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Aher Mesa Hamir Vs. Charan Shamla Sura - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1973)14GLR812
AppellantAher Mesa Hamir
RespondentCharan Shamla Sura
Cases ReferredNata Padhan v. Banchha Baral
Excerpt:
.....magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims. if, therefore, the unsuccessful party is forbidden from disturbing the actual possession of the successful party under sub-section (6), it is difficult to understand how that party can file a suit for injunction merely against the successful party and obtain an ad-interim injunction. therefore, in a case where actual possession of a party has been declared by an order under section 145 of the code, the unsuccessful party must accept that order. this possession having been protected..........magistrate by his order dated september 25, 1970 declared that the petitioner (defendant) was in actual possession of the land in dispute on june 22, 1970. the learned magistrate also declared that the petitioner was entitled to possession thereof until evicted in due course of law. the opposite-party i. e. present plaintiff was forbidden by that order from interfering with petitioner's possession of this land and from entering that field, i am told by mr. vyas for the opposite-party at the bar that against this order, the opposite-party went in revision to the district magistrate and that revisional application came to be dismissed on july 27, 1971. meanwhile, however, on october 10, 1970, that is, after the passing of the aforesaid order by the learned magistrate, the suit from which.....
Judgment:

D.P. Desai, J.

1. This matter arises out of an order passed on an interlocutory application for an ad-interim injunction under order 39 of the Code of Civil Procedure in a suit filed by the opposite party for a declaration that the plaintiff is the owner and a person in possession of a field Survey No. 38, for confirmation of his possession of that field and for a permanent injunction restraining the defendant (present petitioner) from interfering with plaintiff's lawful possession of the suit field. This very field was the subject matter of a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), wherein the learned Magistrate by his order dated September 25, 1970 declared that the petitioner (defendant) was in actual possession of the land in dispute on June 22, 1970. The learned Magistrate also declared that the petitioner was entitled to possession thereof until evicted in due course of law. The opposite-party i. e. present plaintiff was forbidden by that order from interfering with petitioner's possession of this land and from entering that field, I am told by Mr. Vyas for the opposite-party at the Bar that against this order, the opposite-party went in revision to the District Magistrate and that revisional application came to be dismissed on July 27, 1971. Meanwhile, however, on October 10, 1970, that is, after the passing of the aforesaid order by the learned Magistrate, the suit from which present revisional application has arisen was commenced by the opposite-party. Having brought the suit praying for a relief of permanent injunction, the opposite-party applied for an ad-interim injunction under Order 39 of the Code of Civil Procedure; and the trial Court granted the same after hearing the petitioner. The lower appellate Court confirmed this order. Against that order, the petitioner has come in revision to this Court.

2. The point canvassed in this revision application is that both the Courts below acted with material irregularity in exercise of their jurisdiction, inasmuch as they granted the temporary injunction against the petitioner so as to nullify the effect of an injunction granted by the Magistrate under Section 145 of the Code against the opposite-party. It has been pointed out that the effect of the injunction granted by the trial Court in the present case was to bring into existence cross-injunctions against both the sides to this litigation. It was also contended that the injunction order is in contavention of the provisions of Sub-section (6) of Section 145 of the Code, because the present petitioner has not yet been evicted from the field in question. According to the petitioner, so long as he has not been evicted in due course of law, he is entitled to continue in possession under the order passed by the Magistrate under Section 145 of the Code. The relevant provisions of Section 145 may be reproduced:

145 (1) Whenever a Chief Presidency Magistrate, District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or of the boundaries 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 concerned in such dispute to attend his Court in person or by pleader, within a time 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 and further requiring them to put in such documents, or to adduce by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims.

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(4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question 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 the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein:

Provided further 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:

Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.

(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final.

(6) If the Magistrate decides that one of the parties was or should under the second ' 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 for bidding all disturbance of such possession until such eviction and when he proceeds under the second proviso to Sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.

(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purpose of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.

