1. This rule has been obtained by a defendant, (defendant 3) in a suit instituted under Section 9, Specific Relief Act. The points for consideration are (1) Whether the plaintiffs have at all been dispossessed, and (2) if dispossessed whether the dispossession was otherwise than in due course of law. The subject-matter of the suit is a narrow and long strip of land. It was with other lands, the subject-matter of a suit for partition between the plaintiffs and defendant 1 and others. Defendant 3 was not made a party in the partition suit. The partition suit ended in a decree some time in the year 1931. The plot in suit was given to the plaintiffs. On 9th April 1932 the plaintiffs took possession in 'execution of the decree for partition.
2. The defendants started proceedings under Section 147, Criminal P.C., on 3rd February 1932, their case being that they had a right of way over the lands in suit and the plaintiffs were attempting to obstruct the pathway. At the date when this proceeding was started there were no obstructions but during the pendency of the proceedings the plaintiffs fenced the lands. This was on 9th April 1932. The proceedings under Section 147, Criminal P.C., terminated in favour of the defendants. The order was in terms of Section 147(2), that is, the plaintiffs were prohibited from interfering with exercise of the right of the defendants to use the land as a pathway. No mandatory order for removal of the fence was passed, as it could not be passed under that section: Hari Mati Dassi v. Hari Dassi Dassi, 1925 Cal 991 and Tarini Mohan De v. Dwarka Nath Banikya, 1934 Cal 556. On 7th December 1932 the defendants removed the fencing and began to exercise their right of way. On 9th January 1933 the suit under Section 9, Specific Relief Act, was filed.
3. Dr. Mukherjee, who appears for the opposite parties, seeks to support the order by stating that any substantial interference with enjoyment of immovable property amounts to dispossession within the meaning of Section 9, Specific Relief Act and when the defendants took the law in their own hands and demolished the fencing the dispossession is one 'otherwise than in due course of law.' He contends that the words otherwise than in due course of law' are not synonymous with the word 'illegally' and there he is right. The phrase means: 'In the regular, normal process and effect of the law operating on a matter which has been laid before a Court, civil or criminal, for adjudication.
4. It would ordinarily exclude self-help. But the question in this case is whether the defendants who had removed the fencing, put up during the pendency of the proceedings under Section 147, after an order had been passed in their favour in terms of Section 147(2), had acted otherwise than in due course of law. Assuming that the act of passing over the lands is dispossession, I think that the acts done by the defendants are acts done 'in due course of law.' There has been an adjudication by the criminal Court in their favour. If the fencing fell down and the defendants passed over the lands no new fencing could have been put up by the plaintiffs till they had obtained an adjudication in their favour in a regular suit. If the defendants climbed over the fencing and passed over the lands, they could not be obstructed. Any attempt to obstruct them would have been punishable under Section 188, I.P.C. There is therefore an effective sanction provided for in favour of the, defendants. The case before me is governed by the principles formulated in the case Leo Moore v. Monoranjan Guha (1908) 7 CLJ 547 which case is indistinguishable, though the matter under consideration there was a proceeding not under Section 147 but under Section 145, Criminal P.C.
5. In that case the proceeding under 8. 145 was started before Sub-section 6, Section 145, Criminal P.C., was amended by giving the Court power to restore possession when a party affected by the order had taken possession within two months of the date of the initiation of the proceedings. The plaintiff in the suit under Section 9, Specific Relief Act, was in possession from the 3rd to 26th October 1906 when he was dispossessed by the defendant. On a date between 3rd and 10th November 1906 the order under Section 145(1), Criminal P.C., was made. On 2nd February 1907 the Magistrate recorded the final order in favour of the defendant. The defendant entered into actual possession on 13th February 1907. There was an attachment under Section 145(4) but Stephen, J., assuming that the plaintiff was in possession up to 13th February 1907, held that the act of the defendants taking possession on 13th February 1907 was an act done in due course of law, although there was no order of the Magistrate directing possession to be delivered to the defendant and no order for restoration to possession could be made by him on the law as it then stood. I accordingly hold that the plaintiffs suit under Section 9, Specific Relief Act, was not entertainable. I do further hold that the act of the defendants in passing over the lands does not amount to dispossession within the meaning of Section 9, Specific Relief Act. The plaintiffs have not been turned out and they can use the land in any beneficial way they like provided they do not interfere with the reasonable use of the same by the defendants as a pathway. The plaintiffs have misconceived their remedy and if they have felt aggrieved by the order passed by the Magistrate under Section 147(2), Criminal P.C., their relief lies in instituting a regular suit. The rule is accordingly made absolute. Costs one gold mohur.