JOGENDRA CHANDRA DAS Vs. BIRENDRA LAL DAS CHOWDHURY

JUDGEMENT

(1.) This rule has been obtained by a defendant, (defendant 3) in a suit instituted under Section 9, Specific Relief Act. The points for consideration are (1) Whether the plaintiffs have at all been dispossessed, and (2) if dispossessed whether the dispossession was otherwise than in due course of law. The subject-matter of the suit is a narrow and long strip of land. It was with other lands, the subject-matter of a suit for partition between the plaintiffs and defendant 1 and others. Defendant 3 was not made a party in the partition suit. The partition suit ended in a decree some time in the year 1931. The plot in suit was given to the plaintiffs. On 9 April 1932 the plaintiffs took possession in execution of the decree for partition.

(2.) The defendants started proceedings under Section 147, Criminal P.C., on 3 February 1932, their case being that they had a right of way over the lands in suit and the plaintiffs were attempting to obstruct the pathway. At the date when this proceeding was started there were no obstructions but during the pendency of the proceedings the plaintiffs fenced the lands. This was on 9 April 1932. The proceedings under Section 147, Criminal P.C., terminated in favour of the defendants. The order was in terms of Section 147(2), that is, the plaintiffs were prohibited from interfering with exercise of the right of the defendants to use the land as a pathway. No mandatory order for removal of the fence was passed, as it could not be passed under that section: Hari Mati Dassi V/s. Hari Dassi Dassi, 1925 Cal 991 and Tarini Mohan De V/s. Dwarka Nath Banikya, 1934 Cal 556. On 7 December 1932 the defendants removed the fencing and began to exercise their right of way. On 9 January 1933 the suit under Section 9, Specific Relief Act, was filed.

(3.) Dr. Mukherjee, who appears for the opposite parties, seeks to support the order by stating that any substantial interference with enjoyment of immovable property amounts to dispossession within the meaning of Section 9, Specific Relief Act and when the defendants took the law in their own hands and demolished the fencing the dispossession is one "otherwise than in due course of law." He contends that the words otherwise than in due course of law" are not synonymous with the word "illegally" and there he is right. The phrase means: "In the regular, normal process and effect of the law operating on a matter which has been laid before a Court, civil or criminal, for adjudication.