K. Lahiri, J.
1. The petitioner questions the validity of an order passed by the Magistrate refusing to put the petitioner in possession of a disputed land, which was the subject matter of a dispute In a proceeding under Section 145, Cr. P.C. on the grounds that (1) the Court had 'no seisin over the case' as such, it had no jurisdiction to make any order amending, adding or altering the final order which had been passed; and (2) this Court in Criminal Reference No. 25 of 1974 disposed of on 5-6-77 directed the parties to seek redress in Civil Court,
2. Mr. N. M. Dam, the learned Counsel appearing for the petitioner submits that the impugned order is a reversible one, as the Court has failed to exercise its jurisdiction vested in it by law, vide Section 145(6), Cr. P.C.
3.-4. The relevant facts necessary for the disposal of the points raised by the counsel for the petitioner may be summarised as follows:
The petitioner was the initiator of a proceeding under Section 145, Cr. P.C. (old). A proceeding was drawn up in respect of the disputed land. The learned Magistrate directed attachment of the same but, however, receipt of a Police report to the effect that in a portion of the disputed land the members Of the Second-party had forcibly occupied and constructed some structure the Magistrate directed attachment of the disputed land excepting the portion in which the second-party had been in possession by constructing their houses, The disputed land measures 4 Bighas and 18 Kathas. The learned Magistrate attached 4 bighas 12 kathas and 12 chataks of land. The portion which was not attached, but which remained all the same a part of the disputed land, was left out on the ground as mentioned above. The proceeding was drawn up on 13-2-1973 whereas the opposite parties had occupied or dispossessed the portion of the disputed land on 9-2-73. After following the procedure laid down under Section 145, Cr. P.C., on perusal of the relevant materials, the learned Magistrate held as under:
I, therefore, find and hold conclusively that it was the 1st party and 1st party alone who possessed the D/L at the relevant date of order on point of time as envisaged by the Section. I accordingly declare the possession of the 1st party over the D/L and further order that disturbance of such possession is strictly forbidden until the 1st party is evicted therefrom in due course of law.
Ask police to release the D/L in favour of the first party.
5. Therefore, it is indubitable that there was a final order in favour of the first-party declaring him in possession of the land and prohibiting the members of the second-party to disturb the possession of the 1st party. As such, on a perusal of the final order it appears clear that the final order covers the entire disputed land including the portion not attached during the course of the proceeding. It goes without saying that the learned Magistrate found the petitioner to be in actual physical possession of the attached land on the date of the drawal of the proceeding. The declaratory order of the learned Magistrate also indicates that the learned Magistrate held the occupation or dispossession made by the second-party on 9-2-73, to be wrongful and forcible and acting under the second proviso to Section 145(4), Cr. P.C. treated the first-party so dispossessed as if the party had been in possession of that portion of the disputed land on the date of the initiation of the proceeding. At least, the declaration made by the trial Court spells out the said conclusion. No other version supports the aforesaid conclusion upheld by this Court as valid in Criminal Reference No. 25 of 1974. Therefore, I am constrained to hold that whether rightly or wrongly, the trial Court has held that the first-party was in possession of the entire disputed land on the date of the drawal of the proceeding and the same included the unattached portion of the disputed land.
6. However, the opposite parties questioned the validity of the said final order, including the power and jurisdiction of the Court to declare possession in respect of the land which was admittedly in possession of the second-party on the date of the drawal of the proceeding. The learned Sessions Judge considered the point to be relevant and along with other points referred the same for due consideration of this Court in exercise of his powers under Section 435/438 of the Cr. P.C. (old.). However, the matter came up before Rangarajan, J. in Criminal Reference No. 25 of 1974, who by his order dated 5-6-77 turned down the said contention and upheld the final order passed by the trial Court. Rangarajan, J. held as under:
The Magistrate seized of the dispute under Section 145 Cr. P.C. has two options. He may, if he finds that the party invoking the protection of Section 145 Cr. P.C. was dispossessed within two months of the preliminary order, treat the property as having been in the possession of the said person, despite the dispossession within the said period or he may order the person dispossessing to be removed from possession by giving a direction to that effect. It seems to me that on a fair reading of the Section 145, Cr. P.C. the Magistrate in this case was adopting the former course. Without, however, realising the kind of choice that is open as stated above to a Magistrate seized of a dispute under Section 145 Cr. P.C. and without reading the order of the said Magistrate, as I have done, the learned Sessions Judge has, in the course of his order, made the present reference seeking to make a point in favour of the opposite Party itself from the said dispossessed person not having been ordered to be removed, overlooking the fact that the Magistrate had found that the Ist party must be deemed to have been in possession within two months prior to the preliminary order, despite the dispossession on 9-2-73.
(Underscored by me)
Therefore, this Court in the aforesaid Criminal Reference did not disturb the final order of the learned Magistrate. This Court has also held that the impugned order declaring possession in respect of the unattached land was not illegal in view of the fact that the Magistrate had found that 'the first-party must be deemed to have been in possession within two months prior to the preliminary order, despite the dispossession on 9-2-1973.