(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

The scheme of this section may be examined apart from any authority in the first instance. The primary object of the provision is to prevent breach of peace arising out of disputes relating to possession of the immoveable properties specified therein. As the breach of peace is likely to arise out of this dispute with regard to possession, it becomes necessary to determine, if possible, which of the disputing parties was, at the date of the order mentioned in Section 145(1), in possession of the disputed property. This determination is to be made without reference to the merits or the claims of any of the disputing parties to a right to possess the subject of this dispute. Thus, the question of right or title to possession does not form part of the enquiry under this provision. If it is possible for the Magistrate proceeding under Section 145 to decide that dispute relating to question of possession of the land in question, a duty is cast on the Magistrate under Sub-section (6) of Section 145 to issue the necessary order in order to prevent breach of peace. The effect of this order is to protect the actual possession of a party found to be in possession on the date of the order under Section 145(1); and thereby to obviate possibility of breach of peace. If there has been forcible and wrongful dispossession of a party within a period of two months before the date of the order under Section 145(1), the possession of the party dispossessed is treated in law as the actual possession on the date of the order under Section 145(1). The Magistrate is further empowered in such a case to restore possession to the party dispossessed. This provision will also show that the scheme of the section is not only to protect actual possession of a party on the date of making of an order under Section 145(1), but also to protect the actual possession of a party within two months of that order, if that party is ousted from possession forcibly and wrongfully. It is evident that mere determination of actual possession would not by itself tend to mitigate the apprehension of breach of peace unless followed up by an effective order protecting that possession. Therefore, Sub-section (6) contemplates a declaration consequent on the finding about actual possession by the Magistrate that the party found in actual possession is 'to be entitled' to possession thereof until evicted therefrom in due course of law. The Legislature did not consider this also to be quite sufficient and therefore, a further provision was made under which the Magistrate can forbid the party against whom such a declaration is made from disturbing the aforesaid actual possession till eviction of the party declared to be in possession in due course of law. When these steps are taken, it is clear that the unsuccessful party in this enquiry has to accept the finding as to the actual possession given by the Magistrate and if he had a better right to possession or a better title, the only remedy is to sue, the successful party in a Court of law for possession. It is only by suing for possession that the party whose possession is protected under Section 145 can be evicted from it. That will be eviction in due course of law contemplated by this section. It is clear that the apprehension of breach of peace would come to an end after an effective order under Sub-section (6) has been made coupled with the injunction (so to say) contemplated by that provision. If, therefore, the unsuccessful party is forbidden from disturbing the actual possession of the successful party under Sub-section (6), it is difficult to understand how that party can file a suit for injunction merely against the successful party and obtain an ad-interim injunction. That would amount to issue of cross-injunctions against both the parties with the result that no party would be enabled to enter the land. With that position as regards uncertainty of possession of land on account of two cross-injunctions, the possibility of breach of peace which was apprehended and in order to prevent which Section 145 was enacted, would raise its head again. Therefore, if the order passed by the Magistrate under Section 145(6) is to be made effective, it should, of necessity, be held that the remedy of the successful party is to sue the successful party whose possession had been declared and protected, for eviction. Therefore, in a case where actual possession of a party has been declared by an order under Section 145 of the Code, the unsuccessful party must accept that order. That is to say, it must accept that on the date of the order under Section 145(1) the successful party was in actual possession of the land. This possession having been protected under the terms of Section 145 by virtue of the order passed under Sub-section (6), is lawful possession and therefore, the unsuccessful party must file a suit for possession basing it on a superior right to possession or superior title, as the case may be. The scheme, to my mind, is quite clear and in the context of this provision and the order obtained in the present case from the Magistrate by the petitioner who was successful party, no temporary injunction could have issued against him. In a case of this type, it can be said that the Courts below have acted with material irregularity in the exercise of their jurisdiction.

3. We have already seen that the object of the section is to prevent breach of peace and with that view to protect the actual possession of a party on the date of the order. As the Magistrate does not enter into an enquiry as to the title or right to such possession, the protection of that possession would be by virtue of an order made under Sub-section (6) of Section 145 irrespective of the question of title or right to such possession. This provision, in my opinion, confers a statutory right on a person found and declared to be in actual possession on the date of the order under Section 145(1) to continue that possession till he is evicted in due course of law. Both the Courts below have ignored this statutory right of the defendant. That right comes to an end only on passing of a decree or order for eviction in due course of law. So long as that right exists, no injunction could issue against the successful party.

4. Mr. Vyas for the opposite party, in the course of his submissions, expressed an apprehension that in such a case, even if the party with superior title files a suit earlier, the opposite party may well have recourse to the provisions of Section 145 and may obtain an order in its favour, from the Magistrate with the result that the party having better title who had sued for injunction will be non-suited unless it amends the plaint. This apprehension is more imaginary than real. The party which has filed the suit first can appear before the Magistrate and bring to his notice the fact that the Civil Court has been investigating the questions as to title, and right to possession of the property in question. It can also say to the Magistrate that a temporary injunction has been issued by the Court against the opposite party and request the Magistrate to stay the proceedings.

