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Smt. Subarna Sunami And Others v. Kartika Kudei And Others Opposite Party.

Orissa High Court

Mar 9, 1954

Judgment

Subsequent
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Factual and Procedural Background

By an order dated 31-3-1953 the Magistrate, First Class, Bargarh, declared possession of disputed lands (51.052 acres) in favour of the first party in M.C. No. 65/314 of 1952, a proceeding under Section 145 of the Criminal Procedure Code (Cr PC). The Sessions Judge, Sambalpur, affirmed that order by judgment dated 30-7-1953 in criminal revision Case No. 6 of 1953. Members of the second party (petitioners) moved in revision to this Court against that order.

The substantive dispute concerned "sir" lands enjoyed by gaontias in lieu of maintenance. Akula (deceased) was the earlier Thikadar–Gaontia and Kartick (first party) succeeded as Thikadar. The second party claimed to be daughters of Bhagat (a cousin and previous gaontia who allegedly died issueless more than 20 years earlier). Both Courts below found the petitioners were not Bhagat's daughters; it was contended they belonged to a junior branch (daughters of Jagat). The petitioners did not re-agitate parentage before this Court and it was treated as established that they were not Bhagat's daughters.

The timeline of contested incidents was: the petitioners admitted they had sown paddy on 27-4-1952 (Akhayatruthiya day). The members of the first party alleged that the petitioners damaged seedlings on 18-6-1952; both parties reported to the Police on 18-6-1952. The Police recommended immediate action under S.145 on 28-6-1952 and the Magistrate drew up a preliminary order on 2-7-1952. The petitioners challenged the Magistrate's order partly on the ground that dispossession of the first party occurred more than two months before the preliminary order and therefore the Magistrate lacked jurisdiction under the first proviso to S.145(4).

Legal Issues Presented

Whether the acts of the petitioners on 27-4-1952 (sowing paddy) amounted to dispossession of the first party under Section 145 of the Cr PC, or whether such acts were merely a fugitive trespass not amounting to completed dispossession.
Whether the Magistrate's exercise of jurisdiction under Section 145(4) was barred because, on a literal reading, the dispossession occurred more than two months before the date of the preliminary order.
How the two-month period in the first proviso to sub-section (4) of Section 145 should be computed — whether it should be measured strictly from the date of the preliminary order or whether time occupied by Police or the Court before the preliminary order should be excluded.

Arguments of the Parties

Petitioners' Arguments

The petitioners contended that the first party had been dispossessed on 27-4-1952 (the day they alleged they cultivated/sowed paddy), which was more than two months before the Magistrate's preliminary order, and therefore the Magistrate could not lawfully treat the first party as being in possession under the first proviso to S.145(4).
They relied on authorities that, according to them, supported a literal reading of the two-month period measured from the date of the preliminary order.

First Party / Respondent Arguments (as found by the Court)

