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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • S.C.Nath
  • U.C.Tahbildar
  • S.K.Ghose
  • N.M.Lahiri
  • S.L.Sharma
Judges
  • Hon'ble Mr. Chief Justice C. P. Sinha
  • Hon'ble Mr. Justice Holiram Deka
  • Hon'ble Mr. Justice G. Mehrotra
Acts
  • Section 180 of the U.P Tenancy Act (17 of 1939).
  • provisions of S. 145, sub-clause (4),
  • Section 145, sub-clause (4),
  • sub-s. (4) of Section 145
  • Sub-section (6) of S. 145
  • sub-s. (6) of Section 145
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • S.C.Nath
  • U.C.Tahbildar
  • S.K.Ghose
  • N.M.Lahiri
  • S.L.Sharma
Judges
  • Hon'ble Mr. Chief Justice C. P. Sinha
  • Hon'ble Mr. Justice Holiram Deka
  • Hon'ble Mr. Justice G. Mehrotra
Acts
  • Section 180 of the U.P Tenancy Act (17 of 1939).
  • provisions of S. 145, sub-clause (4),
  • Section 145, sub-clause (4),
  • sub-s. (4) of Section 145
  • Sub-section (6) of S. 145
  • sub-s. (6) of Section 145
See more information ...
Smart Summary

Structured Summary of the Opinion (Special Bench — Sinha, C.J.)

Factual and Procedural Background

This is an appeal by the plaintiff from an order of the Subordinate Judge, Gauhati, disallowing the plaintiff's application for an interlocutory injunction under Order 39, Rules 1 and 2 of the Civil Procedure Code (CPC). The plaintiff (appellant) is the son of Satyendra Chandra Sengupta. Satyendra had four brothers: Jitendra (defendant No. 1), Hirendra (defendant No. 2), Sailendra (defendant No. 3), and Nirendra (defendant No. 5). The plaintiff instituted Title Suit No. 104 of 1958 for declaration of title and confirmation of possession over 2 kathas 1 lechas of land including a house and 15 lechas of land forming part of the property.

Prior to the suit, there had been proceedings under Section 145 of the Criminal Procedure Code (Cr PC) in the Magistrate's Court at Gauhati concerning the house and the 15 lechas of land. In that proceeding the Magistrate, on 5-8-1957, held that defendants Nos. 1 and 4 were to be treated as being in possession under Section 145(4), second proviso, on the finding that the plaintiff had forcibly and wrongfully dispossessed them within two months before the order. A reference against that order to this Court was rejected on 25-11-1958.

Within a few days thereafter the plaintiff filed the present civil suit (2-12-1958) and an application under Order 39, Rules 1 and 2 for interlocutory relief, seeking to restrain defendants from taking possession of the 15 lechas of land with the house. Defendant No.1 challenged the maintainability of the injunction application both in law and on facts. The Subordinate Judge disallowed the injunction application, relying in part upon a precedent and on the Magistrate's order under Section 145. The plaintiff appealed; the matter was ultimately heard by a Special Bench of this Court.

Legal Issues Presented

  1. Whether the provisions of Order 39, Rules 1 and 2 of the CPC apply where the defendant(s) have been declared to be deemed to be in possession under Section 145, sub-section (4), second proviso, of the Cr PC.
  2. If the first question is answered in the appellant's favour, whether the appellant is entitled to an order for injunction under Order 39 of the CPC.

Arguments of the Parties

Plaintiff-Appellant's Arguments

  • The plaintiff claims to be the sole heir and owner of the suit property by inheritance from his father and asserts that the defendants (the father's brothers) have no right, title or interest in the suit property.
  • The plaintiff asserts he is in possession of the house and 15 lechas of land, having been given possession by defendant No.4 (a tenant) on 1-5-1957, and that he remained in possession when the civil suit and the application under Order 39 CPC were made.
  • The plaintiff sought a temporary injunction restraining defendants Nos. 1 and 4 from disturbing his possession until disposal of the suit; he argued the Magistrate's declaration under Section 145(4) proviso 2 did not oust the Civil Court's jurisdiction to grant such relief where the defendants had not been put into physical possession under Section 145(6).

