ORDER
S.K. Dubey, J.
1. This is a petition to revise the order dated 8-6-1990 of the First Additional Sessions Judge, Shivpuri, passed in Cr. Revision No. 13 of 1987, preferred against the order dated 22-10-1986 passed in Case No. 62/84 x 145, by the Sub-Divisional Magistrate, Shivpuri.
2. The petitioner is a tenant of respondent No. 2. Initially, he was occupying three rooms on second floor on monthly rent of Rs. 110/- and was residing therein with members of the family. The landlady, on the pretext of the marriage of her son, asked the petitioner- to shift temporarily in two rooms with a kitchen and a bath room on the second floor on the assurance that after the marriage of her son, possession of the tenanted accommodation which was initially let to him will be given to him. But, for one reason or the other, the marriage could not be solemnized in the year 1983 which ultimately was fixed on 27-2-1984. The landlady again approached the petitioner with a demand that out of two rooms, for the time being, for accommodating her relatives, one room be given to her on the assurance that the room will be given back to the petitioner immediately after the marriage: On this representation and assurance, on 23-2-1984, the petitioner shifted all his members of the family in one room and gave one room to the respondent No. 2. After the marriage was over and the guests of the respondent No. 2 having left, the petitioner requested the second party on 28-2-1984 to give back the room as it was not possible for seven members of the family to live in one room. The respondent No. 2 refused to give the possession and locked the room in which household articles of the petitioner were also lying. Petitioner, feeling helpless, served a notice on 8-3-1984 and tried to take possession, but, the respondent No. 2 with other persons resisted as there was likelihood of breach of peace, the petitioner made a complaint to the Collector on 9-3- 1984 and then filed an application on 22-3-1984 under Section 145, Criminal Procedure Code with an application under Section 146, Criminal Procedure Code. The S.D.M., on being satisfied, passed a preliminary order under Section 145(1), Criminal Procedure Code and ordered issue of notices to the parties concerned to appear on the date and time fixed and to put in written statement of their claim as respects of fact of actual possession of the subject of dispute. The SDM, after making an order under sub-section (1) of Section 145, Criminal Procedure Code and considering the case to be one of emergency, attached the subject of dispute. In response to the notice, the respondent No. 2 appeared and filed her statement of claim with documents and took a stand that as the petitioner was not in a position to pay the rent of Rs. 100/- of two rooms to which he shifted, handed over possession of one room and started paying rent of Rs. 60/- per month. The SDM, after appreciating the claim, affidavit and evidence adduced by the parties, held that the story of inability to pay rent by the petitioner is concocted, the respondent No. 2 having taken possession wrongfully on the representation that the possession will be given after the marriage as the room was required to accommodate the guests, did not hand over the possession. As the petitioner was in possession of the room till 23-2-1984, who was forcibly and wrongfully dispossessed within two months next before the filing of the application under Section 146, Criminal Procedure Code, treated the petitioner as in possession on the date of the order made under sub-section (1) of Section 145, Criminal Procedure Code and directed the police to put the petitioner in possession of subject of dispute. The petitioner, after this order, was put in possession.
3. The respondent No. 2 preferred a revision. The learned Additional Sessions Judge allowed the revision holding that the provisions of Section 145, Criminal Procedure Code are not attracted in the present facts of the case, as the petitioner was not forcibly dispossessed. On the other hand, the petitioner gave possession of the room at his own accord. Therefore, the order of restoration of the possession, passed by the SDM is without jurisdiction as the proceedings under Section 145, Criminal Procedure Code were not maintainable. It is this order, which has been challenged by the petitioner in this revision.
4. Shri B. L. Bhargava, Counsel. for the petitioner and Shri K. K. Lahoti, Counsel for the respondent No. 2 were heard.
5. The precise question for determination before this Court is whether taking of possession of subject of dispute by misrepresentation constitutes forcible and wrongful dispossession. To deal with this question, it would be appropriate to extract the relevant provisions of Section 145 which read as follows :
'145. Procedure where dispute concerning land or water is likely to cause breach of peace.- (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local 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, on a specified date and time, and to put in written statements of their respective claims as respect the fact of actual possession of the subject of dispute.
