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PETITIONER: R.H. BHUTANI

       Vs.

RESPONDENT: MISS MANI J. DESAI & ORS.

DATE OF JUDGMENT: 23/04/1968

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. SIKRI, S.M. BHARGAVA, VISHISHTHA

CITATION:  1968 AIR 1444            1969 SCR  (1)  80  CITATOR INFO :  E          1981 SC  18  (6)

ACT: Code   of  Criminal  Procedure  (Act  5  of  1898),   s.145- Satisfaction of the Magistrate under sub-s.  (1)-Requirement for  recording  reasons when satisfied--Calling  for  police report   whether  necessary  before  recording   preliminary order--Completion   of   dispossession   before   date    of preliminary  order whether means that there is  no  existing dispute with in the meaning of sub-s. (1).

HEADNOTE: The  appellant occupied an office cabin in Bombay  on  leave and  licence from respondent No. 1. In an application  under s.  145  of  the Code of Criminal  Procedure  the  appellant -alleged  that on June 11, 1966 respondent No. 1  wrongfully took  possession of the cabin and gave in to  respondents  2 and 3 who forcibly presented his re-entry.  He also lodged a report of the incident with the, police as a result of which respondent  No. 1 was arrested for an offence under  s.  351 Indian Penal Code but was released on bail.  Respondent No.1 filed  a  civil  suit and took out a notice  of  motion  for restraining   the  appellant  from  interfering   with   the possession  of the cabin, but the same was  dismissed.   The Magistrate trying the application under s. 145 -of the  Code of Criminal Procedure passed a preliminary order on June 20, 1966  recording  his satisfaction that  a  dispute  existed. After considering the affidavits and the evidence led by the parties  the Magistrate accepted the appellant’s version  of facts and on June 22, 1967 passed the final order under sub- s. (6) directing restoration of possession to the  appellant tin  evicted  in  due  course of law.   The  High  Court  in revision  set  aside  the order ,of the  Magistrate  on  the following grounds : (i) That the Magistrate had not recorded his reasons for passing the preliminary order; (ii) that the Magistrate  had passed the said order without calling for  a police  report,  merely  on the  basis  of  the  appellant’s allegations;  (iii) That the dispossession of the  appellant was  completed  and a report of assault was  lodged  by  the appellant  with the police before the preliminary order  was passed, and therefore there was no longer any dispute on the

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day of the order likely to lead to a breach of the peace. HELD  : (i) The satisfaction under sub-s. (1) of s.  145  is that  of  the  Magistrate.   The  question  whether  on  the materials  before him be should initiate proceedings or  not is, therefore, in his discretion which, no doubt, has to  be exercised  in accordance with the well recognised  rules  in that  behalf.   The  High  Court  in  the  exercise  of  its revisional  jurisdiction would not go into the  question  of sufficiency of material which had satisfied the  Magistrate. [86A-B] In  the  present  case  the  Magistrate  had  expressed  his satisfaction  on  the  basis of the facts  set  out  in  the application  before him after he had examined the  appellant on  oath.   That  means that those facts  were  prima  facie sufficient and were the reasons leading to his  satisfaction [86C-D] (ii) The  jurisdiction  under s. 145 being of  an  emergency nature, the Magistrate must ’act with caution but that  does not mean that where on an application by one of the  parties to the dispute he is satisfied that the requirements of  the section ’are existent he cannot initiate proceedings 81 without  a  police  report.   The  other  view  limits   the discretion  of the Magistrate and renders the words ,  other information’  in s. 145(1) either superfluous  or  qualifies them  to  mean other- information verified  by  the  police. 187D-E] Phutania  v.  Emperor, (1924) 25 Cr.  L.J. 1109,  Ganesh  v. Venkataswara (1964) 2 Cr.  L.J. 100 and Raja of Karyentnagar v.  Sowcar  Lodd  Govind Doss, (1906) I.L.R.  29  Mad.  561, disapproved (iii)  The High Court erred in holding that  merely  because dispossession of the appellant was completed before June 20, 1966,  there was no dispute existing on that day  which  was likely  (to lead to breach of peace or that  the  Magistrate was, therefore, prevented from passing the preliminary order and  proceeding thence to continue the enquiry and pass  his final  order.   This reasoning would mean that  if  a  party takes  the  law  into his hands and  deprives  forcibly  and wrongfully the other party of his possession and  wrongfully completes   his   act  of  dispossession,   the   party   so dispossessed  cannot have the benefit of s. 145. as  by  the time he files his application and the Magistrate passes  his order,  the dispossession would be complete  and  therefore, there would be no existing dispute likely to cause a  breach of the peace.  Such a view does not take into  consideration the  second  proviso  to sub-s.  (4)  which  was  introduced precisely to meet such cases. [87F-H; 88A] 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.  [88 D- Reading  s.  145  as a whole it is clear  that  even  though respondent  1 had taken over possession of the cabin,  since that incident took place within the prescribed period of two months  next before (the date of the preliminary order,  the -appellant  was  deemed to be in possession on the  date  of that  order  and the Magistrate was competent  to  pass  the final order as he did. [89 D] Edwick  v, Hawkes, 18 Ch.D. 199, Jiba v.  Chandulal,  A.I.R. 1926 Bom. 91, A. N. Shah v. Nageswara Rao, A.I.R. 1947  Mad. 133  and  Subarna  Sunami v. Kartika  Kudal,  (1954)  I.L.R.