Defendant (Respondent) Arguments

  • Defendant No. 1 contended that the injunction application was not maintainable in law or on facts, and relied on the Magistrate's order under Section 145 declaring defendants to be deemed in possession; the Subordinate Judge accepted that position following a precedent.
  • On facts, defendant No.1 claimed that the disputed property was the exclusive property of their mother and her acquisition predated the appellant's connection with the property; he also pointed to municipal records and mutations in support of co-sharers' rights.
  • It was admitted by defendant No.1 that the plaintiff was in partial occupation of some houses and land for which injunction was sought, while other portions were occupied by another brother (defendant No.5).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Kripa Natha Chakravarty v. Rup Chand, (S) AIR 1955 Assam 56 Held (as used by the Court below) that where there was an order under Section 145 of the Cr PC in favour of the opposing defendant, the provisions of Order 39 of the CPC were excluded. The Special Bench disagreed with applying this precedent to bar O.39 in the present facts: it distinguished the situation because the Magistrate had not restored physical possession under S.145(6) and therefore the Civil Court's discretion under O.39 remained exercisable.
Case reported in (S) AIR 1955 Assam 156 (case under Section 147 Cr PC) Held that Order 39, Rule 2 would not be applicable where an order exists under Section 147 of the Cr PC (i.e., a criminal court order recognizing a right of way), and that a temporary injunction under O.39 R.2 would nullify the criminal court's order. The Special Bench held that this proposition was stated too broadly. It distinguished S.147 orders from S.145(4) proviso 2 situations and concluded that orders under preventive criminal sections do not necessarily fetter the Civil Court's discretion under O.39.
Barkat-Un-Nissa v. Abdul Aziz, ILR 22 All 214 Held that an order under Section 145 of the Cr PC is no bar to a Civil Court exercising powers (e.g., appointment of a receiver under civil procedure); Magistrate's order under S.145 is intended to control procedure only until the Civil Court takes seisin. The Court cited this to support the proposition that S.145 orders do not necessarily fetter Civil Court powers and to illustrate that civil remedies (like appointing a receiver) can co-exist with criminal preventive orders.
T. Surya Rao v. S. Sathiraju, AIR 1948 Mad 510 Held that an order passed under S.145(6) was not a 'judgment' for the purposes of sections 366 and 367 (procedural implication in the criminal context). The Special Bench noted the entry but said it was unnecessary to decide in the present case whether an order under S.145 is a judgment or not; the case was cited by counsel but not used as determinative.
Sewa Das v. Ram Parkash, AIR 1947 Lah 173 On facts, held that a Magistrate's finding of actual physical possession under S.145 prevented the unsuccessful party from obtaining injunction because the Magistrate had found actual possession. The Court treated this case as inapplicable on facts because there the criminal court found actual physical possession; by contrast, in the present case the Magistrate had deemed possession under the proviso but had not restored physical possession under S.145(6).
Bhinka v. Charan Singh, AIR 1959 SC 960 Held that orders under S.145(6) are temporary police orders to prevent breach of peace, do not decide title, and their life is co-extensive with a Civil Court decree; a Civil Court eviction order displaces the Magistrate's order. The Special Bench acknowledged this authoritative proposition but observed that the cited case involved a finding of actual physical possession and therefore did not directly resolve the specific factual question in the present matter.
Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani, 29 Ind App 24 (PC) Statement that orders under preventive criminal provisions are "merely police orders made to prevent breaches of the peace" and decide no question of title. The Special Bench quoted this Privy Council passage to reinforce that criminal preventive orders are temporary and do not decide title; but it also explained why that general proposition did not end the present inquiry.
Abdul Hamid v. Tridip Kumar, AIR 1953 Assam 104 The opinion does not state the specific rule from this case. The Court listed this authority among many and expressly held that it had no relevancy to the specific question at issue; the Court did not rely upon it.
Mt. Ladi Agarwallani v. Keolraj Sethi, (S) AIR 1955 Assam 174 The opinion does not state the specific rule from this case. Listed by counsel but the Court held it had no relevancy to the issue and did not consider it necessary to refer to it.
Krishna Gobinda v. Mt. Kishoribala Debi, AIR 1930 Cal 753 The opinion does not state the specific rule from this case. Listed but treated by the Court as not relevant to the present question.
Firm of Manohar Lal Mahabir Pershad v. Firm of Jai Narain Babu Lal, 55 Ind Cas 403 (AIR 1920 Lah 436) The opinion does not state the specific rule from this case. Listed among authorities that the Court found irrelevant to the specific issues here.
Sm. Lila Devi v. Bhatu Mahton, AIR 1951 Pat 224 The opinion does not state the specific rule from this case. Listed but held by the Court to be not relevant to the present matter.
P. Gopalacharyulu v. R. Veeranna, (S) AIR 1955 Andhra 142 The opinion does not state the specific rule from this case. Listed but the Court regarded it as having no bearing on the question at issue.
Deochandra Prasad Singh v. Amalendu Mukherji, AIR 1958 Pat 146 The opinion does not state the specific rule from this case. Listed but the Court considered it irrelevant for resolving the present case.
Kandaswami Udayan v. Annamalai Pillai, AIR 1949 Mad 105 The opinion does not state the specific rule from this case. Listed among cases counsel relied upon; the Court did not find it pertinent to the issue before it.
State of Bihar v. Ram Naresh Pandey, (S) AIR 1957 SC 389 The opinion does not state the specific rule from this case. Listed but treated as not relevant to the central question.
Kedar Nath v. Prahlad Rai, AIR 1960 SC 213 The opinion does not state the specific rule from this case. Listed among many authorities; the Court declined to consider it necessary for the decision.
Narsinghdas v. Damdoolal, AIR 1928 Nag 222 The opinion does not state the specific rule from this case. Also listed but held by the Court to be irrelevant for present purposes.