The first party did not admit dispossession on 27-4-1952 and did not make any complaint about that date; their first apprehension of a breach of the peace arose only on 18-6-1952 when both parties reported to Police.
It was contended (and the courts below found) that the petitioners' acts on 27-4/27-4-1952 were sporadic attempts or trespasses and did not amount to a completed forcible driving out constituting dispossession under S.145.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Saddique v. Sheikh Mohid, AIR 1930 Pat 556	Held that a proceeding under S.144 followed by S.145 should not disturb lawful possession; the relevant point of time for possession is when the S.144 proceeding started.	The Court cited this case to support the proposition that acts of the Court (or processes started earlier) should not prejudice a party and that the point of reference for possession may be the initiation of earlier proceedings.
Joyantikumar v. Middleton, 27 Cal 785	Same principle as Saddique — that S.144 followed by S.145 cannot be interpreted to disturb lawful possession and the relevant date may be when S.144 was started.	Used alongside Saddique to justify a non-literal approach to the date for determining possession under S.145.
Pitchai Moopan v. Narayanaswamy Moopan, 4 Mad Cri C 168	Represents the view that the two months' period should be literally taken as two months from the date of the preliminary order (extreme literal construction).	Cited as one of several decisions adopting the literal construction which the Court considered to be the "extreme view" and declined to follow.
Arunachala v. Chinna Durai, AIR 1945 Mad 216	Another authority taking the literal view that the two months must be counted from the date of the preliminary order.	Identified as one of the cases adopting the literal approach; the Court contrasted these authorities with cases adopting a more liberal interpretation.
Emperor v. Baijnath, AIR 1929 Oudh 526	Example of the extreme literal view regarding computation of the two months.	Placed among the decisions which require strict computation from the date of the preliminary order; the Court declined that approach here.
Meharban Singh v. Bhola Singh, AIR 1935 All 35	Another decision taking the literal-from-preliminary-order approach to the two-month proviso.	Noted as part of the group of cases with a literal interpretation which the Court did not follow.
Emperor v. Parashram, AIR 1931 Nag 38	Also cited as adopting the literal interpretation (two months from preliminary order).	Grouped with the other literal-interpretation cases and distinguished by the Court.
Krishnam Raju v. Chintala Swami Naidu, AIR 1927 Mad 816	Holds that an aggrieved party should not suffer because the Court delayed and that the two months should be computed excluding such delay.	Cited by the Court as part of the line of authorities supporting a liberal construction that excludes delay caused by Court/Police from the two-month period.
Srinivasa Reddy v. Dasaratha Rama Reddy, AIR 1929 Mad 198	Supports the view that delay by the Court should not defeat the protection of the proviso; two months to be computed so as not to penalize the aggrieved party for Court delay.	Relied on as persuasive authority favouring the Court's interpretation that time taken by enquiry should be excluded.
Chunchu Narayana v. Karrapati Kesappa, AIR 1951 Mad 500	Latest Madras High Court case favouring the view that an aggrieved party should not be prejudiced by delay and that the two-month period should be computed from when the Magistrate took cognizance/sent the matter for enquiry.	Identified as recent supportive authority; the Court referred to it as consistent with the non-literal interpretation the Court adopts.
Janama Bhoi v. Draupadi, AIR 1952 Orissa 26	A view (Ray, C.J.) criticized by the Court for putting too literal a construction on the proviso and potentially enabling parties to defeat the legal fiction by delaying enquiry.	The Court explicitly disagreed with the approach in this case and rejected its legal reasoning as not laying down good law for the present purposes.
Collector of Dinajepur v. G.N. Roy, 25 Cal 346	Interprets the preposition "at" (in statutory context) as indicating proximity of time rather than a strictly fixed point of time, used by analogy in interpreting "at the date of the order".	The Court used this case by analogy to support its conclusion that "at the date of the order" should be read as referring to the proximate time or series of proceedings culminating in the order, not strictly the exact calendar date.

Court's Reasoning and Analysis

The Court proceeded in a stepwise manner:

