1. We adjourned this matter for settlement between the parties but unfortunately they have been unable to come to terms; and it is incumbent on us, therefore, to decide whether the Rule should be made absolute or discharged. After hearing the parties at length we are of opinion that the Rule should be discharged.
2. The important dates have been given to us by the learned Pleader who showed cause; but we do not think it necessary to set them out in full in this judgment. The Rule was granted on four grounds, Nos. 2, 3, 4 and 7 in the petition mentioned The first ground related to the addition of the 4th party Satkari Das on 7th February 1916. The proceedings had commenced on 8th June 1915, but in consequence of the petition of compromise between the 1st and 2nd parties and the subsequent applications to this Court, matters were delayed and nothing had been done towards holding the enquiry. On 7th February 1916, the 4th party Satkari Das applied to be made a party, alleging that he had all along been in possession of this land under a lease from Ganga Giri, dated September 1911. He was accordingly made a party and the proceedings went on.
3. It is argued for the petitioners, 1st and 2nd parties, that the Sub-Divisional Officer had no jurisdiction so to add Satkari Das without drawing up fresh proceedings. This matter appears to be decided by the Full Bench case of Krishna Kamini v. Abdul Jubbar 30 C. 155 : 6 C.W.N. 737(F.B.). There it was held that a party might be so added, provided he was concerned originally in the dispute which was the foundation of the proceeding. If that was so, there would be no necessity for a fresh proceeding. It was further held that if a party were added before the en miry began there would be no irregularity. In this case, the enquiry did not commence until 4th March when the first witness was examined. It was argued that Satkari Das was not concerned in the dispute which was the foundation of the proceedings. It is true that he was absent from Calcutta at that time and, therefore, was not likely to be actually involved in the breach of the peace which was then apprehended; but that he was concerned in the dispute as to possession there can be no doubt. If he had been here and the matter had been brought to his notice, there can be no doubt whatever that he would have applied then and there to be made a party; and, if he had not so applied, he would still have been made a party had the Magistrate known of his alleged interest in the land. He claimed to be actually in possession. He must, therefore, be taken to have been concerned in the dispute.
4. Then, it was argued that there was no further apprehension of a breach of the peace, this being the subject of ground No. 3. As to that, we have the explicit finding by the Magistrate that in consequence of certain things having taken place he thought that there was still a likelihood of a breach of the peace even at the date of his order, 22nd March 1916. This is a matter eminently for the exercise of the Magistrate's discretion and we should be sorry to interfere with it.
5. The last ground was that the Magistrate had no jurisdiction to pass the order on the basis of wrongful and forcible dispossession within the meaning of Section 145(4)(1). As to that it appears that on 12th April 1915, within two months from, the commencement of the proceeding, the first party obtained sanction from the Municipality and proceeded to dig a tank on the land in dispute to the exclusion of the 4th party, who was then found to be in possession. It is argued that that is not a wrongful and forcible dispossession. It was admitted that it might be wrongful but would not be forcible. We think that it comes within the meaning of the word forcible' used in its ordinary significance, though possibly not within the meaning of 'criminal force' as defined by the Indian Penal Code.
6. We accordingly discharge the Rule.