5. We may now come to the decided cases bearing upon this question. In Brojendra Kumar v. Jitendra Chandra, A.I.R. 1960, Assam 111, a Special Bench of the Assam High Court had occasion to deal with the issue of a temporary injunction under order 39 of the Code of Civil Procedure in the context of an order made by the Magistrate under Section 145 of the Code, falling in the second proviso to Sub-section (4) thereof, which reads: 'Provided further 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 : 'In that case the plaintiff was found to have dispossessed defendants Nos. 1 and 4 forcibly and wrongfully within two months before the date of the order under Section 145(1). The learned Magistrate having come to this finding, did not restore possession to defendants Nos. 1 and 4 as contemplated by the latter part of Sub-section (6) but merely declared the possession of defendants Nos. 1 and 4. The result was that plaintiff continued in actual possession inspite of this declaration and he filed the suit basing it upon that possession and claimed a temporary injunction. This was an exceptional case in which the party wrongfully and forcibly dispossessed i.e. defendants Nos. 1 and 4 in that suit, was not restored to possession. Therefore, the Assam High Court held that the temporary injunction could issue under Order 39, observing as under at page 114:

The mere order of the Magistrate under Section 145, Criminal Procedure Code, 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 out for the exercise of its discretion under Order 39 of the Civil Procedure Code.

However, with regard to a person who is found and declared to be in actual possession, Sinha, C.J. speaking for the Special Bench, observed at page 114 as under:.while I concede that where an order under Section 145 has been passed to the effect that the defendant to the suit was found in actual physical possession of the land, the question of granting injunction restraining the defendant from interfering with the possession of the plaintiff would not arise. It is only in cases where an order is passed under Section 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.

The learned Judge also observed at the bottom of page 115 as under:

I should like to make it clear that if the Magistrate under Section 145, Cr. P. C., 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-section (4), and later puts that party in possession under Sub-section (6), there could be no question of passing an order of injunction under Order 39 in a suit brought by the unsuccessful party.' Therefore, the Special Bench of Assam High Court agreed with the proposition that no question of granting injunction under Order 39 will arise in a suit brought by an unsuccessful party against a successful party who had been found to be in actual possession of the land in dispute.

6. Allahabad High Court in Lachhimi Nath v. Bholanath : AIR1964All383 also expressed the view that a mere suit for declaration and injunction was not maintainable in a case where an order had been passed in the proceedings under Section 145 of the Criminal Procedure Code delivering possession of the property to the defendants. It was further observed that in such a case the finding of the criminal Court that the defendants were in possession has to be accepted. The High Court further observed: 'Mere allegation in the plaint that the plaintiff was in possession of the property on the date of the suit or that the order under Section 145, Cr. P. Code was wrong could not entitle the plaintiff to claim a mere relief of declaration and injunction. He should claim a relief for possession,' The Allahabad High Court in making the aforesaid observations followed the decision of Lahore High Court reported as Sewa Das v. Ram Prakash A.I.R. 1947, Lahore, 173. The Lahore High Court said in connection with Section 145 of the Code: 'The section in the Code of Criminal Procedure was enacted with the object of ascertaining who was in possession of the property either on the date on which the breach was likely to occur or within two months of that date; and when a finding is given, it cannot be ignored.'

7. It is worthy of note that Article 47 of the Indian Limitation Act, 1908 contemplated a suit of the nature as described by it in the following words:

47. By any person bound by an order respecting the possession of immovable property made under the Code of Criminal Procedure, 1898 (V of 1898) or the Mamlatdars' Courts Act, 1906 (Bom. II of 1906), or by any one claiming under such person, to recover the property comprised in such order.

This Article also contemplated a suit for possession to recover the property comprised in an order inter alia passed under Section 145 the Code of Criminal Procedure. Of course, an article in similar terms is not to be found in the new Limitation Act of 1963, but then, from the statement of objects and reasons, we find that the contemplation of the draftsmen of the Act was to leave Article 47 to be covered by Article 65 of the new Limitation Act as recommended by the Law Commission. Article 65 also relates to a suit for possession of immovable property based on title.