Parentage and title-related factual findings: The Court accepted the findings of the Courts below that the petitioners were not the daughters of Bhagat and therefore treated that factual point as established.
On facts and the date of dispossession: Although the petitioners alleged sowing on 27-4-1952, the first party did not admit dispossession on that date and the first real mutual apprehension of breach of the peace occurred only on 18-6-1952 when both parties complained to the Police. The Police recommended action under S.145 on 28-6-1952 and the Magistrate drew a preliminary order on 2-7-1952.
Legal characterization of the 27-4 act: The Court held that the petitioners' acts on 27-4-1952 amounted, at most, to a sporadic trespass or an attempt to take possession, but did not constitute a completed forcible dispossession as required by Section 145. The Court stated the settled principle that a fugitive act of trespass or interference with possession is not dispossession; dispossession under S.145 must be a completed act of forcible driving out.
Interpretation of the statutory scheme (S.145(1) and (4) and the first proviso): The Court examined the language of S.145(1) (Magistrate to act on Police report or other information and make a preliminary order) and S.145(4) (Magistrate to hear parties and decide who was "at the date of the order" in possession). The first proviso allows the Magistrate to treat a party dispossessed "within two months before the date of such order" as if he had been in possession at that date.
Constructional analysis of "at the date of the order" and the two-month proviso: The Court rejected an overly literal construction of "at the date of the order" and of the two-month period. It reasoned that literalism would produce unjust results (because the Police or Court may prevent access to the land pending enquiry, and S.144 orders may prohibit entry), thereby penalizing the dispossessed party for delays caused by official processes. The Court invoked the maxim actus curiae neminem gravabit (an act of the Court ought not to prejudice anyone) and the legislative awareness of legal fictions (nunc pro tunc) to justify a construction that excludes time taken by the Police or by the Court prior to the preliminary order from the computation of the two months.
Reliance on authorities: After reviewing conflicting authorities, the Court aligned with the line of cases (e.g., Krishnam Raju, Srinivasa Reddy, Chunchu Narayana) that hold an aggrieved party should not be deprived of the benefit of the proviso because of delay attributable to the Police or the Magistrate. The Court rejected the "extreme" line that measured two months strictly from the date of the preliminary order (cases such as Pitchai Moopan and others), and expressly disagreed with the view taken by Ray, C.J. in Janama Bhoi v. Draupadi.
Textual and analogical support: The Court observed that the use of "at" indicates temporal proximity rather than a single fixed calendar point; by analogy to Section 23(1) of the Land Acquisition Act and Collector of Dinajepur v. G.N. Roy it concluded "at the date of the order" should be read to refer to the proximate series of events culminating in the order.
Application to the present facts: Because the first real apprehension of breach of the peace arose on 18-6-1952 and the Police enquiry and preliminary order process began thereafter, the Court treated the period consumed by the Police and the Court as not counting against the dispossessed party for the purposes of the two-month proviso. It also found as a factual matter that the petitioners' earlier act on 27-4-1952 did not amount to dispossession.

Holding and Implications

Holding: The Court directed that the rule be discharged and declared the possession of the disputed lands in favour of the first party. The revision was dismissed and the rule discharged.

Implications and consequences:

The direct effect is that the first party's possession of the 51.052 acres was judicially declared in their favour and the petitioners' revision was dismissed.
The Court applied and endorsed a non-literal construction of the first proviso to S.145(4), holding that time occupied by the Police or by the Court before the preliminary order should be excluded when computing the two months referred to in the proviso; consequently, a dispossessed party should not be prejudiced by delay in the enquiry or preliminary proceedings.
The Court expressly rejected the literal approach that would measure the two months strictly from the date of the preliminary order and criticized that approach as potentially rewarding parties who delay enquiry.

B/H.G.P

Show all summary ...

1. By an order dated 31-3-1953, the Magistrate, First Class, Bargarh, declared the possession of the disputed lands measuring 51.052 acres in favour of the first party (opposite parties herein) in M.C No. 65/314 of 1952 a proceeding under Section 145 of the Cr PC. The Sessions Judge, Sambalpur, affirmed this order by his judgment dated 30-7-1953, in criminal revision Case No. 6 of 1953. It is against this order that the members of the second party have come up in revision to this Court. The facts leading to the dispute lie within a short compass. Akula, the father of the first party was admittedly the Thikadar — Gaontia, & after his death Kartick the first party, is the Thikadar. The disputed lands are the sir lands of the village enjoyed by the gaontias in lieu of maintenance. The members of the second party claim to be the daughters of one Bhagat who was the cousin of Akula and was the previous gaontia and who, it is said, died issueless over 20 years ago. It has been found by both the Courts below that the petitioners are, in fact, not the daughters of Bhagat. It is contended that they are the daughters of one Jagat belonging to a junior branch. In view of the findings of the Court below and the overwhelming documentary evidence, learned counsel for the petitioners did not reagitate this point before me, ami it must be taken as established that the petitioners are not the daughters of Bhagat as alleged by them.

2. But apart from that, the main contention raised is that the order of the Magistrate violates the provisions S. 145(4) as the first party had been dispossessed more than two months prior to the passing of the preliminary order. The admitted faces are that on 18-6-1952 the members of the second party laid a report with the Police that they had cultivated the disputed fields on Akhayatruthiya day, corresponding to 27-4-1952 and that the members of the first party damaged the seedlings on 18-6-1952.