Court's Reasoning and Analysis

The Special Bench proceeded by a step-by-step analysis grounded on the precise statutory provisions of Section 145 of the Cr PC and the facts of the case as recorded by the Magistrate:

  1. Identification of the precise statutory mechanism: The Court examined Section 145(4) (and the second proviso thereto) and Section 145(6) Cr PC. It noted that under the second proviso to sub-section (4) a Magistrate may treat a party as having been in possession if that party was forcibly and wrongfully dispossessed within two months prior to the order; sub-section (6) empowers the Magistrate to issue an order declaring such party entitled to possession and to restore him to possession.
  2. Factual application to the Magistrate's order: The Magistrate found that defendants Nos. 1 and 4 had been forcibly dispossessed and declared them to be deemed in possession by application of the second proviso to S.145(4). Crucially, however, the Magistrate did not exercise the restorative power under S.145(6) to put those defendants into actual physical possession; instead he declared they were entitled to retain possession until evicted by due process.
  3. Distinction between "deeming" and actual restoration: The Court emphasized that a Magistrate's discretion to deem a party in possession for the purpose of preventing breach of the peace does not necessarily alter the factual situation as to who is in actual physical possession. Because the defendants had not been restored to physical possession under S.145(6), the plaintiff in fact remained in physical possession when the suit and the O.39 application were filed.
  4. Jurisdiction of the Civil Court under Order 39 CPC: The Court held that a mere order of the Magistrate treating a party as deemed in possession under S.145(4) proviso 2 does not, by itself, oust the jurisdiction of the Civil Court to grant an interlocutory injunction under Order 39 CPC where the facts justify such relief. The preventive provisions in the Cr PC are intended to maintain peace and do not decide title nor automatically fetter civil discretion.
  5. Critique and distinction of prior authorities: The Bench considered prior decisions (including a case reported in AIR 1955 Assam 156 and other authorities). It concluded that the proposition that an order under S.147 (or S.145 in certain factual permutations) automatically bars O.39 relief had been stated too broadly in some precedents. The Court carefully distinguished cases where the criminal court had found actual physical possession and/or had restored possession under S.145(6) from the present case where no restoration had occurred.
  6. Balance of convenience and final assessment: Turning to the balance of convenience (the central equitable consideration for interlocutory relief), the Court noted that the plaintiff was in present possession of the house and 15 lechas of land, and that the suit was pending and likely to be disposed of soon. Given that the Magistrate had not restored defendants to possession, the balance of convenience favored maintaining the plaintiff's present possession until final disposal.
  7. Relief ordered: On this basis the Court concluded that an interlocutory injunction under Order 39 was justified and that the appeal should be allowed.

Holding and Implications

Holding: APPEAL ALLOWED. The Special Bench allowed the appeal, decreed it with costs, and restrained defendants Nos. 1 and 4 from disturbing the possession of the plaintiff over the house and the 15 lechas of land (part of the suit property) until the final disposal of the suit.

Implications:

  • The direct effect is an interlocutory injunction in favour of the plaintiff restraining defendants Nos. 1 and 4 from disturbing the plaintiff's possession of the specific 15 lechas and house until final determination of the suit; the appeal is decreed with costs and the Subordinate Court is directed to expedite disposal of the suit.
  • On legal principle, the Court held that a Magistrate's order under Section 145(4) proviso 2 that a party be "deemed" to be in possession does not automatically oust the Civil Court's jurisdiction under Order 39 CPC to grant interlocutory relief. If the Magistrate also restores the party to physical possession under S.145(6) (or finds actual physical possession), then the question of granting an injunction in favour of the unsuccessful party may not arise; but where restoration has not occurred and the plaintiff remains in physical possession, the Civil Court retains discretion to grant injunctions based on balance of convenience.
  • The Court explicitly disagreed with an overly broad reading of earlier decisions which would categorically rule out civil interlocutory relief wherever a criminal preventive order exists; it confined the effect of criminal preventive orders to their purpose of preventing breach of the peace and emphasized they do not decide title.
  • No new general precedent beyond these reasoned clarifications was purportedly created; the decision primarily resolves the application of O.39 CPC in the particular factual context where a S.145(4) deeming order exists but no restoration under S.145(6) has been effected.