8. Mr. Vyas for the opposite party relied upon a decision in Nata Padhan v. Banchha Baral : AIR1968Ori36 . There is nothing in that decision which helps Mr. Vyas. In that decision, the plaintiffs had succeeded in obtaining an order under Section 145 protecting their possession and thereafter they had filed the suit for declaration of their rights of tenancy and confirmation of possession. It appears from the facts of that case that under the Orissa Tenants Protection Act, it was necessary for a person claiming a right of a bhag tenant, to show that he was in possession of the disputed land on 1-9-1947. This claim was made by defendants Nos. 1 to 3 of that suit by filing an application under the aforesaid Act on 14-4-1950. During the pendency of that application, their landlord Gopal Satapathy executed a registered sale-deed in favour of defendant No. 4. The said defendant in his turn executed a lease (Patta) inducting the plaintiffs as bhag tenants for cultivating the disputed lands. Then a proceeding under Section 145, Cr. P. Code started. All this was done during the pendency of the application of defendants Nos. 1 to 3 under the Orissa Tenants Protection Act given on 14-4-1950. The tenants succeeded under that Act in the appellate Court; and the result of that order of the appellate Court would be that they were entitled to the status of bhag tenements under the aforesaid Act. It was after the decision of the appellate Court under that Act that the Magistrate passed final order in the proceedings under Section 145 of the Criminal Procedure Code declaring the plaintiffs to be in possession. Evidently, therefore, the question of conflict between the order passed by the proper authority under the Tenancy Act and the order passed by the Magistrate under Section 145 arose. In this context of facts, the observations which Mr. Vyas, relied were made. These observations which are to be found in paragraph 15 at page 41 are:

A final order under Section 145 Cr.P.C, does not give rise to a presumption in a Civil Court in favour of the successful party and it is open to the Civil Court on materials placed before it to ease (come ?) to a contrary conclusion.

The contrary conclusion contemplated thereby would be the conclusion as regards the title to remain in possession as bhag tenant. Evidently, these observations which were made in the context of the facts of that case, are not applicable to the present case. There, the order under Section 145 was made during the pendency of the tenancy proceedings. It may be noted that the relevant date for the purpose of claiming status as bhag tenant under the Orissa Tenants Protection Act was 1-9-1947 as appears from the judgment of the Orissa High Court; and the preliminary order under Section 145 of the Code was passed on 6-1-1951. Therefore, question of possession prior to that date was quite open even under the view that I am taking. What is protected by Section 145 is actual possession from the date of the order under Section 145(1) and even if that order is wrong, the remedy of the aggrieved party is either to get it cancelled by way of revision or to file a suit for evicting the person declared to be in actual possession.

9. Mr. Vyas also submitted that a revisional application against the order passed by the Magistrate under Section 145 of the Code in the present case was pending when the present suit was filed. Therefore, runs the argument, the order passed by the Magistrate had not become final. It is urged that in such a situation, it would be open to the Civil Court to grant temporary injunction. It is not possible to agree with this contention. The unsuccessful party, while filing a suit for eviction cannot arrogate to itself possession of the land in question contrary to the order passed under Section 145 of the Code and sue for injunction merely on the ground that a revisional application against the order has been preferred by it prior to the filing of the suit, and the same is pending. That revisional application, as admitted by Mr. Vyas, came to be rejected ultimately. To accept the contention of Mr. Vyas, would be to set at naught the effect of the order under Section 145(6) of the Code passed by a Magistrate, because in such a case, the unsuccessful party would 'prefer a revision application against that order and then file a suit for injunction alleging its possession contrary to the order passed by the Magistrate. In my opinion, to take any other view of the provision of Section 145 would result in cross-injunctions granted by two competent authorities. Such a state of affairs should be avoided; and the interpretation which seeks to avoid such state of affairs must commend itself to a Court of law. It is, therefore, clear that the suit as framed by the plaintiff without claiming the relief of possession is misconceived and that in the face of the order under Section 145(6) in favour of the petitioner-defendant, no temporary injunction should have been granted by the Civil Court.

10. In the result, the application succeeds.

11. The order of temporary injunction passed by the trial Court and confirmed in appeal by the appellate Court, is set aside; and the temporary injunction will stand vacated. Looking to the question of interpretation of Section 145 involved in this case, it is directed that each party will bear its own costs throughout. Rule made absolute in these terms.


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