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Cuttk. 215, applied.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 17  of 1968. Appeal  by special leave from the judgment and  order  dated August  17,  1967  of  the Bombay  High  Court  in  Criminal Revision Application No. 668 of 1967. S. Bhutani and Urmila Kapur, for the appellant. B. R. L. Iyengar and P. C. Bhartari, for the respondents. The Judgment of the Court was delivered by Shelat, J. At all material times respondent I had her office premises in Nawab Building, Fort, Bombay, which consisted of two cabins.  On July 10, 1964, she entered into an agreement with  the  appellant permitting him, to occupy  one  of  the cabins on leave 82 and licence for a period of eleven months.  On June 9, 1965, the  agreement was extended for a period of  eleven  months. The  appellant’s case was that it was further  extended  for another eleven months as from May 10, 1966 and respondent  1 accordingly  accepted Rs. 450 as compensation for May  1966. Respondent  I thereafter demanded higher compensation  which he  refused  to pay and thereupon respondent  1  refused  to execute the renewal and threatened to eject him forcibly  if he did not vacate.  His case further was that in the morning of  June 11, 1966 respondent 1 broke open the staple of  the cabin,  removed  the door from its hinges, removed  all  his belongings lying in the cabin and dumped them in the passage outside.   She then handed over possession of the  cabin  to respondents  2 and 3 purporting to do so under an  agreement of licence dated June 1, 1966.  When he went to the cabin he found  the  cabin occupied by respondents 2 and  3.  On  his asking  them  to place back his belongings  and  to  restore possession to him, the respondents threatened him with  dire consequences.  He, therefore, went to the police station but the police refused to take action and only recorded his N.C. complaint.   From  the  police station he  and  his  friend, Mahomed Salim returned to the cabin when, on their demanding possession of the cabin, the respondents attacked them.   In the course of that attack, the said Salim received injuries. He and the said Salim once again went to the police  station but  the  police again refused to take action  and  recorded another  N.C. complaint and sent Salim to the  hospital  for examination.  Due to the persistent refusal by the police to help  him  to get back the cabin, the  appellant  approached higher  authorities  in consequence of which the  police  at last  recorded a case of assault against respondent 1.  They then  arrested  respondent  1  but  released  her  on  bail. Respondent  1, however, kept some persons near the cabin  to prevent  the  appellant from recovering  possession.   There was,  therefore, every likelihood of a breach of  the  peace had  he  gone to the cabin to regain possession.   In  these circumstances he filed an application before the  Additional Chief  Presidency  Magistrate under s. 145 of  the  Code  of Criminal Procedure. The Magistrate then directed the parties to file  affidavits and  to  adduce  such  further  evidence  as  they  desired. Accordingly, the parties filed affidavits of various persons who had their offices in the same building.  The  appellant, besides  other  affidavits, also filed an affidavit  of  one Nathani,  the Manager of his company at whose  instance,  it was  the case of respondent 1, the appellant had  agreed  to

