Subba Rao, C.J.
(1) This is a Criminal Revision Petition agagainst the order of the Additional First Class Magistrate, Thirupati, under S. 145(6), Criminal P. C. declaring that the 'A' party respondent is entitled to possession of the two houses, pandal and the back yard until evicted therefrom in due course of law.
The 'A' party respondent filed a petition on 7-2-1953 before the Sub-Divisional Magistrate (Executive) Chandragiri, stating that the 'B' party respondents were interfering with his possession of the two houses belonging to him, which for convenience will be described as rectangular and round houses.
(2) The case of the 'A' party respondent was that he was in possession of the rectangular house in his own right and that Subbamma, his elder sister, was with his permission residing in the round house and that the 'B' party respondents were trying to take forcible possession from him of the said two houses. The 'B' party respondents' contention was that Subbamma was the owner of the said two houses, that she sold the same to P. W. 1 on 4-11-1952 and put him in possession of the said two houses and that he was living in the round houses with his permission.
It is common case that on 7-2-1953 the rectangular house was put in the possession of the mediators peacefully and voluntarily to prevent disputes between the parties. On 7-5-1953, the Additional First Class Magistrate, Thirupati, to whom the case was transferred made a preliminary order equiring he 'A' party and 'B' party respondents to put in written statements of their respective claims in regard to the fact of actual possession of the subject of dispute. Both parties accordingly placed their entire evidence before the Magistrate.
On 24-5-1954, he made an order wherein he held that on 7-2-1953 the mediators took possession of the rectangular house, but prior to that the 'A' party respondent was in possession and that in regard to the round house, subbamma was in permissive possession, under a. W. 1 On those findings he came to the conclusion that A. W. 1 was in possession of the two houses on the date of the petition and the preliminary order.
On the basis of tht conclusion, he declared under S. 145(6), Criminal P. C., that the 'A' party respondent was entitled to the possession of the two houses, the pandal and the backyard until evicted therefrom in due course of law. The 'B' party respondents preferred the above revision.
(3) Mr. Ramachandra Reddy, learned counsel appearing for the 'B' party respondents, contended that, on the findings given by the Magistrate, the petition filed by the 'A' party respondent should have been dismissed.
In regard to the rectangular house, his contention was two-fold: (1) having held that on 7-2-1953, the mediators peacefully took possession of the said house to prevent further disputes between the parties, the Magistrate should have held that the first proviso to S. 145(4), Criminal P. C., has no application, for that could be invoked only in a case of forcible and wrongful dispossession and (ii) as the dispossession of the 'A' Party8 respondent was admittedly more than two months next before the date of the preliminary order, the proviso would not apply. This was countered by Mr. Venkatasubba Rao appearing for the 'A' party respondent by stating that the possession of the mediators was only for and on behalf of the 'A' party, and, therefore, the 'A' party respondent continued to be in possession upto and subsequent to the date of the preliminary order.
In regard to the round house, the argument of the learned ocunsel for the 'B' party respondents was that the Magistratehaving found that Subbamma was in actual possession purporting to be under the 'B' party respondents, he was wrong in upholding the possession of the 'A' party on the basis of title which question is irrelevant under s. 145, Criminal P. C. On the other hand, the learned counsel for the 'A' party respondent would argue that a Magistrate under S. 145(1) has jurisdiction to decide the question of permissive possession and declare the possession of the owner.
(4) The first question turns upon the provisionsof S. 145, Criminal P. C. The relevant provisions read:
'Section 145(1): Whenever a District Magistrate, Sub-Divisional Magistrate or a Magistrate of the First Class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace edxists concerning any land or water or the boundaires thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerend in such dispute to attend his Court in person or by pleader within a tim,e to be fixed by such Magistrate and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. * * *
(4) The Magistrate shall then, without reference to the merits of the claims of any such parties to a right to possess the subject of the dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect to each evgidence, take such further evidence, if any, as he thinks necessary, 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.
Provided, that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date.
