VINOD VOHRA Vs. PURAN BHAGAT NANDA

JUDGEMENT

(1.) THIS reference arises out of proceedings under section 145 Cr. P. C. The disputed property consists of two rooms; one, in the basement, and the other, in the form of a Barasati in the second floor, of a house situated in Purani Mandi, Jammu. The proceedings were initiated on 22 -12 -1976 at the instance of Sh. Puran Bhagat Nanda (hereinafter called the applicant). His case was that he is an employee of the Government. At the relevant time he was posted at Kathua. He had carried his family and was residing there. He had locked the disputed rooms from outside. The rooms contained his personal belongings. On 22 -11 -1976, Mst. Vinod Vohra and Ram Lubhaya Vohra (hereinafter called the non -applicants) without any right or title broke upon the locks, removed all his belongings and occupied the rooms. He was informed of the incident on telephone by S/shri Manohar Lal Kapoor and B. L. Bhatnagar. On 23 - 11 - 1976 he reached and found the rooms occupied by the non - applicants. On seeing him, the non -applicants threatened him with dire consequences if he attempted to get into the rooms. The applicant alleged that there was every likelihood of breach of peace had he entered the rooms in order to regain the possession. The learned Magistrate felt satisfied that a dispute existed as regards the possession of the rooms in question which was fraught with danger of breach of peace. The applicants filed their written statement and denied that the applicant was ever in possession of the disputed rooms. They asserted that the said rooms had continued to be in their actual physical possession since a long time. On evidence the trial Magistrate found that the disputed rooms had devolved upon the applicant under a will from his father and that the said rooms continue to be in his possession through his tenants Shiv Rattan Kumar and Bod Raj till the non -applicants forced their entry into the rooms on 22 -11 -1976 by breaking open the lock while the applicant was away at Kathua. On finding this he declared the applicant to be in possession of the disputed rooms and directed restoration of possession to him and forbade interference until he was evicted in due course of law. The non -applicants applied for revision. The revision was heard by the Additional Sessions Judge, Jammu. He has recommended that the order passed by the trial Magistrate be set aside and that, he should be asked to refer the dispute for adjudication to a civil court of competent jurisdiction under section 146 Cr. P. C. While doing so, he has observed: -

(2.) THE first ground of reference by the Additional Sessions Judge is that in deciding the matter, the trial magistrate has followed the principle of possession following the title. In this he has not correctly appreciated the judgment of the trial court. The controversy before the trial court was whether it was one party or the other which was in actual physical possession of the disputed rooms at the relevant time. Each party had boldly alleged and led evidence to prove that it was in possession to the exclusion of the other. For a proper appreciation of the evidence on the question of possession it naturally became necessary for the trial magistrate to have a peep into the antecedent history of title and possession. That incidentally brought in the will relied upon by the applicant. The trial magistrate found that having regard to the antecedent history of title and possession the evidence regarding possession led by the applicant had merit in it whereas the same could not be held to be true about the evidence led by non -applicants. In the circumstances it cannot be seriously contended that the trial magistrate has decided the question of possession on the principle of possession following the title. The first ground has no merit in it.

(3.) THE next ground of reference by the Additional Sessions Judge is that since the dispossession, however wrongful, was completed before the preliminary order was passed, there was no longer any dispute on the date of the order and consequently section 145 Cr. P. C; did not apply and the entire proceedings including the final order were without jurisdiction. A similar argument was raised in the case of R H. Bhutani Vs. Miss Mani J. Desai and ors (AIR. 1968 S. C: 1444). The Supreme Court repelled the argument observing: This reasoning would mean that if a party takes the law into his hands and deprives forcibly and wrongfully the other party of his possession and completes his act of dispossession, the party so dispossessed cannot have the benefit of section 145. as by the time he files his application and the Magistrate passes his order, the dispossession would be complete and, therefore, there would be no existing dispute likely to cause breach of peace. Such a construction of Section 145, in our view, is not correct for it does not take into consideration the second proviso to sub section (4) which was introduced precisely to meet such cases. The magistrate has first to decide who is in actual possession at the date of his preliminary order. If, however, the party in de -facto possession is found to have obtained possession by forcibly and wrongfully dispossessing the other party within two months next preceding the date of his order the Magistrate can treat the dispossessed party as if he was in possession on such date, restore possession to him and prohibit the dispossessor from interfering with that possession until eviction of that person in due course of law. The proviso is founded on the principle that forcible and wrongful dispossession is not to be recognised under the criminal law. So that it is not possible to say that such an act of dispossession was completed before the date of the order. To say otherwise that if a party who is forcibly and wrongfully dispossessed does not in retaliation take the law into his hands, he should be at disadvantage and cannot have the benefit of section 145. The word dispossessed in the second proviso means to be out of possession, removed from the premises, ousted ejected or excluded. Even where a person has a right to possession but taking the law into his hands makes a forcible entry otherwise than in due course of law, it would be a case of both forcible and wrongful dispossession : (of Edwick v. Hawkers, (1881) 18 Ch D 199 and Jiba V. Chandulal, AlR 1926 Bom 91). Subsection (6) of Section 145 in such a case permits the Magistrate to direct restoration of possession with the legal effect that is valid until eviction in due course of law. In AIR 1926 Bom 91 (Supra) the High Court of Bombay held that it would be unfair to allow the other party the advantages of his forcible and wrongful possession and the fact that time has elapsed since such dispossession and that the dispossessor has since then been in possession or has filed a suit for a declaration of title and injunction restraining disturbance of his possession is no ground for the Magistrate to refuse to pass an order for restoration of possession once he is satisfied that the disposed party was in actual or deemed possession under the second proviso. Similarly, in A N. Shah V. Nageswara Rao. AIR 1947 Mad 133 it was held that merely because there has been no violence after one of the parties had wrongfully and forcibly dispossessed the other it cannot be said that there cannot be breach of peace and that, therefore, proceedings under section 145 should be dropped. It may be that a party may not take the law in his hands in reply to the other party forcibly and wrongfully dispossessing him. That does not mean that he is not to have the benefit of the remedy under Section 145. The second proviso to sub section (4) and sub -section (6) contemplate not a fugitive act of trespass or interference with the possession of the applicant, the dispossession there referred to is one that amounts to a completed act of forcible and wrongful driving out a party from his possession. (of Subarna Sunawati V, Kartika Kudal. AIR (1954) Cut 215 (AIR 1954 Cr. 183), It is thus fairly clear that the fact that dispossession of the appellant was a completed act and the appellant had filed a criminal complaint and the police had taken action thereunder do not mean that the Magistrate could not proceed under section 145 and give directions permissible under sub -section (6)" These observations are equally applicable in the present case. The second ground too has no merit in it.