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hand over and actually did hand over possession of the cabin in  the morning of June 11, 1966.  That affidavit,  however, did  not support respondent 1 but, on the  contrary,  denied that  Nathani had agreed that the appellant could vacate  or that the appellant at his instance had agreed to do so. 83 In her written. statement, respondent I denied that the said licence was renewed a second time in May 1966.  Her case was that  at the request of the appellant she had permitted  him to continue in possession, till May 1966 on his promising to vacate by the end of that month, that on June, 11, 1966, the appellant  vacated  the cabin, kept his  belongings  in  the passage  and thereupon she permitted respondents 2 and 3  to occupy  it  as, relying on the appellant’s promise  that  he would vacate by the end of May 1966, she had already entered into an agreement of licence on June 1, 1966 with respondent 3.  She  denied  that  any  incident,  as  alleged  by   the appellant, had occurred on that day or that the appellant or the said Salim was assaulted by her or by respondent 2 or 3. She, therefore, denied that any dispute existed on that  day or  that there was any likelihood of a breach of the  peace. Respondents  2 and 3 also filed their written statements  on the lines taken by respondent 1. But after filing them, they did not participate any more in the proceedings as they  had since  then vacated the said cabin.  Possession,  therefore, of  the  cabin  since  then  remained  with  respondent   1. Respondent 1 in the meantime filed a suit in the City  Civil Court  and took out a notice of motion for  restraining  the appellant  from,  interfering  with her  possession  of  the cabin.  The Court dismissed the notice of motion refusing to rely on the said agreement. In  the proceedings before the Magistrate the main  question was  whether the appellant was in actual possession on  June 11,  1966  and  whether  he  was  forcibly  and   worngfully dispossessed  by respondent 1 or whether he had vacated  and surrendered the cabin to respondent 1. After considering the affidavits  and  the  evidence  led  by  the  parties,   the Magistrate   reached  the  following  findings.   (1)   that respondent  1  started  harassing  the  appellant  from  the beginning  of  June  1966  and  gave  threats  to   forcibly dispossess   him  if  he  did  not  vacate;  (2)  that   the appellant’s  version that the respondents had  forcibly  and wrongfully  taken possession of the cabin in the morning  of June 11, 1966 was true; and (3) that when the appellant  and the said Salim went to the cabin, the respondents manhandled them as a result of which Salim received injuries. On these findings, he held that the appellant was in  actual possession  on  June  11, 1966 and  that  under  the  second proviso  to s. 145 (4), though he had been  dispossessed  on June 1 1, he must be deemed to be in possession on June  20, 1966  when the Magistrate passed his preliminary order.   By his  final  order dated’ June 22, 1967 passed  under  sub-s. (6),  the Magistrate directed restoration of  possession  to the appellant till he would be evicted’ in due course of law and  -prohibited the respondents from interferring with  his possession till then. In  the  revision  before the High  Court,  the  respondents raised  two  contentions  :  (1)  that  the  Magistrate,  in entertaining the said 84 application   and  passing  the  said  preliminary   order,. misconceived the scope of proceedings under s. 145, and  (2) that  he  had no jurisdiction to pass the  said  preliminary order  as  in  the events that had  happened  there  was  no existing dispute likely to result in a breach of the  peace.