* * *
(5) If the Magistrate decides that on of the parties was or should under the first 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 entilted to possession thereof until evicted therefrom in due course of law and forbidding all disturbnaces of such possession until such evictioin, and when he proceeds under the first proviso to sub-s. (4) he may restore to possession the party forcibly and wrongfully dispossessed.'
It is manifest from the aforesaid provisions that their object is to prevent breaches of pleace pending a statement of the rights of the parties in a civil Court. The necessary condition under the section, which confers jurisdiction on a Magistrate to make an enquiry, is that he should be satisfied from a Police report, or other information that a dispute likely to cause a breach of peace exists concerning land or water and his jurisdiction to make an enquiry is confined only to the fact of actual possession of the subject of dispute. He has no jurisdiction to adjudicate upon the rights of the parties to possession, for such question are within the exclusive jrusdiction of the civil Courts.
To meet the situation of a party, who was in possession immediately before the passing of the prelimianry order being dispossessed forcibly and wrongfully before that date, a proviso is added empowering a Magistrate to treat such a person dispossessed as if he had been in possession on the date of the preliminary order. For the purpose of this proviso, a specific period of two months next before the date of such order is fixed for invoking the fiction embodied in the proviso. Whatever may be the intention of the Legislature, the Statute specifically and in enpress terms fixes two months under the proviso and there is no provision either expressly or by necessary implication empowering a Magistrate to invoke the fiction to cover a period extending beyond the said two months.
(6) The first point, that arises for consideration, is whether there is any basis for the argument of the learned counsel that the preliminary order should be deemed to have been made on the date of the petition. Untrammelled by judicial decisions -- for there is a clear cleavage of opinion on the question -- we shall proceed to consider the scope of the section. The section doesnot postulate that an enquiry shold be started only on a petition filed by the affected party. the jurisdiction to make an enquiry under this section depends upon the preliminary order. A preliminary order may be made by a Magistrate ona police report, or other information that a dispute likely to cause a breach of peace exists concerning land or water. Though it often happens that a Magistrate is movedby a an application by the affected party, a preliminary enquiry also need not be at the instance of a particular party. The Magistrate may initiate it 'suo motu' Even if he initiates it at the instance of an affected party, he may drop it if he is not satisfied that the necessary conditions exist.
As the filing of a petition by an affected party is not a necessary condition for invoking the jurisdiction of the Court, to make a preliminary order, it is not permissible to hold that the preliminary order must be deemed to have been made on the date of the filling of the petition. If that was the intention of the Legislature, they would have added a proviso, as they did in other Statutes, that a preliminary order, though made at a later stage, must be deemed to have been made on the date on which the petitions was filed. They could not have conceivably made such as proviso, for there would be different dates for the intiation of proceedings depedning upon whether the proceedings were initiated at the instance of a third party, or started 'suo motu' by the Magistrate. Further, the contention, if accepted, by the Court to the effect that the preliminary order must be deemed to have been made on the date of the filing of the petition.
In this connection the pregnant observation of the Judicial Committee in -- 'Nagendranatha De v. Sures Chandra De', AIr 1932 PC 165 (A) may usefully be extracted:
'The fixation of periodsof limitation must always be to some extent arbitratry, and may frequently result in hardship. But in contruing such provisions, equitable consideration are out of place and the strict grammatical meaning of the words is, their Lordships think, the only safe guide'.
(7) We respectfully adopt these observations. The fact thaat in some cases a strict construction of the clear provisions of a statute may cause hardship to one party of other cannot be a ground for putting a construction on a section doing violence to the language used. After all, S. 145, Criminal P. c. prescribes a summary procedure for deciding a limited question of actual possession to prevent breach of peace. The rights of the parties are not affected and they will ultimately be decided by a civil Court. to effectuate the purpose, a reasonable time was fixed for dating back the order and if any party falls unfortunately on the other side of the line, he has his remedies in a civil Court. We are, therefore, clearly of the opinion that the first proviso to sub-s. (4) of S. 145, Criminal P. c. must be confined only to forcible and wrongful dispossession within two months next before the date of the preliminary order.
(8) There is, as we have already indicated, a deep cleavage of judicial opinion on this question, some Courts accepting the plain meaning of the clear words used in the section and others invoking equitable doctrines in construing the words which the Legislature according to them should have done. It is not necessary to cover the entire field of judicial conflict. It would be enough to notice a few judgments representing the different views.