Disposition: The appeal was allowed; defendants Nos. 1 and 4 are restrained from disturbing the plaintiff's possession over the house and 15 lechas of land until final disposal of the suit. The Subordinate Court was directed to expedite trial. Costs were awarded to the appellant.

Prepared from the opinion of Sinha, C.J., with concurrence of Deka, J. and Mehrotra, J. (Special Bench).

Show full summary ...

    Brojendra Kumar Sen Gupta v. Jitendra Chandra Sen

    Sinha, C.J:— This is an appeal by the plaintiff whose application for an order of injunction under O. 39, R. 1 and 2 of the CPC, has been disallowed by the Court below. The points that ??? for decision are:

    1. Whether the provisions of O. 39, Rr. 1 and 2 of the CPC, have any application if the defendant or defendants has or have been declare to be deemed to be in possession under the provisions of Section 145 of the Cr PC?; and

    2. Whether the appellant is entitled to an order for injunction, if the first question mentioned above is decided in his favour?

    2. The facts giving rise to this appeal may by shortly stated as follows: The plaintiff-appellant ??? the son of one Satyendra Chandra Sengupta. Satyendra Chandra Sengupta had four other brothers namely, Jitendra (defendant No. 1), Hirendra (defendant No. 2), Sailendra (defendant No. 3), and Nirendra (defendant No. 5). The plaintiff brought Title Suit No. 104 of 1958 in the Court of the Subordinate Judge, Gauhati for declaration of his title and ??? confirmation of his possession over 2 kathas 1 lechas of land with houses thereon. Out of this property, on 15 lechas of land, there is a house with C.I sheet roof. In regard to this house and land there was a proceeding under Section 145 of the Cr PC in the Court of the Magistrate a Gauhati in which the defendants Nos. 1 and 4, tenant of the house, were the first party and the plaintiff and defendant No. 3, were the second part;

    3. In that case, the proceeding under Section 145 of the Cr PC, was drawn up on 18-5-1957 and it was disposed of on 5-8-1957, and the lean ed Magistrate in that proceeding declared the possession of defendants No. 1 and 4 under the provisions of S. 145, sub-clause (4), proviso 2, on his finding that the plaintiff had dispossessed defendant Nos. 1 and 4 forcibly and wrongfully within two months next before the date of the order under S. 145. Against the order of the learned Magistral a reference was made to this Court and on 25-11-1958, the reference was rejected. On 2-12-1958 within few days, the present suit has been file for declaration of tide, confirmation of possession and for permanent injunction against the defendant restraining them from taking possession of the property, which is the subject-matter of the proceed under S. 145, namely the house and land ??? 15 lechas of land. The plaintiff's case is that he is the sole ??? of the property in suit including the 15 lechas of land by right of inheritance from his father and the these defendants, brothers of the plaintiff's father had no right of any kind in the suit property. He further case is that he is in possession of the house and the 15 lechas of land aforesaid, as the possession of the house was relinquished in his favour by defendant No. 4, who was in possession as a tenant 1-5-1957. The application under O. 39, Rr. 1 and of the CPC, was objected to by defendant No. 1, Jitendra, who challenged the maintainability of the application for injunction in law as also on facts.

    4. The Court below after hearing the parties ??? to the conclusion that the above mentioned application did not attract the provisions of O. 39, R. 1, and so far as the application of R. 2 was concerned, he held, following the case of Kripa Natha Chakravarty v. Rup Chand, (S) AIR 1955 Assam 56, that as there was an order under Section 145 of the Cr PC, in favour of the opposing defendant, the provisions of O. 39 were ruled out. He also held that the plaintiff having been found to have forcibly dispossessed the opposite parties, he latter must be held to be in possession in law ??? the time of the suit and therefore, the possession ??? the petitioner-plaintiff being illegal in view of the foresaid order under Section 145 of the Cr PC, the question of balance of convenience in such a case did not arise and the plaintiff was not ??? to any order of injunction.

    5. The plaintiff feeling aggrieved by the order of the learned Subordinate Judge disallowing inunction, has come up in appeal. The matter was first placed for hearing before a learned single Judge ??? this Court, who referred the matter to a Division Bench and the Division Bench in view of the previous decision of this Court as mentioned above, considered it desirable that the matter should be ??? out and finally decided by a Special Bench, and hence this appeal has been heard by the Special Bench.

    6. The first question that has to be tackled is whether the provisions of O. 39, R. 1 or R. 2, have any application in a case where there has been an order against the plaintiff-petitioner in a proceeding under Section 145, sub-clause (4), proviso 2, of the Cr PC. I should now like to read he relevant portions of Section 145 of the Cr PC:

    “Whenever a District Magistrate, Sub-divisional magistrate or Magistrate of the first class is satisfied rom a police-report or other information that a dispute likely to cause a breach of the peace exists ??? any land or water or the boundaries there ??? …… he shall make an order in writing, … ??? the parties concerned in such dispute to ??? his Court …. within a time to be fixed by ??? Magistrate, and to put in written statements of their respective claims …… and further ??? them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, is they rely upon in support of such claims…..