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,  The High Court accepted these contentions .and set  aside the order of the Magistrate.  In doing so, it observed  that the object of s. 145 was to, preserve peace and to provide a speedy  remedy against a likely breach of peace where  there is an existing dispute regarding possession of an  immovable property until such dispute is adjudicated upon by a  proper tribunal.   That  section, therefore, can be  invoked  where these two conditions exist, namely, an existing dispute  and an  apprehension  of  breach  of  peace.   The   Magistrate, therefore,  had to be satisfied as to the existing of  these two  conditions when he passed the preliminary  order.   The High  Court then observed that assuming that  the  appellant was forcibly and wrongfully dispossessed and the said  Salim was assaulted by respondent 1 and her men, it could not even then  necessarily  mean that there was an  existing  dispute relating  to  possession of the cabin which  was  likely  to cause  breach of peace on June 20, 1966 when the  Magistrate passed  his  preliminary order.  The acts  of  respondent  I might  constitute  an offence, for which the  appellant  had filed  a  complaint under s. 341 of the Penal Code  and  the police had arrested respondent 1. and released her on  bail, In  the  light of these facts the Magistrate ought  to  have held  that  on that day there did not any longer  exist  any dispute  regarding  possession of the said cabin  which  was likely  to lead to a breach of the peace.  The  High  Court, further,  observed that the preliminary order did  not  also record  the reasons for the Magistrate’s satisfaction as  to the  two conditions and that all that it stated was that  on the  facts stated in the said application, he was  satisfied that  there was a dispute which was, likely to cause  breach of  the peace.  The High Court also observed that  all  that the   application  showed  was  that  there   was   forcibly dispossession and an attempted assault; that from these  two facts  it  was  difficult to see bow,  without  any  further enquiry,  the Magistrate could come to the  conclusion  that there  was  likelihood  of breach of  peace  unless  it  was assumed  that in every case of a dispute over possession  of an  immoveable  property and  forcibly  dispossession  there would  be  continuous possibility of breach of  peace.   The High Court complained that the Magistrate did not call for a police  report and simply relied on the bare allegations  of an  interested party.  On this reasoning, it held  that  the Magistrate  had misconceived the scope of proceedings  under s.  145  and  passed the preliminary order as if  it  was  a process  issued by him in a non-cognisable case.   The  High Court also noted that respondent I had placed respondent (3) in possession, that respondent 3 had remained in  possession for  nearly  a year by the time the  Magistrate  passed  his final  order, that the final order would, therefore,  affect his vested rights, and that 85 this fact coupled with the fact of the appellants  complaint under  s.  341 of the Penal Code on June 13, 1966  ought  to have  been considered by the Magistrate before  passing  the final  order.   As aforesaid, the High Court set  aside  the Magistrate’s order whereupon the appellant obtained  special leave  and filed this appeal challenging the correctness  of the High Court’s order. Before proceeding further, we may mention that respondents 2 and  3 had vacated the premises long before  the  Magistrate passed  the final order.  There was, therefore, no  question of  the Magistrate having to consider the question of  their having  been in possession for about a year or their  having any  vested rights under the agreement dated June  1,  1966. It  may  also  be recalled that the  City  Civil  Court  had

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refused to rely on the said agreement and to pass an interim injunction  restraining  the appellant from  disturbing  the possession of respondent 1. The  object  of s. 145, no doubt, is to  prevent  breach  of peace  and  for  that  end to provide  a  speedy  remedy  by bringing  the parties before the court and ascertaining  who of them was in actual possession and to maintain status  quo until  their rights are determined a competent  court.   The section  requires  that  the Magistrate  must  be  satisfied before  initiating proceedings that a dispute, regarding  an immoveable  property exists and that such dispute is  likely to cause breach of peace.  But once he is satisfied of these two   conditions,  the  section  requires  him  to  pass   a preliminary order under sub-s. (1) and thereafter to make an enquiry under sub-s. (4) and pass a final order under sub-s. (6).   It is not necessary that at the time of  passing  the final  order  the  apprehension of breach  of  peace  should continue or -exist.  The enquiry under s. 145 is limited  to the question as to who was in actual possession on the  date of  the preliminary order irrespective of the rights of  the parties.   Under the second proviso, the party who is  found to have been forcibly and wrongfully dispossessed within two months next preceding the date of the preliminary order  may for  the  purpose of the enquiry be deemed to have  been  in possession  on the date of that order.  The  opposite  party may of course prove that dispossession took place more  than two months next preceding the date of that order and in that case  the  Magistrate would have to cancel  his  preliminary order.   On  the  other  hand,  if  he  is  satisfied   that dispossession was both forcible and wrongful and took  place within  the prescribed period, the party dispossessed  would be  deemed  to be in actual possession on the  date  of  the preliminary  order and the Magistrate would then proceed  to make  his final order directing the dispossessor to  restore possession  and  prohibit  him from  interfering  with  that possession  until the applicant is evicted in due course  of law.  This is broadly the scheme of 145. 86 The satisfaction under sub-s. (1) is of the Magistrate.  The question  whether  on the materials before  him,  he  should initiate proceedings or not is, therefore, in his discretion which, no doubt, ,has to be exercised in accordance with the well  recognised rules of law in that behalf.  No  hard  and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction.  The language of the  sub- section is clear and unambiguous that he can .arrive at  his satisfaction  both  from the police report  or  "from  other information" which must include an application by the  party dispossessed.   The  High  Court, in  the  exercise  of  its revisional  jurisdiction, would not go into the question  of sufficiency of material which has satisfied the Magistrate. The question is whether the preliminary order passed by  the Magistrate  was  in  breach of s. 145(1), that  is,  in  the absence  of either of the two conditions precedent.  One  of the grounds on which the High Court interfered was that  the Magistrate  failed  to record in his preliminary  order  the reasons  for  his  satisfaction.   The  section,  no  doubt, requires   him  to  record  reasons.   The  Magistrate   has expressed  his satisfaction. on the basis of the  facts  set out in the application before him and after he had  examined the  appellant on oath.  ’That means that those  facts  were prima  facie sufficient and were the reasons leading to  his satisfaction. The  other  reason  which,  according  to  the  High  Court, vitiated the order was that the Magistrate acted only on the