Govinda Menon and Basheer Ahmed Sayeed JJ., in -- 'Narayana v. Kesappa', : AIR1951Mad500 (B) held that the two months periods contemplated in the proviso to S. 145(4) should be deemed to be from the date when the petition was presented. They mainly based their conclusion on the history of the provision and also on the legal maxim 'actus curiae neminem gravabit', which means that an act of the Court shall prejudice no man. With great respect to the learned Judges, we do not see how the history and the progress of the legislative provision is indicative of any such intention on the part of the Legislature. In the corresponding sections of the old Codes the aforesaid proviso is not to be found. See Ss. 318 of the code of 1861, 530 of the Code of 1872 and 145 of the Code of 1882. This proviso was added in 1898. In the corresponding sections of the old Codes, there was no provision fixing the date in relation to which the Magistrate had to make the enquiry.
The Calcutta High Court in -- 'Katras Jherriah Coal Co. v. Subkrista Daw and Co.', 22 Cal 297 (C) in construing S. 145, Criminal P. C. before the addition of the proviso, held that the time at which possession must be found in the party or the other must be governed by the facts of each particular case. At page 303 the learned Judges observed-
'But to hold that under such circumstances the Magistrate is precluded from enquiring into anything before the date when he recorded his own proceedings which he now tells us he ought to have done thirteen days before, is we think, to allow a person who has been acting in an unwarrantable manner to misuse the process of law to enable him to carry out his high-handed and improper scheme and this we cannot believe to have been the intention of the Legislature.'
(9) It may be that, to avoid the anomaly pointed out by the Calcutta High Coiurt, a proviso was added introducing a fiction. But, in adding the proviso, the Legislature in clear and express terms limited the operation of the fiction for only a period of two months prior to the date of the preliminary order. the fact, that the Legislature intended and even expected that Magistrates should make preliminary orders as quickly as possible is not of much relevance in considering the express provisions of the proviso. We, therefore, hold that the history of the legislation not only does not support the reasoning of the learned Judges, but also indicates that the framers of the proviso did not intend to extend the scope of the operation of the fiction beyond two months.
Nor can we agree with the learned Judges that the principle exmbodied in the legal maxim 'actus curiate neminem gravabit' can usefully and legistimately be invoked in the present case. That maxim recognises the quitable principle that an act of the Court shall not prejudice any man. It is founded upon justice and good sense and affords a safe and certain guide for the administration of law. The foundation for the application of the principle is that the court is under a duty to do a particular act and it has failed to do so which caused prejudcie to the other side. To apply that provision to the instant case, it must be established that the Court should make the preliminary order on the date of the petition filed under S. 145, Criminal P. C.
The provisions of S. 145, as we have indicated do not show that the proceedings under the section should be initiated only by a petition filed by the affected party. It may also be initiated 'suo motu' by the Magistrate. Nor is the date of the filing of the petition the basis for making a preliminary order under that section. It may be that, on the date when the application is filed, there is no breach of peace, but on enquiry and on the police report, a Magistrate may find a threat to the breach of peace on a subsequent date and under this section, is he is satisfied, he is bound tomake a preliminary order notwithstanding the fact that an earlier stage when he was moved, there was no likelihood of a breach of peace. The jurisdiction to make a final order does not depend on the manner in which the proceedings are initiated, out on the satisfaction of the Magistrate that a breach of peace was imminent on a particular date when he makes the preliminary order.
