KEWALDAS Vs. PHUSA

JUDGEMENT

(1.) THIS is a revision by Kewaldas and arises out of a proceeding under sec. 145 Cr. P. C.

(2.) KEWALDAS was the applicant in the trial court. He is a Mahant of the Vishnoi community and the opposite-parties are also Vishnois. The dis-pute relates to a certain house situate in village Kolayat. On the 23rd Feb. , 1953. KEWALDAS made an application in the court of the Sub-Divisional Magis-trate, Bikaner alleging that he was in possession of the disputed bouse as owner but the opposite parties were bent upon forcibly dispossessing him of it and that there was a likelihood of a breach of the peace. KEWALDAS further prayed that the property be attached forthwith and that if the Magistrate came to the conclusion that he had already ben dispossessed, possession be restored to him under sec. 145 Cr. P. C. The Magistrate recorded the statement of the petitioner on the same day and sent the application to the police for immediate inquiry and report. The police reported on the 7th March, 1953, that the petitioner KEWALDAS was formerly in possession of the disputed p?operty but that lately he had been thrown out of possession and that there was a danger of a breach of the peace. This report was placed before the Magistrate on the 14th March, 1953. All that he said on that day was that the papers be put up to him for further action on the 30th March, 1953. ¼oklrs dk;zokgh vkbank rkjh[k 30. 3. 53 dks is'k gks½ Thereafter the papers were put up before the Magistrate a number of hearings, viz. , 31st March, 1953. 2nd April, 1953, 3rd April, 1953. 10th April, 1953, 11th May, 1953, 17th June, 1953, 18th June, 1953, 22nd June, 1953, 2nd July, 1953 and 13th July. 1953, but nothing was done, as, shockingly enough, the Magistrate had no time to look into the papers. The next relevant date is the 27th July, 1953. On that day two of the opposite parties were present through pleader and the remaining opposite parties were ordered to be summoned, and, further, the parties who had entered appearance through pleader were directed to put in their written statements. Thereafter evidence was produced by both parties, and eventually the case was posted for arguments to the 25th January, 1955. The magistrate by his order passed on that date held that no preliminary order had been passed in this case and that as the applicant had been dispossessed of the disputed house before he filed his application, and, therefore, the Magistrate had no jurisdiction to restore possession to the applicant and further that if a preliminary order were to be passed at that date, it would clearly be beyond two months of the date of dispossession. On this view the Magistrate dismissed the application. The petitioner went in revision to the learned District and Sessions Judge, Bikaner, who affirmed the order of the trial Magistrate. The present revision has been filed against that order.

(3.) FIFTHLY and lastly I wish to invite pointed attention to this that proceedings under sec. 145 are not intended to and cannot be a substitute for a suit or proceeding based on title or even a suit under sec 9 of the Specific Relief Act, A person who is dispossessed and who for some unfortunate reasons cannot avail himself of the benefit of the proviso to sec. 145 (4) due to the rigour of the limitations surrounding the application thereof will still have his remedies open in the competent civil court, and to these remedies he can and should resort wherever he has a genuine case. It seems to me highly questionable whether in such circumstances he can still insist that even where the conditions laid down in this sub-section are not fulfilled, he should still be allowed his remedy under sec. 145 by straining the provisions of that section in his favour on certain considerations of hardship and inconvenience to him to which he becomes subject owing to certain reasons over which he has no control.