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allegations  in the appellant’s application  without  making any  further  enquiry  and issued the order  as  if  he  was issuing  a  process  in a N.C. case.  But  counsel  for  the respondents  conceded  that  before passing  the  order  the Magistrate  had examined the appellant on oath and  it  -was then only that he made the order recording his satisfaction. But apart from the allegations in the application as to  his forcible  and wrongful dispossession and assault, there  was the  fact  that on ..June 11, 1966 the  appellant  had  gone twice  to the police station, requested the police  to  take action  and had lodged two N.C. complaints.   This  material being  before the Magistrate, it was hardly ’fair  to  blame the  Magistrate  that he had passed  his  preliminary  order lightly  or without being satisfied as to the  existence  of the ’two conditions required by the sub-section. Was  the  High Court next justified in  observing  that  the Magistrate  ought  to,  have  got a  police  report  on  the allegations  made  in the application before he  passed  his said  order ? Such a view has been taken in some  decisions. In Phutania v. Emperor(1) the view -taken was that it was  a safe general rule for a Magistrate to refuse to take  action under s. 145 except on a police report and that the .absence of  such.  a report is almost conclusive indication  of  the absence  of  any likelihood of breach of peace.   A  similar opinion has also been expressed in Ganesh v. Venkataswara(2) where, (1) (1924) 25 Cr.L.J.1109. (2) (1964) 2 Cr,L.J,100 87 relying  on  Raja  of  Karvetnagar  V.  Sowcar  Lodd  Govind Doss(1),  the Mysore High Court observed that law and  order being the, concern of the police it is but natural that  the Magistrate should either be moved by the police or if  moved by  a  private  party, he should call for  a  police  report regarding  the likelihood of breach of peace.  But the  High Court  of Madras in the case of Raja of Karvetnagar(1),  did not lay down any such proposition but merely sounded a  note of  caution  that  in the absence of  a  police  report  the statements  of an interested party should not be  relied  on without   caution   and   without   corroboration.     ’-the proposition  that the Magistrate before proceeding under  s. 145  (1) must, as a rule, call for a police report where  he is moved by a private party or that the absence of a  police report is a sure indication of the absence of possibility of breach  of peace, is not warranted by the clear language  of the  section  which  permits  the  Magistrate  to   initiate proceedings  either  on  the  police  report  or  "on  other information".  The words "other information" are wide enough to   include  an  application  by  a  private  party.    The jurisdiction  under s. 145 being, no doubt, of an  emergency nature,  the Magistrate must act with caution but that  does not mean that where on an application by one of the  parties to the dispute he is satisfied that the requirements of  the section  are.  existent,  he  cannot  initiate   proceedings without  a police report.  The view taken in  the  aforesaid two decisions unnecessarily and without any warrant from the language  of  sub-s.  (1)  limits  the-  discretion  of  the Magistrate and renders the words "other information"  either superfluous  or  qualifies them to  mean  other  information verified  by the police.  In our view, once the  Magistrate, having  examined the applicant on oath, was  satisfied  that his  application disclosed the existence of the dispute  and the likelihood of breach of peace, there was no bar  against his acting under s. 145(1). The  next ground for the High Court’s interference was  that