    4. The Magistrate shall then, without reference to the merits of the claims of any of such parties to a right to possess the subject of dispute, peruse he statements, documents and affidavits, if any so out in, hear the parties …… and, if possible, decide the question whether any and which of the parties was at the date of the order before ??? in such possession of the said subject:…….

    Provided (second proviso) further that, if it appears to the Magistrate that any party has within wo months next before the date of such order been ??? and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:…….

    7. Party in possession to retain possession ??? evicted.— (6) If the Magistrate decides that he of the parties was or should under the second proviso to sub-s. (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbances of such possession until such eviction and when he proceeds under the second proviso to sub-s. (4), may restore to possession the party forcibly and wrongfully dispossessed…….

    8. In the present case, as I have already indicated, the defendant No. 1 was held by the learned Magistrate to have been forcibly dispossessed by the plaintiff within two months next before the date of the order and the learned Magistrate in the concluding part of his order, stated as follows:

    “On the basis of the above, I hold that the 2nd party secured forcible and wrongful possession of the subject of dispute within 2 months next before 18-5-1957…….

    As regards the question whether this is a fit case for applying the discretionary powers conferred by the second proviso below sub-s. (4) of Section 145 of the Cr PC, I have to take into consideration the fact that the 1st party No. 2 Jitendra Chandra Sen has been in exclusive possession of the subject of dispute at least since 1946 until dispossession and that 1st party No. 1 (defendant No. 4) has been in possession for about 6 years since 1951. To allow such long possession to be disturbed otherwise than by the due process of law will in my view be extremely unfair. In view of this and of what is stated above, I hold that the 1st party shall be treated under Section 145(4) of the Cr PC, proviso 2, as though in possession of the subject of dispute on 18-5-1957. I decide and declare the possession of the 1st party in the subject of dispute and entitled to retain such possession until evicted by due process of law and forbid all disturbance of such possession until such eviction.”

    9. The learned Magistrate, however, failed to restore to possession the party forcibly and wrongfully dispossessed as provided for by sub-clause (6) of the section.

    10. The question that naturally arises is whether the declaration of possession in the circumstances mentioned above can debar the plaintiff in a Civil Court from obtaining an order of injunction under the provisions of O. 39 of the CPC. The fact is that the defendant No. 1 was not in actual physical possession on the date when the proceeding under Section 145 of the Cr PC, was started. The Magistrate, however, was entitled in his discretion to hold the first party to the proceeding, namely defendants Nos. 1 and 4 as being in possession, although in fact they were not in possession. Sub-section (6) of S. 145 empowers the Magistrate to “restore to possession the party forcibly and wrongfully dispossessed”, if he had decided to “treat the party so dispossessed as if he had been in possession” on the date of the proceeding. We find in this case that the learned Magistrate treated the defendant No. 1 and defendant No. 4, who had been dispossessed, to be deemed to be in possession. If he had so held, under sub-s. (6) of Section 145 of the Cr PC, it was open to him to restore to possession the party, who had been forcibly dispossessed. He did not do so. Rather, on the other hand, he said:

    “I decide and declare the possession of the 1st party in the subject of dispute and entitled to retain such possession until evicted by due process of law and forbid all disturbances of such possession until such eviction.”

    11. In a case like this, there is no question of retention of possession, because the man was not in possession. The learned Magistrate may have passed, as I have said above, an order under sub-s. (6) of S. 145 and may have taken steps to restore the possession to defendants Nos. 1 and 4 who, according to him, had been forcibly dispossessed from the land and house, which is the subject-matter of the proceeding under S. 145. He did not do so. If he had taken recourse to his powers under sub-s. (6) of S. 145, and restored to possession the defendants No. 1 and 4, different considerations may have arisen. Butt we are not confronted with such a position. The fact remains that on the date when the proceeding terminated and on the date when the suit was filed and an application under O. 39 under the Code was made, the plaintiff had been in possession.

    12. The mere order of the Magistrate under Section 145 of the Cr PC, that a party may be treated to be deemed to be in possession does not in any manner affect the jurisdiction of the Civil Court, if an appropriate case is made for the exercise of its discretion under O. 39 of the CPC. The second proviso to sub-s. (4) of S. 145 is, in my opinion, enacted to help maintain the peace. If that provision had not been enacted, occasions may have arisen where the effort of one party on the other to snatch possession from the other hand caused breach of peace and breaking of heads. That, however does not alter the position in fact as to whether one or the other party is in possession. I am confining myself to the position that the defendant No. 1 or the tenant defendant No. 4 was not in possession, when the proceeding under Section 145 of the Cr PC, was instituted and that the plaintiff remained in possession in spite of the order under Section 145 of the Cr PC, and was in possession, when the application under O. 39 of the CPC was made.

