BAI JIBA Vs. CHANDULAL AMBALAL

JUDGEMENT

(1.) This case raises a dispute under Section 145 of the Criminal Procedure Code. It is eminently a beneficial section parsed with the express object of preserving the peace. But in many cases it is apt to result in the parties treating it as a sort of preliminary suit with reference to the merits of their respective claims to certain immovcable property, though both parties know that those disputes cannot finally be determined except by a civil Court. I feel, therefore, that when one yes a dispute of that nature, as we have in fact here, there is an unfortunate waste of money by the litigants, and to some degree a waste of public time, in considering detailed facts or difficult points of law, because after all the only order that can be passed by the Court is a temporary order to preserve the peace, while the civil rights of the parties to the property in dispute are being settled.

(2.) In the present case it appears that one Shivlal died on January 9, 1922, leaving a widow Jiba and a brother Bapalal. The widow Jiba alleges that she was in sole possession of the property after the death of her husband, and remained no with the consent of Bapalal, who was the heir to the property subject to the widow's right of maintenance. It is further alleged that the widow was the manager of the property, She brought these proceedings under Section 145, Criminal Procedure Code, against one Chandulal, alleging that Chandulal had wrongfully taken possession of the property and dispossessed her (Jiba) of that property. The learned Magistrate does not find definitely whether the act of dispossession was on November 21, 1923, or on November 22, 1923. He says if it was on November 21, then no force was used. So it was not a forcible dispossession within the meaning of the proviso to Sub-section (4) of Section 145. But if it was on November 22, then it was a forcible dispossession.

(3.) The ground on which the learned Magistrate came to his decision to dismiss the application was that whether the date was the 21 or the 22nd, and whether it was a forcible entry or whether it was not, it was not a wrongful dispossession within the meaning of the above proviso, because Chandulal was then rightfully entitled to possession of the property under an agreement for sale which Bapalal the heir had entered into on September 12, 1923, and under a further document of November 21 by which Bapalal had purported to give him the possession of the property.