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assuming  that  the appellant was  forcibly  and  wrongfully dispossessed  and  the said Salim was  assaulted,  the  said dispossession  was  completed, a complaint  of  assault  was lodged  and the police had already taken action  before  the preliminary  order was passed on June 20, 1966.   Therefore, it was said, there was no longer any dispute on the date  of the order likely to lead to breach of peace and consequently the order did not comply with the requirements of s.  145(1) and  was  without jurisdiction.  This reasoning  would  mean that  if a party takes the, law into his hands and  deprives forcibly  and wrongfully the other party of  his  possession and  completes  his  act  of  dispossession,  the  party  so dispossessed  cannot have the benefit of s. 145, as  by  the time he files his application and the Magistrate passes  his order,  the dispossession would be complete and,  therefore, there would be no existing, dispute likely (1) (1906) I.L.R .29 Mad.561. 88 to cause breach of peace.  Such a construction of S. 145, in our  view,  is  not  correct, for  it  does  not  take  into consideration  the  second proviso to sub-s. (4)  which  was introduced precisely to meet such cases.  The Magistrate has first  to decide who is in actual possession at the date  of his  preliminary order.  If, however, the party in de  facto possession is found to have obtained possession by  forcibly and  wrongfully  dispossession the other  party  within  two months next preceding the date of his order, the  Magistrate can treat the dispossessed party as if he was in  possession on  such  date, restore possession to him and  prohibit  the dispossessor  from  interfering with that  possession  until eviction  of that person in due course of law.  The  proviso is  founded  on  the principle that  forcible  and  wrongful dispossession  is  not to be recognised under  the  criminal law.  So that it is not possible to say that such an act  of dispossession  was completed before the date of  the  order. To say otherwise would mean that if a party who is  forcibly and wrongfully dispossessed does not in retaliation take the law into his hands, be should be at disadvantage and  cannot have the benefit of s. 145. 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 :  (of Edwick v. Hawkes(1) and jiba v. Chandulal) (2).  Sub-section (6)  of  s.  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  Jiba  v. Chandulal (2) 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 demand possession under the second proviso. Similarly, in A. N. Shah v. Nageswar Rao(") 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 s.  145  should  be dropped.  It may be that a party may not take the law in his

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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 s. 145, The (1)  18 Ch.  D. 199.        (2) A.I.R. 1926 Bom. 91. (3)  A.I.R.1947 Mad. 133. 89 second proviso to sub-s. (4-) and sub-s. (6) contemplate 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:  (of Subarna Sunami v. Kartika Kudal) (1) 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  s.  145 and give direction permissible  under  sub-s. (6). In our view, the High Court erred in holding that merely be- cause  dispossession of the appellant was  completed  before June,  20. 1966, there was no dispute existing on  that  day which  was  likely to lead to breach of peace  or  that  the Magistrate  was,  therefore,  prevented  from  passing   his preliminary  order  and proceeding thence  to  continue  the enquiry  and pass his final order.  In our view, reading  s. 145  as a whole, it is clear that even though  respondent  1 had  taken  over possession of the said  cabin,  since  that incident  took  place within the prescribed  period  of  two months  next before the date of the preliminary  order,  the appellant was deemed to be in possession on the date of that order  and  the Magistrate was competent to pass  the  final order  directing restoration of possession  and  restraining respondent 1 from interfering with that possession until the appellant’s eviction in due course of law. We,  therefore, allow the appeal, set side the High  Court’s order and restore that of the Trial Magistrate. G.C.                     Appeal allowed. (1) (1954) I.L.R.Cuttak 215. L10 Sup. C.I/68-7 90