1. Madholal filed a complaint under Section 145, Criminal P.C., before the Sub-Divisional Magistrate, Beawar. He alleged that he was in possession of 'nohra' No. 676 situated in Diggi Chunpachan, Beawar, and that at 3.30 p.m. on 1.2.1950, the date of the application, the two opposite parties entered the 'nohra' illegally and forcibly and were not leaving it despite requests and protests. The learned Magistrate forwarded the application for report to the Station Officer, Beawar. In they order he stated that the applicant told him that the opposite parties 'are breaking open the locks and damaging his property'. As directed, the Station Officer reported the next day and on the basis of that report the learned Magistrate took cognizance of the matter in the following words:
The S.O. Beawar, after enquiring reports that there is likelihood of a breach of the peace. Accordingly, I am convinced that a dispute likely to cause a breach of the peace exists concerning house (nohra) No. 676 in Diggi Chuncpachan, Beawar....
Notices were issued and alter taking into consideration the evidence led by the parties, the learned Sub-Divisional Magistrate by his order dated 25-6-1951 held that Madholal applicant was in possession of the disputed house prior to 1.2.1950 and 'declared him entitled to possession. The learned Sub-Divisional Magistrate further directed that Madholal be restored to possession and declared him entitled to such possession until eviction in due course of law.
2. Against that order, a revision was filed before the Additional District Magistrate. The learned Additional District Magistrate has made a reference to this Court recommending that the order of the learned Sub-Divisional Magistrate be set aside. In the reference I have heard the learned Counsel for Sm. Dakhan, the learned coun-sel for Madholal and the learned Public Prosecutor who has opposed the reference. No one has appeared on behalf of Sm. Ladi.
3. The first point pressed by the learned Counsel for Sm. Dakhan is that the order of the learned Magistrate passed under Section 145(1) of the Code of Criminal Procedure is defective and, as such, the final order of the learned Magistrate is not entitled to be maintained. The learned Counsel argues that the learned Magistrate did not as required by Section 145(1), Criminal P.C. state the grounds of his being satisfied as to the existence of a dispute likely to cause a breach of the peace. As mentioned above, the order merely states that the learned Magistrate was satisfied as to the existence of a dispute likely to occasion the breach of the peace, because the Station Officer, Beawar, after enquiring had reported to that effect. I have on this point been referred to - Mahomed Ishaqu v. Emperor AIR 1945 All 60 (A). The learned Counsel for Madholal, on the other hand, has referred to - Shankar v. Rex : AIR1950All274 , - Ambika Bakhsh Singh v. Bharosay : AIR1950All731 and - Narain Singh v. Mt. Suraj Kishore Devi : AIR1951All826 . I am of opinion that this is a mere irregularity which is curable under Section 537, Criminal P.C. if it has not occasioned a failure of justice. It is not denied that no objection was taken on this score when the proceedings were pending before the learned Magistrate. The learned Counsel for Sm. Dakhan has not pointed out how this irregularity had occasioned a failure of justice. I am, therefore, of opinion that the defect is not fatal.
4. The learned Counsel for Sm. Dakhan further argued that in the present case there was no likelihood of a breach of the peace unless the applicant Madholal went to the house. The learned Counsel has referred to paragraph 4 of the application which states that the likelihood of a breach or the peace existed in case the applicant asserted his right to remove the opposite parties from The 'nohra' in question. The learned Counsel has relied on - Manama Bhoi v. Draupadi Bhoini : AIR1952Ori26 . I am unable to agree with the learned Counsel. There would certainly be no dispute if one of the parties acquiesces in the possession, wrongful or otherwise of the opposite party and takes recourse to proceedings in a court of law. An apprehension of a breach of the peace arises only when both the parties start asserting their right of possession physically. The report of the Station Officer clearly shows that there was litigation between the parties and both of them wanted to take actual possession. In these circumstances. I am of opinion that the conclusion that an apprehension of a breach of the peace existed, was rightly arrived at.
5. The next point urged by the learned Counsel is that the learned Magistrate found that on the date of his preliminary order, that is, on 3.2.1959 Sm. Daithan was actually in possession and, as such, the learned Magistrate was not entitled to direct delivery of possession to Madholal unless he held that Madholal had been dispossessed within two months of his preliminary order and that Madholal had been forcibly and wrongfully dispossessed. The learned Counsel points out that us the learned Magistrate did not come to the finding that Madholal had been forcibly and wrongfully dispossessed he was not entitled to treat Madholal as being in possession in terms of the first proviso to Section 145(4) of the Code of Criminal Procedure.