Further to apply the equitable principle, it would be necessary to ascertain the acts of a Court which prejudiced a party to apportion the blame between the Court and a party and to fix the period of delay attributable to the Court's act. In such an enquiry, it cannot be premised that in every case, the delay caused by the Court, if added would synchronise with the date of the application. It would be a futile enquiry. The said principle was invoked and applied to a case where a party has done all he should do under a statute and, by a mistake of court, he was precluded from completing the act, in which case it was held that the party must be deemed to have done the act on the date on which he had done his part. This is illustrated by the case where the party made a deposit, which is a condition for getting some order and he had done all he should do in the matter but was prevented from doing so by the mistake of an officer of the Court. See -- 'Gopalakrishna v. Kunjithapadham', AIR 1925 Mad 324 (D), -- 'But Ram v. Sasrdar Singh', AIr 1934 Lah 875 (E), -- 'Muthiah Chetty v. Suppan Serval', AIr 1915 Mad 8645 (F). In these cases, by mistake of the office the party couldnot complete the act within the time prescribed and the Courts applied the maxim and held that he must be deemed to have completed that act within the time. Those decisons have no bearing on the question to be decided. We cannot, therefore, with great respect, agree with the views expression by the learned Judge in the Madras decision.
(10) In -- 'Tolan Kalita v. Bhuban Chandra', AIR 1951 Assam 161 (G), the Assam High Court ook a different view. the learned Judge held that, on a strict construction of the section no order can be passed in favour of the party, who was dispossed even though forcibly and wrongfully but more than two months before the date of the order and that, if the delay is caused by the act of the Court, even then the express provision contained in Cl. (4) cannot be disregarded. At page 162, the learned Judges say that the inherent powers of the Court to do justice cannot be exercised of the express provisions contained in the Code. We respectfully agree with those observations.
(11) In -- 'Janama Bhoi v. Drupadi Bhoinani', : AIR1952Ori26 (H), Ray C. J., considered the aforesaid Madras decision and expressly dissented from it. the learned Judge held that the time limit provided for by the statute must always be respected. At page 27 the learned Judge observed:
'Keeping these considerations in view, the Legislature has fixed the maximum period, within which the party wrongfully dispossessed can get the benefit of the section at two months. For a court, for whatever reason and howsoever laudable in its object, it is not permitted to legislate by reading into the proviso and extending the period of two months to any period which, according to the Court lapse due to the negligence or the dilatoriness of the Magistrate.'
(11A) We respectuflly accept the view expressed by the learned Chief Justice. There are alsomany decisions of other Courts taking the same view. See -- 'Meharban Singh v. Bhola Singh', AIR 1935 All 35 (I), -- 'Emperor v. Parasram', AIR 1931 Nag 38 (J), -- 'Mahmomed ali v. Shamshul Haq', AIR 1940 Sind 33 (K), -- 'Emperor v. Baijnath', AIR 1929 Oudh 526 (L) and -- 'Arunachala Goundan v. Chinna Durai', AIr 1945 Mad 216 (M).
(12) It is not necessary to consider them in detai. We would, therefore, hold that the 'A' party, having been dispossessed beyond two moinths from the date of the preliminary order, is not entitled to have a declaration under S. 145(6), Criminal P. C.
(13) Further the Magistrate found in this case that the 'A' party respondent was not forcibly and wrongfully dispossessed on 7-2-1953 but the mediators, who intervened peacefully took possession to avoid conflict between the parties. If so done, if follows that the first proviso to subsection (4) of S. 145 cannot have any application to the facts of the case for the proviso can be invoked only in a case where any party to a dispute has been forcibly and wrongfully dispossessed within two months next before the date of the preliminary order. On the short ground also, the 'A' party respondent must fail.
(13A) But it is contended that the possession of the mediators is possession on behalf of the 'A' party and, therefore, the 'A' party msut be considered to have been in possession on the date when the preliminary order was made. But the mediators, who were examined, do not depose that they were holding the rectangular house on behalf of the 'A' party. Their possession on the facts found in this case, cannot be held to be possession on behalf of the 'A' party respondent. For the aforesaid reasons, we hold that, in regard to the rectangular house, the Order of the Magistrate is wrong.
(14) Now, coming to the round house, the finding of the Magistate was that the round house was in the physical possession of Subbamma on the date of the preliminary order and that she was permitted to occupy it by the 'A' party respondent. Subbamma claimed that the owner was B. W. 1 and that she was permitted to live in the house by B. W. 1. The question, therefore, is whether the 'A' party respondent who was not in actual possession of the round house, is entitled to have his alleged constructive possession declared under S. 145, Criminal P. C.