7. After disposal of the Criminal Reference, the first-party sought assistance of the Court below to give him effective possession in terms of the final order as upheld by this Court. The trial Court, as stated above, has turned down the prayer and hence this revision.
8. Therefore, the fact remains undisturbed that the final order of the Magistrate declaring possession of the first-party was upheld by this Court in toto. This Court has already passed an order upholding the impugned order. The learned trial Court in the impugned order has picked up a stray obiter observation and laid much emphasis on it. The observation of this Court in the penultimate paragraph reading as 'Since the whole matter would have to be fought out before a Civil Court, I do not propose to make (nor I have intended to make) any observation which may hold or hinder one side or the other', in my opinion, is an obiter observation and has nothing to do with the merits of the case. This Court has conclusively held that the final order made by the learned Magistrate was valid and required no interference at all, The observation was made as an abundant caution and it did not in any way affect or limit the power of the Magistrate to give effect to the final order. The intention of the learned Single Judge is evident. His Lordship was fully aware that an order under Section 145 Cr. P.C. was a police order and the parties were likely to go to the Civil Court to fight out their right in a Civil action and hence a note of warning was rung to the said Court dissuading it not to be influenced by any of the observations made in His Lordship's Judgment. Under these circumstances, I am. constrained to hold that the learned Magistrate has misdirected himself in picking up a stray sentence from the Judgment and using the same as an instrument for not exercising his powers conferred under the law over-looking the relevant and pertinent points disposed of by this Court. Under these circumstances, I hold that the learned Magistrate was wrong in assuming that it had no jurisdiction to give effect to the final order in view of an order of this Court in Criminal Reference No. 25 of 1974.
9. The other ground on which the trial Court did not exercise its jurisdiction is that it had no jurisdiction to make or pass any ancillary order after the final order was passed in a proceeding under Section 145 Cr. P.C. Does a Magistrate become a 'functus officio' immediately after the pronouncement of a final order under Section 145 Cr. P.C.? The learned Magistrate has held in the affirmative. The final order as held by this Court in Criminal Reference No. 25 of 1974, incorporated within itself an order declaring the first party in possession of the attached land as he was found to be in possession of the land on the date of the drawal of the proceeding and also a couched order treating the first-party to be in possession of the unattached land in exercise of the power of the Court under the proviso to Section 145 (4) of the Code. Apart from that, I find that the final order contains a prohibitory order directing the members of the second-party not to disturb the possession of the first-party in respect of the disputed land. I hold that the view expressed by the learned Magistrate that a Magistrate becomes functus officio after making the final order, is erroneous. Relevant portion of Section 145(6)(a) reads as under:
145.(6)(a) If the Magistrate decides that one of the parties was, or should under the proviso to Sub-section (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 disturbance of such possession until such eviction; and when he proceeds under the proviso to Sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(Underscored by me)
10. A mere glance at the section makes it clear that the first part of the Section refers to the contents of the order whereas the second part is not merely description of the order at all but refers to some future action to be taken. In my opinion, the first part may be compared with a decree of a Civil Court whereas the second part relates to execution. Under these circumstances, there is nothing in the Section prohibiting a Magistrate to declare a party to be entitled to possession and if he had been dispossessed within two months next before the drawal of the proceeding, directing restoration of possession to him. The order of restoration of possession may be made in the final order or may be kept in abeyance and passed at a later stage. If the party against whom an order has been made voluntarily obeys the terms of the decretal part of the order the question of execution may not arise. But, however, if a party in spite of the decretal order does not vacate the land the Court may, for the ends of justice, direct restoration of possession of the land. It is not obligatory on the part of the Magistrate to pass the order of execution in the final order itself although it is highly desirable to do it.
11. Further, the sub-section itself provides for declaration in favour of a party to be entitled to possess the disputed land until evicted therefrom in due course of law and also forbidding all disturbances of such possession until such eviction. This is the form of the order that must be passed in all the cases including the case of a party, who by virtue of the deeming provision is entitled to possess under the second proviso to Sub-section (4) of Section 145, Cr. P.C. Therefore, even in the case of a party who has dispossessed the other party within two months next before the date of the drawal of the proceeding and even on the date of the final order, a formal order enjoining him not to disturb the possession of the other party must be passed. A direction of the nature in such a case is obviously meaningless unless the party is restored to possession. The second part of the Section 145(6), in my opinion, deals with the case of a person, who is deemed to be in possession under the second proviso to Section 145(4), Cr. P.C. and it is most natural to expect that the Section would contain a mandatory direction that the party in question shall be restored to possession. The legislative intent is clearly reflected in Form No. 22 of Schedule V of the Cr. P.C. The form winds up at the declaration of the right to possession and an injunction prohibiting disturbance or interruption but does not fuse or incorporate any order of restoration. There is no doubt that an order of restoration is optional but if the view expressed by the trial Court that such an order must be made as a part of the final order, were correct, one would expect the form to contain a provision for an order for possession, with an indication that it would not be necessary if not so required.
