PACHAYAPPA UDAYAN Vs. PONNA GOUNDAN

JUDGEMENT

(1.) This petition was admitted because the learned Magistrate in considering ah application made before him under Section 145, Criminal Procedure Code, did not give very clear findings.

(2.) The question that fell for his consideration was this : who was in possession on the date of his preliminary order, which was the 13 November, 1941, In paragraph 5 of his order, in which he sums up his findings, he mixes up questions of title and possession instead of confining himself to the relevant question above framed. In some sentences he seems to give a definite finding that D. W. 1 was in possession and even seems to express an opinion that he was always in possession except for a very short time. On the other hand, there are other sentences in this paragraph which have given room for the argument that the Magistrate had lost sight of the only point that he had to consider. He said for example, P. W. 1 has not taken delivery of possession of the land from P. Ws. 3 and 4 legally; which sentence suggests that P. W. 1 got into possession though he had no title. Later on he says P. W. is possession of the land for some time by virtue of Ex. A and by the order in M. C. No. 74 of 1941 do not give him full title and right to continue in possession of the land. That sentence is irrelevant to the application, but it suggests that P. W. I got into possession not only because of the order under Section 144, Criminal Procedure Code, in M.C. No. 74 of 1941 but also by virtue of his title deed, the learned Magistrate finding that although he had possession he did not have the full title and right to continue in possession. Reading paragraph 5 as a whole, however, and having reference to paragraph 2 of the judgment, I feel satisfied that the learned Magistrate found that D. W. 1 was in possession except during the time when he was deprived of possession in pursuance of the ex parte order passed under Section 144, Criminal Procedure Code.

(3.) A Magistrate is not bound to order possession to be given to the person who was in possession two months before the passing of the preliminary order; but under the first proviso to Clause (4) of Section 145, Criminal Procedure Code, he may treat the party dispossessed forcibly and wrongfully within two months as having been in possession on the date of the preliminary order. The argument of the learned advocate for the petitioner is that his client got lawfully into possession by virtue of the order under Section 144, Criminal Procedure Code, and that therefore when D. W. 1 again entered into possession after the time fixed in the order under Section 144 expired, he obtained possession wrongfully. The evidence indicates that the order which gave the petitioner temporary possession of the land was obtained ex parte, and that when D.W. 1 applied to the Magistrate to set aside that order, he was told that as by the time the petition came up for hearing the month for which he had passed the order under Section 144 had already expired, it was unnecessary for him to reconsider his earlier order. If a person in possession of property is temporarily dispossessed by an ex parte order of this sort and his application to set aside that order is dismissed only on the ground that the time for which the order was in force had already expired, I should not consider that the re- entry into possession by the person so dispossessed was wrongful dispossession of the person . who obtained temporary possession on account of the ex parte order.