3. It appears that on the same day, viz., 18-6-1952, the first party reported that the petitioners went armed with lathis and axes and ploughed the disputed lands and sowed paddy that very morning. On 28-6-1952, the Police sent a report recommending immediate action under Section 145 of the Cr PC and the Magistrate drew up a preliminary order on 2-7-1952. On these facts, it is argued that the dispossession of the first party took place on 27-4-1952, that is, more than two months prior to the date of the preliminary order, and that therefore the Magistrate had no jurisdiction to declare the possession of the first party. It will be noticed that the petitioners themselves alleged that they had sown paddy on 27-4-1952, but the members of the first party did not admit that they had been dispossessed on that date. It may well be that by sowing paddy, the petitioners made a sporadic attempt to take the possession of the lands by force on 27-4-1952. But the first party neither admitted, nor made any complaint about it.

4. It must therefore be held that what the petitioners did on 27-4-1952 did not amount to dispossession of the first party, and that the first apprehension of a breach of the peace arose only on 18-6-1952 when both parties reported to the Police against each other about a possible clash. It is wen settled that a fugitive act of trespass or interference with possession does not amount to dispossession. The dispossession referred to in Section 145 of the Cr PC must be one that amounts to a completed act of forcible driving out of a party in possession.

5. Learned counsel for the petitioners has referred me to several cases where the first proviso to sub-sec. (4) of Section 145 of the Cr PC has been considered. There is apparently a divergence of opinion as to whether the two months' period fixed in that proviso should be literally interpreted. If the party approaches the Police or the Magistrate complaining of interference with his possession, and if the enquiry lasts for more than two months before the preliminary order is passed by the Magistrate, the question would then arise as to what should be the date of commencement of the two months period prescribed in that proviso. Sub-section (1) of Section 145 of the Cr PC lays down that if a Magistrate is satisfied from the Police report, or other information, that dispute likely to cause a breach of the peace exists, he shall make an order in writing requiring the parties to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Sub-section (4) provides that he shall here the parties, receive all such evidence as may be produced, and, if possible, decide whether any and which of the parties was ‘at the date of the order’ before mentioned, in such possession of the said subject. The first proviso of this clause reads as follows;

“Provided that if it appears to the Magistrate that any party has, within two months before the date of such order, been forcibly and wrong fully dispossessed, he may treat the parties so dispossessed as if he had been in possession at such date.”

6. If we interpret the words “at the date of the; order” occurring in cl. (4) too literally, it may often be found that in actual experience neither party would be in possession on that date, for it frequently happens that the Police prevent both parties from going upon the land pending enquiry. It may well be that an order under Section 144 of the Cr PC is passed by a Magistrate prohibiting either party from entering upon the land. Its would be unreasonable to so interpret the expression “at the date of the order” literally, that the Magistrate may say that on that date neither party was in possession.

7. It has therefore been held in several cases that a proceeding under Section 144 of the Cr PC followed by a proceeding under S. 145 cannot be allowed to operate in such a way as to disturb lawful possession and that the point of time with reference to which the possession of either party was to be shown was the date when the proceeding under S. 144 had been started — See — ‘Saddique v. Sheikh Mohid’, AIR 1930 Pat 556 (A); ‘Joyantikumar v. Middleton’, 27 Cal 785 (B).

8. This reasoning can only be justified on the principle that an act of Court cannot prejudice a party ‘(actus curiae neminem gravabit)’ — See Broom's Legal Maxims. This maxim is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law. The delay in deciding the dispute is the act of the Court for which neither party should suffer.

9. The Legislature must have been conscious of the well known maxim — ‘nunc pro tunc’ (now for then) when it enacted that the Magistrate should decide which of the parties was at the date of the order in possession although the order is preceded by a Police report and no such time-limit is laid down for the Police to make their report — I am inclined to adopt much the same line of reasoning in interpreting the first proviso which says that if any party has, within two months next before the date of such order, been forcibly dispossessed, he may treat the party so dispossessed as if he had been in possession at such date.

