sub-Divisional Judicial Magistrate Balurghat on charge of commission of offence under Sec. 188 of the Indian Penal Code, It is clear that an incident dated 28th Dec., 1984 was narrated as would have considered as violation of order in the said proceeding under Sec. 144 of the Code Criminal Procedure and the defendants suffered the punishment in the said criminal proceeding and the same was confirmed even by the Revisional Court. In the application under Sec. 6 of the Specific Relief Act plaintiff narrated those facts of criminal proceeding and proceeding under Sec. 144 of the Criminal Procedure Code. The plaintiff thereto that is the present petitioner placed a case for total dispossession of the suit land with effect from 15th March, 1985 and placed witnesses in support of such case of dispossession from the suit property to establish the fact of dispossession within six months from the date of filing of the application under Sec. 6 of the Specific Relief Act. But the learned Court below has considered the date of dispossession as 28th Dec., 1984 which was the subject matter of the criminal proceeding under Sec. 188 of the Indian Penal Code for violation of the order passed in a proceeding under Sec. 144 of the Code Criminal Procedure only on the sole ground as already mentioned in earlier paragraphs. Now, in this Court hence ,the consideration is whether the reason as assigned by the learned Court below is a reason based on factual matrix of this case as would debar this Court from interfering with the matter exercising jurisdiction under Sec. 115 of the Code of Civil Procedure or the finding and the reasoning is such type of reasoning which is not based on evidence and/or material on records, but out of surmise and conjecture. On scrutiny of the impugned order it appears that solely reference of a proceeding of criminal case the Court disbelieved this contention and did not analyse other material and/or evidence on records to justify the issue as framed about the date of dispossession. The Court has observed that a prudent man would not take the risk of punishment on violating the order of a proceeding under Sec. 144 of the Code Criminal Procedure by merely trespassing into the land and without dispossession-the plaintiff therefrom. There is no evidence to arrive in such a conclusion and there is no discussion of the evidence to this effect by the Court below. Now, in considering this matter the statutory provision is very relevant, which is being looked into.

(2.) Sec. 6 of the Specific Relief Act reads as follows :

(3.) What will be the date of dispossession has been considered judicially by the different Courts and now it has been settled that there must be total dispossession from the actual physical possession of the land and mere trespassing into the land in one occasion would not be suffice to attract the provision of Sec. 6 of the Specific Relief Act. A mere isolated act of trespass over the property is not coming within the preview of definition of dis-possession in terms of Sec. 6 of the Specific Relief Act. The word dispossession implies actual ouster and the essence of such ouster is that the person ousting is in actual possession. Hence, on simple analyse of the meaning of the word dispossession as appearing in Sec. 6 of the Specific Relief Act it is clear that mere trespassing into the land in one occasion would not satisfy the test of dispossession. For applicability of Sec. 6 of the Specific Relief Act dispossession must be a complete and total ouster. In the instant case, it appears from the record on the aforesaid basis that in criminal proceeding under Sec. 188 of the Indian Penal Code, which was alleged in the complaint was not the total ouster or dispossession from the suit land but the incident of trespassing by the defendants into the suit land on a particular date as was 28th Dec., 1984 and thereby causing damage to the irrigation channel and the concerned 'Ali'. Hence, such factum of trespassing into the land on 28th Dec., 1984, which was the subject matter of the criminal proceeding cannot be said by any stretch of imagination that the same has fulfilled the ingredient of dispossession in terms of Sec. 6 of the Specific Relief Act. In view of such state of affairs, the learned Court below accordingly, in my view committed a gross illegality by considering the incident of 28th Dec., 1984 as a date of dispossession of plaintiff from the suit land. On 28th Dec., 1984 the defendants trespassed into the land but that surely would not be deemed as dispossessing the plaintiff from the suit land in terms of Sec. 6 of the Specific Relief Act. The learned Court below accordingly failed to consider the legal aspect of the matter in its proper perspective and thereby came to an erroneous finding and that too on the question of common parlance by raising the point about believe and disbelieve and without analysing and scanning the materials and evidence on record. In that view of the matter, the impugned decision of the learned Court below is vitiated with illegality for not considering the legal aspect in the matter. Hence, the impugned decision cannot stand and accordingly is set aside and quashed. The learned Court below is hereby directed to pass a proper judgment only on the basis of the evidence and materials on record in this suit namely, the deposition of the witnesses concerned and thereby to pass a judgment on the basis of such with proper reasoning within two months from the date of communication of this order upon allowing the parties to advance their arguments on the basis of the evidence on record with proper intimation of such date of hearing to the learned Advocates of the Court below.