6. The learned Counsel has argued that the Magistrate is not bound to act in terms of the proviso. I agree that it is discretionary for the Magistrate to find out if the applicant had been forcibly and wrongfully dispossessed within two months next before his preliminary order and to treat the persons so dispossessed as being in possession on the date of his order.
7. The learned Counsel has further argued that in the absence of a specific finding as to the nature of the dispossession, the learned Magistrate was not entitled to pass an order of delivery of possession to Madholal. The learned Counsel has relied on - Ram Naresh v. Emperor AIR 1949 All 97 (P). I am of opinion that this ruling will not help the learned Counsel. The facts are entirely different. In the case relied upon action was taken under Section 146 and there was no finding that the applicant had been dispossessed. The only finding was that the opposite parties had taken forcible possession.
8. The learned Counsel has next urged that in order that dispossession should be forcible, force should have been applied to the persons in possession. The learned Counsel has referred me to - Balavenkatarama v. Marutha Muthu AIR 1943 Mad 247 (G), - Jamuna Das v. Emperor AIR 1945 All 26 (H) and - Bhani v. Narayan Singh AIR 1940 Lah 84 (I) and - Narain Singh v. Pannalal AIR 1940 Lah 460 (J). All these rulings relate to Section 522, Criminal P.C. and not to Section 145, Criminal P.C. The learned Counsel for Madholal has referred me to - Sita Nath v. A. Harvey 22 Cri. 1 Journal 637 (Cal) (K) and - Amritlal N. Shah v. Nageswar Rao AIR 1947 Mad 133 (L). In the first ruling it was held:
It is not necessary that actual force or violence should have been used to some person or persons before a dispossession can be said to be 'forcible'. When the dispossession is effected by a show of criminal force sufficient to intimidate those in possession and to deter them from resistance, the latter are said to have been forcibly dispossessed.
In the present case there is evidence of Madholal that Sm. Dakhan raised her hand to beat him. Tlie other witnesses have stated that the two ladies abused Madholal. The result in any case was that Madholal left for the Thana and then in his absence the lock of the room was broken. The quarrelsome attitude of the ladies appears to have frightened Madholal. In these circumstances, I am of opinion that there is sufficient evidence to hold that Madholal was forcibly dispossessed.
9. But that is not really the question before me. The question is whether in the absence of a specific finding by the learned Magistrate that. Madholal had been forcibly and wrongfully dispossessed the order has to be set aside. It has not been shown to me that the order is manifestly unjust. It is true that the learned Magistrate did not mention the question of forcible and wrongful dispossession among the points for his determination. On the other hand, it cannot be denied that the learned Magistrate could not have taken action under the proviso unless he came to the conclusion that Madholal had been forcibly and wrongfully dispossessed. As stated above, there is some evidence to indicate that Madholal had been forcibly and wrongfully dispossessed, I am, therefore, of opinion that the order of the learned Magistrate is substantially correct as Madholal had been forcibly and wrongfully dispossessed.
10. The learned Counsel has also urged that the learned Magistrate did not even believe the statement that Madholal had been actually dispossessed. The learned Counsel refers to the following portions of the order:.as the application under Section 145 Cr.P.C. was filed by Madholal on 1.2.1950, the very day when the alleged occurrence of dispossession had taken place.
The learned Counsel emphasizes the words 'alleged occurrence of dispossession'. The contention of the learned Counsel is that the learned Magistrate came to the conclusion that no dispossession had taken place. I am unable to agree with the learned Counsel. The learned Magistrate definitely held that prior to 1.2.1950 Madholal was in possession and that Sm. Dakhan was in possession of the house from 1.2.1950 to 3.2.1950. It was nobody's case that possession had lawfully passed from Madholal to Sm. Dakhan. Change of possession could, therefore take place only by dispossession. I am, therefore, unable to conclude that the use of the word 'alleged' before the phrase 'occurrence of dispossession' means that the learned Magistrate held that Madholal had not been dispossessed at all.
11. No other point has been pressed before me.
12. Accordingly, I am of opinion that the order of the learned Magistrate was substantially correct. I, therefore, reject this reference.