*** *** ***(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, 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 made by him under sub-section (1), in possession of the subject of dispute :
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).'*** *** ***
The words 'forcibly and wrongfully dispossessed', used in the proviso to sub-section (4) of Section 145, cover the cases where a person is dispossessed otherwise than in due course of law and would include the case of a rightful owner entitled to possession taking possession otherwise than peacefully. True, forcible dispossession means such dispossession which involves an element of the use of force and power. The word 'wrongful' means : an act which is not legal, nor right, is unjustified 'and unfit. It also means deprivation of some right and to do injustice to the aggrieved. In Corpus Juris Secundum, Vol. 101, P. 643, column 1, the word 'wrongfully' is defined as :
'The word 'Wrongfully' is not a term of art in the law; but it does have an accurate meaning well known to the law; and it also has a popular and less precise signification. It is given many interpretations and meanings according to the context.
'Wrongfully' is variously defined as meaning illegally, or without right; in a wrong manner; unjustly; in a manner contrary to the moral law or to justice; injuriously, in violation of right, or tortiously, negligently; unlawfully; or without authority of law'.
6. Black's Law Dictionary, Fifth Edition, on p. 1446, Col. 1, defines the term 'wrongful' as : 'Injurious, heedless, unjust, reckless, unfair, infringement of some right'. Mathes v. Willims, Tex Civ. App. 134 S. W. 2d 853, 858. See 'Tort'. In Col. 2, the word 'wrongfully' is defined as 'In a wrong manner, unjustly, in a manner contrary to the moral law, or to justice'
7. A Division Bench of Calcutta High Court in the case of Sitanath Shah Bhowmic v. Harvey, AIR 1921 Cal 553, while dealing with a case of dispossession under Section 145, Criminal Procedure Code, has observed that :
'Dispossession may be 'wrongful' and yet not 'forcible' and to hold that 'wrongful' connotes absence of right or title would be to defeat the purpose of the section and to require the Magistrate to enter into questions which by the section itself are expressly excluded from his consideration. It is not necessary for us to attempt any exhaustive definition of the term 'wrongful dispossession' but having regard to the context, in our opinion, to say that a dispossession otherwise than in due course of law is wrongful would more closely represent the intention of the legislature.
Nor in our opinion is it 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 as in this case to intimidate those in possession and to deter them from resistance, the latter, in our opinion, may well be said to have been forcibly dispossessed'.
8. A Division Bench of Bombay High Court in the case of Bai Jiba v. Chandulal, AIR 1926 Bombay 91, while dealing with a case of landlord and tenant who was in possession of the property has observed :
'Accordingly, even a rightful owner, such, for instance, as a landlord who is entitled to possession in a case where his tenant is wrongfully holding over, can only take possession peaceably. If his possession is opposed however, wrongfully, then the landlord has no right to break down to doors, to assault the inmates and to turn them vi et armis out of the building. He must go to the civil Court and get the necessary warrants or ejectment orders to enable, if necessary, the proper authorities to effect a forcible entry or a forcible ejectment according to law'. (Marten, J.)
At p. 94, Pratt, J. observed :
'The phrase 'forcibly and wrongfully' has the same meaning as forcible entry without due warrant of law under the English statute. A forcible entry must be wrongful unless it is in execution of a legal process. It was held in Frankum v. Earl of Falmouth, (1835) 2 Ad. and El 452, that in an action for trespass the word 'wrongfully' does not put title in issue. The word 'wrongfully', therefore, means no more than 'otherwise than in due course of law' in Section 9 of the Specific Relief Act. The proviso was inserted because under the Code of 1872 the Courts were embarrassed by having to recognize a forcible possession. The case of In the matter of the petition of Mohesh Chunder Khan, (1878) 4 Cal. 417, is an instance where the Court overcame the difficulty by declaring that the possession to be recognized must be peaceful possession.'