    13. The provisions of Section 145 of the Cr PC, enable a Magistrate under that section to hold that one of the parties to the proceeding is in actual physical possession. It also enables him to hold that under certain circumstances, if one of the parties is not actually physically in possession, that party may still be held to be deemed to be in possession. We are concerned with the latter position, so far as the present case is concerned. Where there has been an order like this as in the present case, in my opinion, the Civil Court has untrammeled powers in a fit case to grant injunction restraining the defendant from dispossessing the plaintiff until the disposal of the suit. In (S) AIR 1955 Assam 156, which was a case under Section 147 of the Cr PC, after the orders in the S. 147 proceedings were passed, a suit had been instituted in a Civil Court and prayer for injunction made.

    14. The fact was that the defendants had instituted a proceeding under Section 147 of the Cr PC, in regard fp the right of access over a certain pathway, which had before the proceeding been closed. The criminal Court ordered that the first party to the proceeding, namely the defendant, had the right to use the disputed strip of land as pathway and interference with the pathway was prohibited. The plaintiff instituted a suit for permanent injunction restraining the defendants from exercising the right of pathway over the path in question and also prayed for temporary injunction. The trial Court declined to grant the injunction holding that O. 39, R. 1 did not apply to the facts of the case. On appeal, it was held that a temporary injunction could issue under O. 39, R. 2. Trip defendants came up in revision to this Court and to question formulated by their Lordships was as follows:

    “The first and the most important question the arises in the case is whether it was competent the Court acting under O. 39, R. 2, to issue the injunction.”

    and in that connection it was held that:

    “A lawful exercise of right cannot be describe as an injury. So long as the party is acting in ??? exercise of a right which the law recognises, it cannot be said that the party is committing any ??? leading to any injury. When as a result of the enquiry in the suit, it is found that the party has ??? got the particular right, the position would be different, but if on the date of the suit, the party ??? got the legal right to do a certain act, that act cannot be regarded as a wrong in law nor would ??? result be regarded as injury.

    …. All wrongs covered by the expression ??? would be within the scope of the expression ??? there has to be an injury and that injury ??? necessarily be a result of the wrong. It is not possible to say that a party who has secured an order in his favour under Section 147 of the Cr PC to use a particular path or to have the right of way over it, ??? any wrong or is causing any injury to any of by exercising the right which the order under Section 14 of the Cr PC recognises. The order is the result of summary proceeding and he can be deprived of the right only by the decision of a civil court again him on the question of title. Order 39, R. 2, there fore, would not be applicable to a case where ??? an order exists. The order of the learned Subordinate Judge in these circumstances is not ??? The Civil Court will not have jurisdiction in the circumstances of this case to grant a temporary injunction under O. 39, R. 2 also ……. If an injunction granted under O. 39, R. 2, the effect of the injunction would be to completely nullify the order under Section 147 of the Cr PC. The appellate order, therefore, cannot stand.”

    15. I have quoted these observations from ??? judgment of Mr. Justice Ram Labhaya with who the learned Chief Justice agreed. In my judgment the proposition has been too widely stated. The sections, namely, 144, 145, 146 and 147 of the Code of Criminal Procedure and similar other section are preventive sections enabling Courts of Magistrates to pass temporary orders, so that the ??? of peace, if any, may be averted. They do not decided the rights of the parties except for the purpose temporarily keeping the parties at peace. It cannot be laid down as a proposition of law that mere because an order has been passed under Section 147 of the Cr PC, declaring a certain party have the right to use a certain land as the ??? which had been closed by the other party, or declaring a party to be deemed to be in possession under S. 145, sub-s. (4), proviso 2, such an ??? fetters the discretion of the Civil Court under ??? provisions of O. 39 R. 1 or R. 2, as the case may be.

    16. In the aforesaid case, the appellants were ??? held by the order under Section 147 of the Cr PC, to actually using the pathway in question. Their ??? to use the pathway had been declared, although the pathway had been closed for some time past before the proceeding under S. 147 had been instituted ??? that kind of order under S. 147, in my opinion, did not at all fetter the discretion of the Court under O. 39 of the CPC; while I ??? that where an order under S. 145 has been pass to the effect that the defendant ??? the suit was four in actual physical possession of the land the question of granting injunction restraining the defendants from interfering with the possession of the plaintiff would not arise. It is only in cases where an order is passed under S. 145(4), proviso 2, that the question of protecting the rights of the plaintiff until decision of the suit arises, by issue of injunction restraining the defendants from interfering with the plaintiff's possession. I am, therefore, of the opinion that the case reported in (S) AIR 1955 Assam 156, aforementioned, was not correctly decided and I say so with great respect to the learned Judges who decided that case.