10. The language would indicate that the proviso is in the nature of a rule of evidence and vests the discretion on the Magistrate to treat a dispossessed party as if he had been in possession. In other words, a legal fiction is created in favour of the party dispossessed. If I am right in holding that any delay on the part of the Court or of the Police will not be taken into account in determining the possession of the disputed property “at the date of the order” it follows that the period of two months next before the date of such order should also be so construed as to exclude the time occupied by the Court or the Police before the passing of the preliminary order.

11. As I have already stated above there has been some conflict of views as to whether the expression “two months next before the date of such order” should be literally construed or whether a more liberal interpretation should be adopted. The cases reported in — ‘Pitchai Moopan v. Narayanaswamy Moopan’, 4 Mad Cri C 168 (C); — ‘Arunachala v. Chinna Durai’, AIR 1945 Mad 216 (D); — ‘Emperor v. Baijnath’, AIR 1929 Oudh 526 (E); — ‘Meharban Singh v. Bhola Singh’, AIR 1935 All 35 (F) and — ‘Emperor v. Parashram’, AIR 1931 Nag 38 (G), take the extreme view that the period of two months from the date of the order would mean two months from the date of the preliminary order and not two months from the date of the complaint.

12. On the other side of the line are the cases reported in — ‘Krishnam Raju v. Chintala Swami Naidu’, AIR 1927 Mad 816 (1) (H); — ‘Srinivasa Reddy v. Dasaratha Rama Reddy’, AIR 1929 Mad 198 (I) where it has been held that an aggrieved party shall not be made to suffer because the Court, for some reason or other, delayed the passing of the preliminary order referred to in sub-s. (1) of Section 145 of the Cr PC. The latest case of the Madras High Court favouring this view is that of — ‘Chunchu Narayana v. Karrapati Kesappa’, AIR 1951 Mad 500 (J).

13. As has been pointed out in that case, S. 145 contemplates that the Magistrate should pass the preliminary order without any delay, ‘after’ the receipt of the Police report or the information; and S. 145(1) does not contemplate any prolonged enquiry, before the making of the preliminary order. If, however, the Magistrate sends it to the Police for enquiry before passing of the preliminary order, he must be deemed to have taken cognizance of the matter and the two months period should be calculated from that date and not from the date when he makes up his mind and draws up the preliminary order.

14. I am unable to subscribe to the view taken by Ray, C.J in — ‘Janama Bhoi v. Draupadi’, AIR 1952 Orissa 26 (K) as laying down good law. To me it appears that to put a too literal construction on the language of the proviso would be to put a premium on dishonest and cantankerous parties who can always see to it that the enquiry is delayed and that the party dispossessed is ultimately deprived of the benefit of the legal fiction created by the proviso. If the party complaining comes to Court more than two months after his dispossession, it is manifest that the legal fiction cannot be invoked in his favour. But if the period of two months expires owing to the time occupied by the enquiry either by the Police or by the Magistrate before the preliminary order is passed, neither the intention nor the language adopted by the Legislature would justify the contrary view taken in some of the reported cases.

15. The use of the preposition “at” in the expression “at the date of the order” inclines me to the view that what is meant is the series of proceedings culminating in the order, rather than the exact date on which the order is passed. It indicates more the proximity of events than the exact point of time when the order is passed. For instance, in Section 23(1) of the Land Acquisition Act, the expression “at the time of the Collector's taking possession of the land” is used in the fourth clause. These words do not mean that compensation can only be given for the damage which had actually at that time been sustained, without reference to the continuing damage caused by the acquisition. It has been held in — ‘Collector of Dinajepur v. G.N Roy’, 25 Cal 346 (L) that the words must be taken to mean the time when the damage took place and the right to compensation arises. In the previous Act of 1870, the words used were “at the time of awarding compensation.” That was open to abuse as the award might have been, and frequently was, made long after possession had been taken. The word ‘at’ should, therefore, be understood as “near to the date”, rather than a fixed date. I would accordingly direct that the rule should be discharged and that the possession of the disputed lands be declared in favour of the first party. The revision is dismissed.