ORDER
Kanhaiya Singh, J.
1. The criminal reference and the criminal revision arise out of the order of the Magistrate, first class, Hazaribagh, dated 4-8-1958, declaring the possession of the first party, Basudeo Singh, who is opposite party before us and forbidding all interference with his possession by the members of the second party, one of whom, Jagarnath Prasad Bhagat, is the petitioner here.
2. The proceedings relate to mineral rights in coal bearing area of three hundred bighas, popularly known as Banwar colliery in the district of Hazaribagh. This colliery formed part of the estate of Raja Bahadur of Ramgarh who granted a permanent lease of the Banwar Colliery along with other properties to the Jharkhant Mines and Indus-tries Ltd., Calcutta. By a registered instrument dated 8-6-1951, the latter created a sub-lease of the Banwar Colliery in favour of Jagarnath Prasad Bhagat, the petitioner for 99 years. Under the terms of the deed, Jagarnath Prasad Bhagat had no authority to create a further sub-lease. By a deed dated the 26th May, 1953, he, however, granted Basudeo Singh the opposite party, on payment of rupees eight thousand as earnest money, a managing contract to work the said coal mines for 19 years on terms and conditions incorporated in Annexure A to the deed. Under the terms of the deed Basudeo Singh was given fifty-six months’ time to prepare a plan and execute and register a formal document. Basudeo Singh further had to submit the plan of the area to be so taken before Jagarnath Prasad Bhagat for approval within three months. A default in submission of the plan or execution of the registered document within the agreed period gave the petitioner an option to cancel the agreement and forfeit the earnest money. It is common ground that the plan was not submitted and the registered document was not executed as stipulated. On 25-4-1957, the petitioner served a notice on the opposite party to the effect that the lease had been determined. Basudeo Singh, the opposite party, replied that the lease was operative for nineteen years and could not be legally terminated and that in any event of the matter should rather be referred to arbitration as provided in the agreement.
3. On 11-5-1957, a dispute arose about possession of the said colliery and on the report of the police, the Magistrate on 30-5-1957, started a proceeding under Section 144 of the Code of Criminal Procedure against the members of both the parties, and on 25-6-1957, converted the said proceedings to proceedings under Section 145, Criminal procedure Code.
4. The case of the petitioner, Jagarnath Prasad Bhagat, is that by agreement of 2-6-5-1953, no lease was granted to Basudeo Singh, but that he was given merely a contract to raise coals, that as a raising contractor he acquired no interest in the mines and was never in possession of the same and had no power beyond extracting and disposing of coal and that too under him and that therefore, he had no control of, nor possession over the colliery direct or indirect, that even as a raising, contractor he worked only at quarry No. 1 and inclines therein comprising of an area of about two acres, the remainder of the area including quarry No. 2 and inclines therein being under his direct management and control, and that Basudeo Singh was in default of royalty the arrear of which swelled to rupees twenty thousand. It is alleged further that for these reasons the petitioner by notice dated 25-4-1957, terminated the contract whereupon. Basudeo Singh left quarry No. 1 and the petitioner assumed direct charge of the entire colliery. The opposite party denied that the petitioner terminated the agreement and resumed khas possession.
He asserted that by virtue of the agreement he entered into possession of the entire Banwar Colliery comprising of an area of three hundred bighas and was already in possession notwithstanding the cancellation of the agreement by the petitioner and had right to remain in possession and work the colliery for 19 years, and as such the petitioner had no right to interfere with his possession and was not entitled to take possession, his right being defined to royalties only. He further alleged that he had developed the colliery at a heavy cost and Jagarnath Prasad mala fide wanted to oust him from possession by force on 11-5-1937 and there ensued an imminent danger of a breach of the peace which compelled the Magistrate to take proceedings under Sections 144 and 145, Criminal Procedure Code.
5. In support of their respective possession, both parties adduced evidence of witnesses by putting in affidavits and also filed documents. In a lucid and very well reasoned and well discussed judgment, the learned Magistrate found possession, of Basudeo Singh, first party before him, in respect of the entire area of three hundred bighas and directed the petitioner not to interfere with it. He further held that Basudeo Singh was a raising contractor and not a lessee as claimed by him, The validity of this order is impeached by the second Additional Sessions Judge by a reference under Section 438, Criminal Procedure Code, and by Jagarnath Prasad Bhagat by preferring the criminal revision and both contended that the order is fit to be set aside.