9. In case of Amritlal N. Shah v. Nageswara Rao, AIR 1947 Madras 133, the Madras High Court while dealing a case of a lessee of a picture hall who was dispossessed and on the representation of notice issued by the District Magistrate which was incorrect, held thus :
'From the records, it is clear that the petitioner was in possession till the date on which he was evicted, and it is true that they did not take up cudgels or use violence to resist the entry by the respondent. But there is no doubt that in the absence of the petitioner the manager and other servants had no other go, since the notice of the Magistrate was shown to them; and since it was a notice issued on a mistake, such an eviction should be considered to be an eviction by force. It is not in all cases that actual force should be used before it could be said that the eviction is a forcible one. Misrepresentation and improper threats besides these are sufficient to constitute forcible dispossession, and there were these in this case. It was by getting the licence cancelled and by getting it issued in the name of the lessor and by having the notice issued by the Magistrate that the servants and others were made to leave. Therefore, it cannot be said that the preliminary order of the Magistrate saying that there was an apprehension of breach of the peace and that there was forcible dispossession was incorrect. As a matter of fact, the further proceedings clearly indicated this. But what happened is that the petitioner did not take the law into his own hands and enter on the property. If the contention of the respondent is to be accepted, it would mean that law-abiding citizens who are prepared to leave the matter to be decided by the Court instead of taking the law into their own hands are not to have the benefit of an order under Section 145, if they are peaceful.'
10. The Supreme Court in the case of R. H. Bhutani v. Mani J. Desai, AIR 1968 SC 1444, while considering the meaning of the word 'dispossessed' used in the proviso to sub-section (4) of Section 145 and referring to the decisions in cases of Bai Jiba and Sitanath Bhowmic (supra), in para 14 of the Report has observed :
'14. The word 'dispossessed' in the second proviso means to be out of possession, removed from the premises, ousted, ejected or excluded. Even where a person has a right to possession but taking the law into his hands makes a forcible entry otherwise than in due course of law, it would be a case of both forcible and wrongful dispossession : cf. Edwick v. Hawkes, (1881) 18 Ch D 199 and Jiba v. Chandulal, AIR 1926 Bom. 91. Sub- section (6) of Section 145 in such a case permits the Magistrate to direct restoration of possession with the legal effect that is valid until eviction in due course of law. In AIR 1926 Bom 91 (supra) the High Court of Bombay held that it would be unfair to allow the other party the advantages of his forcible and wrongful possession and the fact that time has elapsed since such dispossession and that the dispossessor has since then been in possession or has filed a suit for a declaration of title and for injunction restraining disturbance of his possession is no ground for the Magistrate to refuse to pass an order for restoration of possession once he is satisfied that the dispossessed party was in actual or deemed possession under the second proviso. Similarly, in A. N. Shah v. Nageswara Rao, AIR 1947 Mad 133, it was held that merely because there has been no further violence after one of the parties had wrongfully and forcibly dispossessed the other it cannot be said that there cannot be breach of peace and that, therefore, proceedings under Section 145 should be dropped. It may be that a party may not take the law in his hands in reply to the other party forcibly and wrongfully dispossessing him. That does not mean that he is not to have the benefit of the remedy under Section 145. The second proviso to sub-section (4) and sub-section (6) contemplates not a fugitive act of trespass or interference with the possession of the applicant, the dispossession there referred to is one that amounts to a completed act of forcible and wrongful driving out a party from his possession : (cf. Subarna Sunami v. Kartika Kudal, ILR (1954) Cut. 215 = AIR 1954 Ori. 183. It is thus fairly clear that the fact that dispossession of the appellant was a completed act and the appellant had filed a criminal complaint and the police had taken action thereunder do not mean that the Magistrate could not proceed under Section 145 and give directions permissible under sub-section (6)'.
11. The Bombay High Court in the case of Dr. P. K. Anita v. Shridhar Sadashiv,1982 Cri. L.J. 1463, while placing reliance on decision of the Supreme Court in the case of R. N. Bhutani (supra) has observed that the word 'forcibly' used in Section 145(4) proviso cannot be given a restricted meaning of dispossession accompanied by the use of criminal force as defined in Section 350 of the Penal Code. It is not necessary that actual force should be used to make dispossession a forcible one.
12. From the above, it is amply clear that a person who is in possession, not as a trespasser, cannot be dispossessed otherwise than in due course of law and if there is such dispossession, by a representation of promise and without using any force, as in the present case, on the assurance of the respondent No. 2 that temporarily a room be given which will be given back after the marriage, it is not only a promise without any intention of performing it, but also an act of fraud under Section 14 and of a misrepresentation under Section 18 of the Contract Act. Taking possession in such manner would amount to taking possession forcibly and wrongfully which would certainly attract the provisions of Section 145 as it was otherwise than in due process of law.