Under S. 145(1), the claims, in respect whereof a Magistrate is empowered to decide is the fact of actual possession of the subject of dispute. Sub-section (4) of S. 145, which defines the scope of the enquiry empowers the Magistrate to decide the said question without reference to the merits of the claims of the parties to a right to possess the subject to dispute. It is, therefore, clear that under the section the question of a right to possession is foreign to the scope of the enquiry. If so the difficult question on which various views have been expressed is what meaning do the words 'actual possession' convey.
The difficult in defining the words led to conflicting view. The section itself indicates that actual possession is different from a right to possession. The Dictionary meaning of the word 'actual' is real or existing in fact. The words, therefore, connote possession as a fact. The word possession has two meanings mediate and immediate possession. In Salmond's 'Jurisprudence' the distinction between the two categories of possession has been clearly brought out. The learned author says at page 300 that:
'The possession held by one man through another may be termed as mediate while that which is acquired or retained directly or personally may be distinguished as immediate or direct.'
(15) The learned author proceeds to divide mediate possession into three kinds: (1) possession acquired by a person through some one, who holds solely on his account and claims no interest of his own; (ii) direct possession held by one person both on account of another as well as on his own; and (iii) the case in which immediate possession is in a person who claims it for himself until sometimes has elapsed or some condition has been fulfilled but who acknwoledges the title of another for whom he holds the thing and to whom he is prepared to deliver it when his own temporary claim has come to an end. The case of a warehouseman illustrates the first category. The case of a borrower, hirer or a tenant at will is an example of the second. Lending a chattel to another for a fixed time, delivering it a s a pledge to be returned on the payment of a dbet, and leasing out the property for a fixed term are examples of the third. But, in all these cases, the owner continues to be in possession of the property. Whether it is immediate possession or mediate possession, the owner does not cease to be in possession of the property.
But by reason of the use of the word 'actual', it is necessary that the owner has not only a right to possession but he must, as a matter of fact, be in possession, whether directly or constructively. To illustrate, the landlord is in constructive possession of the holding in the occupation of his tenant. It is not enough that he has a right to possession but he must, as a matter of fact, be in perception of the rents as landlord. If the tenant denies his right, refuses to pay his rent and claims to attorn to another, whether the landlord has a right to possession or not, he ceases to have actual constructive possession. So too, if the owner permits another to be in possession, he may be said to be in possession through a licensee. But if the licensee denies the owner's title and claims to hold it under a third party, though the right to possession may continue to be in the real owner, he ceases to have actual possession of the property.
(16) A difficult question arise under S. 145, Criminal P. C. between different categories of disputants. There may be a dispute between two landlords, a landlord and his tenant, two tenants, two landlords holding through two different tenants and two landlords claiming to hold through a single tenant. Similar disputes may also arise between two parties when the property is in the possession of a licensee or any other person in similar capacity. In all these cases. If the aforesaid principles be borne in mind, there may not be any difficutly in giving a satisfactory answer to the question arising under s. 145, Criminal P. c. between the aforesaid different categories of persons. Whether it is mediate possession or immediate possession, if a person claiming to be in possession is in actual possession in the sense explained above, he is entilted to a declaration under S. 145.
(17) We shall now proceed to consider some of the cases cited at the Bar which throw some light on the question raised. In -- 'Karnadhar Ray v. Sailendra Nath Ghose', ILR (1948) 1 Cal 150 (N), it was held that where a tenant found to be in actual possession of the land in dispute denies that he is a tenant of the party claiming through him or is in possession on behalf of such party, it is the duty of the Court to declare the tenant and not the landlord to be in possession although such tenant might have originally obtained possession by virtue of settlement from him. This was so decided because the tenant, though he was inducted into possession at an earlier stage by the rival claimant, was not holding the property, as a matter of fact, as a tenant of the other party. The other party may have a right d to possession, but the factum of possession was with the tenant.