12. For the reasons set forth above, I am of the opinion that the Section does not require an order for possession to be made at the time of the making of the declaratory order and such an order can be made subsequently. In the instant case, only a declaratory order was made and the proceeding did not terminate with the making of the order on 24-7-73 i.e. the date of the final order. It still remained pending for making ancillary orders to give effect to the declaratory order. I am of the view that even on transfer of the Magistrate making the declaratory order, his successor is competent to deal with the case and to make or pass any ancillary order necessary for giving effect to the final order. After the making of the declaratory order the case did not come to an end as a matter of law. An application for restoration of possession was made. This could not be made before the Magistrate making the final order and the successor of the learned Magistrate making the final order, has had the power and jurisdiction to entertain and dispose of the application in the same manner in which the Magistrate making the final order could have passed. The operative portion of the order does not show that the learned Magistrate passed any order regarding restoration of possession. As such, an application was made for an order directing restoration of possession. As stated already, the Magistrate making the final order could have dealt with this application. In my opinion, a successor has the power to deal with such an application and to pass any such order which could have been passed by the learned Magistrate making the final order,
13. A final order under Section 145(6) Cr. P.C. contemplates the following vicissitudes:
(1) A Magistrate may find one of the parties in possession on the date of the drawal of the proceeding, in such a case the proper order would be to declare his right to be in possession until evicted therefrom in due course of law and negating the other party to disturb his possession, or (2) a Magistrate may find a party was In possession but has been forcibly and wrongfully dispossessed by another party within two months prior to the initiation of the proceeding in such a case the proper order would be to declare the party so dispossessed as being entitled to possession until evicted therefrom in due course of law and prohibiting the other party from disturbing Ms possession.
14. In either case further reliefs may be necessary, In the first case, if the land is under attachment a further order may be necessary directing the police or any other person to put the successful party in possession of the disputed land which is 'in custodia legis' (in the custody of the law). On failure to get possession in the manner directed by the Court, a party may come to the court to get the full and adequate relief. In the latter eventuality, if the party against whom an order Is passed obeys it, the curtain is drawn. However, if he does not hand over the possession and continues to disturb the possession of the first party by continuing to remain on the land, the party in whose favour the order is made, may come to the Court for recouping or reinstatement or retrieving the actual physical possession of the land.
15. In the instant case, as the matter stands today, the trial court declared possession of the entire disputed land In favour of the first party. This Court has held in Criminal Reference No. 25 of 1974 that the learned Magistrate while making the final order had passed an order under the second proviso to Sub-section (4) of Section 145 Cr. P.C. in favour of the first party. As such, the first party is entitled to get back, by virtue of the final order, the delivery of possession of the land kept under attachment and the petitioner is also entitled to restoration of possession of the portion of the disputed land left out of attachment by the trial Court, in view of the clear findings of the courts. If the section is not interpreted in the manner, a person In whose favour an order under Section 145 Cr. P.C. has been made, shall be deprived of the fruits of the litigation only on account of an omission made by a Court of law. In my opinion, no party should suffer on account of any omission of the court.
16. In the result, I hold, on an interpretation of Section 145, that the first party is entitled to restoration of possession of the land in view of the order made by the trial court, In any view of the matter, this Court has confirmed in Criminal Reference (supra) that the first final order was valid and was made under the second proviso of Section 145 of! the Code. The Judgment and Order have become final and are binding on me, Situated thus, I am bound to hold that the final order is valid and in accordance with law. The only omission, if any, made by the trial Court was not to pass any order restoring the possession in favour of the first party, even after a declaration made under Section 145 (4J (Second proviso). As such, it must be held that there was an omission on the part of the Court. The maxim 'actus curiae neminem gravabit' (Jenk Cent 118)-meaning 'an act of the Court shall prejudice no man' is founded upon Justice and good sense; and affords a safe and certain guide for the administration of justice. In my opinion, there is no higher principle for the guidance of the Court than the one that no act of the Court should harm a litigant and it is the prime duty of Court to see that If a person is harmed by mistake or omission of the Court, he should be restored to the position he would have occupied but for the mistake.
17. The advantage of the omission or the mistake cannot be claimed by the other party. Such a mistake does not amount to a vested right, In order to destroy the said claim, the maxim aforesaid comes in aid of the Court of law. and the person affected by the omission or the mistake. Assuming that there was an omission on the part of the Magistrate while making the final order to pass an order of restitution in favour of the first party, the said act or omission of the Court should not be made use to cause harm to the litigant and the bounden duty of the Court is to see that the person affected by the mistake of the Court should be restored to the position he would have occupied but for the omission or the mistake. The power of setting right the wrong or the omission is very much there in the successor of the learned Magistrate. Under the circumstances, I hold that the impugned order of the learned Magistrate that it had no jurisdiction to entertain and dispose of the application is illegal, without jurisdiction and is liable to be set aside,
18. In the result, I allow the application, set aside the impugned order and direct the learned Magistrate to dispose of the application on merits after giving due notices on the parties. Records should be sent down to the trial Court at an early date.