13. Calcutta High Court in the case of Jogendra Chandra v. Birendra Lal, AIR 1935 Cal. 454, while dealing a case under Section 9 (6 of the new Act) of the Specific Relief Act, has observed that the words 'otherwise than in due course of law' are not synonymous with the word 'illegality'. The phrase means 'otherwise than 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.'
14. The Mysore High Court in the case of Anoopchand v. Amerchand, AIR 1951 Mysore 101, while dealing a case of tenant 'holding over' who claimed restoration of possession under Section 9 of the Specific Relief Act, has held in para 5 of the Report that the object of Section 9 of the Specific Relief Act, is to protect peaceful possession against the illegal dispossession by persons who take the law into their hands. The possession of the property obtained through the medium of an officer of the court not authorised to act in that direction will not be any the less a dispossession caused without consent of the person in control of the property than in due course of law contemplated under the Specific Relief Act.
15. It would also not be out of place to make a reference of a decision of the Supreme Court in the case of Bai Gajara v. Ishwarlal Ratanlal Haribhakti, 1966 CAR 284 (SC), which is a case of the widow of the deceased tenant, who was out of the town and did not turn for about eight days and was also in arrears of rent, in her absence, the landlord, in the presence of the Panchas opened the house, made a list of the articles found there and took possession of the premises. On return, the widow of the deceased tenant found that she has been ousted from the house by committing trespass by the landlord, hence, filed a complaint under Section 448, Indian Penal Code against the landlord. Though in the facts of the case, the Supreme Court did not find the case having been made out under Section 448, but before parting with the case, in para 7 of the Report, observed thus :
'7. We must, however, not be understood to have said that a landlord is at liberty to take possession of a house which he has given to a tenant on rent in this manner. The conduct of the first respondent was definitely high-handed and if the matter had been put properly in the Court below, it is possible that the conviction might have been sustained. As he was not tried for the offence of house trespass with an intent to annoy but only for house offences with intent to commit an offence, which ingredient has not been accepted by the Courts below, we have seen no reason to differ from the High Court.
16. Therefore, it is amply clear that if a person is dispossessed, forcibly and wrongfully, in a case like this, even if there is no use of force, the proceedings under Section 145, Criminal Procedure Code would be maintainable and the Magistrate would have jurisdiction to put a party into possession who is wrongfully dispossessed without the process of law on an appropriate case being made out. Reliance of Shri Lahoti on a short-noted decision of this Court in the case of Balaram and Ors. v. Asharam and Ors., 1977 WN 478, wherein this Court has observed that for passing a preliminary order under Section 145, dispossession should be complete act of forcible and wrongful driving out of a party from his possession is of no help and is distinguishable on facts.
17. The next contention of Shri Lahoti that the petitioner had to have resorted to a suit under Section 6 of the Specific Relief Act, 1963 to recover possession and, therefore also, the SDM was having no jurisdiction to proceed under Section 145, is of no merit as under Section 145, a party is declared to be entitled to retain possession thereof until evicted thereform in due course of law. While such a proceeding is no bar for instituting a suit under Section 6, by a person who is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may recover possession thereof notwithstanding any other title that may be set up in the suit. Therefore, the remedy of Section 6 or of Section 145, Criminal Procedure Code does not bar each other.
18. Lastly, it was contended by Shri Lahoti that the respondent No. 2 has already instituted a suit for eviction of the' petitioner. Therefore, the order passed by the Additional Sessions Judge in revision does not call for any interference. That also, in the opinion of this Court, has no relevance for the purposes of this revision as now, the respondent No. 2 wants to evict the petitioner from the tenanted premises by due process of law and if the suit is decreed and eviction is ordered, certainly, the landlady shall be entitled to get possession. But, merely because the suit for eviction has. been filed, that would not affect the order of declaration of the petitioner entitled to be in possession under Section 145(4), Criminal Procedure Code.
19. In the result, the revision is allowed, the order of the revisional Court is set aside and that of the Sub-Divisional Magistrate is restored.