    17. No decided cases have been placed before us, which may be said to be on all fours to the facts of the present case. Mr. Ghose, the learned counsel, for the appellant, and Mr. Nath for the respondent, have, however, placed before the Court several authorities and I shall only try to examine those, which may have even a remote bearing on the question at issue. I do not propose to deal with the authorities, which have no bearing at all. On behalf of the appellant, reference is made to the case in Barkat-Un-Nissa v. Abdul Aziz, ILR 22 All 214. In that case, it was held that the fact that an order under Section 145 of the Cr PC had been passed, was no bar to the exercise by a Civil Court of the power conferred on it by Section 505 of the CPC to appoint a receiver in respect of the same property, and it was observed that:

    “…… the Code of Civil Procedure and the powers of Civil Courts under that Code are in no way fettered by any order that may be passed by a Magistrate under Section 145 of the Cr PC. The Magistrate's order under S. 145 is only intended to control any period up to the time when the Civil Court takes seisin of the matter and passes such orders as may be necessary for the protection of the property. In the present case, we consider it absolutely necessary for the preservation and better custody and management of the property that neither of the contending parties should be in possession of it until the dispute between them has been fully determined, and that the property should remain in the custody of a person independent of both parties,—a person moreover whose position will be that of an officer of the Court appointed by and answerable to the Court for all acts done by him during the period of his receivership.”

    18. This was not a case where the issue of an injunction under O. 39 of the CPC, had come up for discussion; but, this case does say that even though an order under Section 145 of the Cr PC, had been passed in favour of the defendant, that was no bar to the exercise of the power of the Civil Court in appointing a receiver of the same property. In T. Surya Rao v. S. Sathiraju, AIR 1948 Mad 510, it was held that an order passed under S. 145(6) was not a Judgment and therefore, the provisions of Ss. 366 and 367 were not attracted and consequently, the action of a succeeding Magistrate in pronouncing the order of his predecessor in Court was perfectly justified. It is unnecessary for the purpose of the present case to enter into the question as to whether an order passed under Section 145 of the Cr PC, is a judgment or is not a judgment.

    19. In the case of Sewa Das v. Ram Parkash, AIR 1947 Lah 173, the facts were entirely different. In a proceeding under Section 145 of the Cr PC between A and B, it was declared that A was in possession of the property in dispute. B then brought a suit for declaration that he was the lawful Mahanth of the Dera in suit and as such entitled to be in possession of and manage the property and had asked for recovery of possession of that property. He also prayed for an injunction restraining A from interfering with the properties during pendency of the suit and he claimed the right to show to the Civil Court that he was in possession at the date when the order under S. 145 was made, declaring A to be in possession.

    20. It was held by the learned single Judge of that Court that the finding of the Criminal Court under Section 145 of the Cr PC, to the effect that A was in possession of the property in dispute could not be questioned in a Civil Court and A must be held to be continuing in possession until he was evicted in due course of law. B was not, therefore, entitled to show that he was in possession of the property on the date of the order under S. 145. It was further held that B was not in possession on the date of the suit of the property in dispute of which he sought to recover possession and as such, no injunction could be granted in his favour. Thus, it appears that in that case the order under Section 145 of the Cr PC, was not passed under sub-section (4), proviso 2, of the section. The Magistrate did find that A was actually physically in possession. Therefore, that case also, in my opinion, is not relevant.

    21. Reference is also made to the case of Bhinka v. Charan Singh, AIR 1959 SC 960. In this case also, an order was passed under Section 145 of the Cr PC, and the learned Magistrate found that the appellants were in possession of the said lands and he declared that they were entitled to be in possession thereof until evicted therefrom in due course of law. So, on facts, that case was also different. But, their Lordships of the Supreme Court laid down as follows in regard to the effect of the order passed under Section 145 of the Cr PC:

    “Under S. 145(6) of the Code, a Magistrate is authorized to issue an order declaring a party to be entitled to possession of a land until evicted therefrom in due course of law. The Magistrate does not purport to decide a parry's title or right to possession of the land, but expressly reserves that question to be decided in due course of law. The foundation of his jurisdiction is on apprehension of the breach of the peace, and, with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. The life of the said order is coterminous with the passing of a decree by a Civil Court and the moment, a Civil Court makes an order of eviction, it, displaces the order of the Criminal Court”

    and they approvingly quoted a passage from the decision of the Privy Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani, 29 Ind App 24, 33 (PC), to the following effect:

    “These orders are merely police orders made to prevent breaches of the peace. They decide no question of title………”

    22. They ultimately decided that the provisional order of a Magistrate in regard to possession irrespective of the rights of the parties could not enable a person to resist the suit under Section 180 of the U.P Tenancy Act (17 of 1939). Here again, therefore, the Magistrate took action under Sec. 145, sub-sec. (4), and had found one of the parties to be actually in possession. In my opinion therefore, the fact that an order under Sec. 145 is merely a police order, does not give us much assistance in deciding the question at issue in the present case.