(18) In -- 'Sutherland v. Crowdy', 18 WR Cr 11 (O) , there is a lucid exposition of the meaning of the word 'possession'. At page 13, the learned Judges observed as follows:
'The question is what is to be considered as meant in this section by possession? I think that it cannot mean only actual or bodily possession. There may be cases in which a person would properly be said tobe in possession, although there was no bodily possession by him. There is a case of a sevant being in possession and it may be said that when the servant is in possession, It is the possession of the master, so also if an occupier is paying rent that is the possession of the landlord to whom he pays the rent. For some purposes, the occupier has a possession; he has a possession which would enable him to bring a suit against a person who wrongfully distubred him in his occupation; but, still, his possession is the possession of him by whose permission, either given by a lease or any other mode of letting he holds the land and to whom he pays the rent.'
(19) The aforesaid passage clearly brings out the distinction between right to possession and actual possession. It also indicates that actual possession need not be bodily possession, but can also include constructive possession if, as a matter of fact, the person is in possession through another.
(20) In -- 'S. M. Yacub v. T. N. Basu', AIR 1949 Pat 146 (SB) (P), the question arose whether a proceeding under the section can be initiated in respect of mineral rights, if there be a dispute as regards possession between contending parties leading to an apprehension of a breach of peace. In dealing with the question, Meredith J., considered the scope of the section at page 149 and expressed himself in the following terms:
'Sections 145 and 146 have been so worded as to emphasise that the Magistrate is to concern himself only to actual possession. He is expressly forbideen to refer to the merits of the claims to title and obviously, therefore, if he is not allowed to find the title, he cannot draw any inference as to possession from the title. The Legislature has taken the utmost pains to prevent questions of title from creeping in to confuse the Magistrate and protract the proceedings.'
(21) In -- 'Ranga Razu v. Srinivasa Jagannadha Rao', AIr 1938 Mad 654 (Q), Pandranga Rao J., explained the words 'actual possession' in S. 145 to mean physical possession in fact as distingusihed from possession implied by law or constructive possession. We find it difficult to accept the narrow meaning given by the learned Judge to the words 'actual possession'. s we have already stated, possession may include not only immediate but also mediate possession. But we agree with the learned Judge that the possession, whether mediate or immediate, must be actual possession in the sense that the party claiming possession should in fact be in possession whether direct or mediate.
(22) In -- 'Venugopal Mudaliar v. Neelakanta Mudaliar', AIR 1945 Mad 255 (R), Happel J., took a differnet view. He held that, as between rival landlords or between a landlord and a tenant, of another landlord, the ordinary rule that the tenants' actual possession is the landord's actual possession applies and there is ntohing illegal in the practice of giving a declaration in favour of such a landlord even though the tenants are not parties to the proceedings. We agree with the learned Judge that, when a landlord is in possession throug a tenant by perception of rent or without any dispute from him, there is no reason why his possession should be excluded from the operation of the provisions of the section. It is not necessary to multiply cases.
(23) On a consideration of the relevant provisions of a Criminal Procedure Code and the cases cited at the Bar, we are of the view that the words 'actual possession' in S. 145, Criminal P. c. exclude a right to possession but take in actual possession, whether mediate or immediate. Applying the aforesaid tests, what is the position in the instant case? Though B. W. 1 claimed that he permitted Subbamma to be in possession of the round house, the Magistrate found, as a matter of fact, that she was in physical possession on the crucial date and that she was as a matter of fact claiming under the 'A' party. If the dispute was between the 'A' party respondent and Subbamma who was in physical possession of the house, and denied the title of the former of the permissioin given by him, the Court has no alternative but to declare the possession of Subbamma . If so, would it make any difference if the 'B' party respondents claimed constructive possession of the house through subbamma who admitted their right? It may be than the 'A' party respondent may file a suit in a Civil Court and by establishing his title and, the fact that he permitted Subbamma to occupy, obtain a decree. But Subbamma on the crucial date, as a matter of fact, was in possession claiming under the 'B' party, the 'B' party's right shuld be declared.
(24) The order of the Magistrate declaring the 'A' party's possession is, therefore, wrong. The result is that the order of the Magistrate is liable tobe set aside & we accordingly do so. But, our order will not preclude the 'A' party from taking possession of the rectangular house, if the mediators willingly and voluntarily deliver it to him.
(24) Petition allowed.