    23. I should like to make it clear that if the Magistrate under Section 145 of the Cr PC, decides that one of the parties to the proceeding is actually physically in possession or that having found that party should be deemed to be in possession within the meaning of the proviso 2 to sub-sec. (4), and later puts that party in possession under sub-sec. (6), there could be no question of passing an order of injunction under O. 39 in a suit brought by the unsuccessful party.

    24. In the present case, however, as I have been endeavoring to show, the defendant No. 1 was not put in possession as he may have been under sub-sec. (4), proviso 2, read with sub-sec. (6), the last portion, of Sec. 145. None of the other cases cited at the Bar, namely, Abdul Hamid v. Tridip Kumar, AIR 1953 Assam 104, Mt. Ladi Agarwallani v. Keolraj Sethi, (S) AIR 1955 Assam 174, Krishna Gobinda v. Mt. Kishoribala Debi, AIR 1930 Cal 753, Firm of Manohar Lal Mahabir Pershad v. Firm of Jai Narain Babu Lal, 55 Ind Cas 403 : (AIR 1920 Lah 436), Sm. Lila Devi v. Bhatu Mahton, AIR 1951 Pat 224, P. Gopalacharyulu v. R. Veeranna, (S) AIR 1955 Andhra 142, Deochandra Prasad Singh v. Amalendu Mukherji, AIR 1958 Pat 146, Kandaswami Udayan v. Annamalai Pillai, AIR 1949 Mad 105, State of Bihar v. Ram Naresh Pandey, (S) AIR 1957 SC 389, Kedar Nath v. Prahlad Rai, AIR 1960 SC 213, or Narsinghdas v. Damdoolal, AIR 1928 Nag 222, have any relevancy to the question at issue in the present case, and I do not consider it at all necessary to refer to them.

    25. The other question is on the merits. The plaintiff has brought the suit for declaration of his title and confirmation of his possession and for permanent injunction restraining the defendants Nos. 1 and 4, from taking possession of the disputed land, namely the land measuring 15 lechas With the house on it, out of the land in dispute. The plaintiff's case is that it was the self-acquired property of the father of the plaintiff, and after his death, the entire property vested solely in the plaintiff as heir and that none of the respondents had or has any manner of right title, interest or possession over the same.

    26. It is further stated that the plaintiff's family is now living on the suit land and that they are in occupation of the same. According to the case of the defendant No. 1, the property including the property for which injunction is prayed for, is the exclusive property of the mother of the defendant No. 1 and his other brothers, and that the property was acquired by the mother several years before the birth of the appellant, and at a time when his father was a separated member of the family, and that before the alleged wrongful dispossession by the plaintiff on 17-5-1957, the plaintiff had no connection with the property.

    27. It is, however, admitted that for the sake; of convenience, the name of the appellant's father was recorded in the Municipal records, but later, the names of the defendant No. 1 as well as those of the other co-sharers have been mutated in the municipal records. It is also admitted by the defendant No. 1 that the plaintiff is in partial occupation, of the land and the houses for which injunction is prayed for and the other portion of the suit land and houses are in occupation of Nirendra Chandra Sen, another brother of defendant No. 1, who is defendant No. 5 in the suit.

    28. At the present moment, what has to be looked to is the balance of convenience. The order under Section 145 of the Cr PC, mentions that the plaintiff is in possession of the house and the land, though he has taken forcible possession. The fact, however, remains that the present possession is with the plaintiff and as the suit is pending and is likely to be disposed of soon, in my judgment the balance of convenience lies in favour of the plaintiff-appellant. The question of title has the decided and if the Court finally comes to the conclusion that the plaintiff is not the rightful claimant, he will have to be dispossessed in ??? proceedings. In my opinion, therefore, the plaintiff is entitled to a temporary injunction res training defendant No. 1 and defendant No. 4 from disturbing the possession of the plaintiff until the final disposal of the suit. The appeal, therefore, is allowed and defendants Nos. 1 and 4 are restrained from disturbing the possession of the plaintiff over the house and land, 15 lechas in measurement, out the lands in dispute until the final disposal of the suit as prayed for, by the plaintiff-appellant. The result is that the appeal succeeds and it is decreed with costs. The Court below is directed to see the suit is disposed of as expeditiously as convenient.

    29. Deka, J.:— I agree.

    30. Mehrotra, J.:— I agree.

    CD/V.B.B

    31. Appeal allowed.

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    Brojendra Kumar Sen Gupta v. Jitendra Chandra Sen
    (Feb 29, 1960)