6. To take up the reference first, the learned Additional Sessions Judge thought that the Banwar Colliery was divisible into two parts namely, the portion which is under operation and unworked remainder and expressed the view that since the unworked colliery was not capable of actual possession, the question of possession of one or the other can be decided only on the strength of title and the magistrate had failed to determine title and, therefore, the order declaring first party in possession was vitiated and was illegal. As regards tha worked up portion he held that the order was uncertain as the limits of the two quarries Nos. 1 and 2 were not precisely determined and hence incapable of execution. He based his finding on the decision of this Court in the case of Ranchi Zamindari Co. Ltd. v. Pratap Udainath Sahi Deo. AIR 1939 Pat 209. The learned Additional Sessions Judge failed to appreciate the correct ratio of the decision in that case and to consider the later decision of the Full Bench in the case of S.M. Yaqub v. T. N. Basu, AIR 1949 Fat 146 wherein the case of Ranchi Zamindari Co., was explained and distinguished. Sinha J. (as he then was) delivering in majority judgment of the Full Bench made the following observation with respect to the said case:
“But Mr. Das went further, and contended that, in so far as the learned Chief Justice upheld the possession of the true owner by appealing to the doctrine that possession followed title, his decision was bad in law. But in my opinion, it is not absolutely correct to say that the learned Chief Justice declared the true owner’s possession only by applying the doctrine of possession following title. His Lordship in the course of his judgment has pointed out the fact that the true owner had exercised his possession by granting a lease. But it was contended the lease was in respect of another village. This argument ignores the position that the owner had a number of villages constituting his state, and, therefore, a single village was not the unit of property held by him.
A rayat is in possession of his holding by “being in possession of a part of it, a tenure-holder similarly is in possession of his tenure and likewise the proprietor is in possession of his estate, and, if his estate comprises a number of villages, he will be in possession of the whole, if he is in possession of a part. It may be that his Lordship in that case relied upon very slight pieces of evidence in support of the finding of possession arrived at by the learned Magistrate. But that must depend on the circumstances of each particular case. As already pointed out, in the case of Secy. of State v. Devendra Lal Khan, 61 Ind App 78: (AIR 1934 PC 23) their Lordships of the Privy Council held that the granting by the zamin-dar of leases or licences to fish in the waters in question is the most significant evidence of adverse possession, and went to the length of observing that possession so evidenced is not deprived of its exclusive character by some evidence of isolated acts of fishing by the general public.
They further pointed out that evidence of acts of possession in a part of the river adjoining the part in dispute is admissible if there is a common character of locality. If these considerations could be prayed in aid of a wrong-doer, as their Lordships appear to have done in that case, such considerations must necessarily be much stronger in favour of the rightful owner. If the Division Bench ruling of this Court referred to above has decided that the Magistrate can declare possession in favour of the true owner without his exercising any act of possession in preference to the actual possession of a trespasser — and I do not think it has done so–with all respect I must disagree. But if the case can be construed as having upheld the possession of the true owner in respect of portions which had not been proved by the trespasser to have been actually occupied by him in conjunction with slight evidence of actual possession by the former, I do not see any error of law in such a decision.”
Thus, the case of Ranchi Zamindari Co., AIR 1939 Pat 209, is not an authority for the proposition that in case of unworked mines., or for the matter of that, in case of parti and uncultivated land, the proceedings under Section 145 Criminal Procedure Code should be determined by appealing to the doctrine that possession follows title. In fact there is no such authority and there can be none in view of the Specific Provisions of Section 145, Criminal Procedure Code, Sub-section (4) of Section 145 provides as follows:
“The Magistrate shall then, without reference to the merits or the claims of any such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject.
Provided that the magistrate may if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein,
Provided further that, if it appears to the magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date.
Provided also that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section,”
It is perfectly manifest that the proceedings under Section 145 Criminal Procedure Code, are summary proceedings calculated to prevent a breach of the peace and with that end in view, what the magistrate is required to decide is purely the fact of actual physical possession irrespective of the merits or the claim of any of the parties to a right to possess the subject of dispute. It is not his function to go into the complicated question of title and determine for himself who has got title to the disputed property. The question of title is outside the scope of the enquiry under Section 145 Criminal Procedure Code.
If the evidence of possession is clear and unambiguous and the Magistrate can rest his conclusion thereon, the party so found in possession must be maintained in possession, even if he has no title or is a mere trespasser and the title indisputably rests with the other party. This is not to say that under no circumstances should a magistrate advert to the question of title and that title in any shape or form is entirely irrelevant and of no value. In exceptional cases the title may be of value in appreciating the evidence of possession. The extent to which and the limits within which title can be investigated in a proceeding under Section 145, Criminal Procedure Code, have been laid down by the Full Bench aforesaid. I may reproduce! here only the conclusions recorded by Sinha J. (as he then was) after a thorough and exhaustive examination of the case laws on the point:
“In view of these considerations, I have come to the following conclusions:
1. That in a proceeding under Section 145 Criminal
Procedure Code the Magistrate is concerned only
with the question of actual possession, and he must
determine that question irrespective of the right
to possession.”
“2. That such a proceeding cap be initiated in respect of mineral rights if there is a dispute as regards possession between contending parties leading to an appreciation of a breach of the peace. Of course, it is open to the Magistrate ultimately to drop the proceedings on coming to the conclusion either that there was no apprehension of a breach of the peace or that the claim of one party was a mere pretence”.
“3. If the magistrate comes to the conclusion that, in Spite of a clear declaration of title in favour of one party by a Court of competent jurisdiction, the judgment-debtor is in actual physical possession of the property, he must declare that possession unless he comes to the conclusion that the dispossession of the true owner took place within two months before the initiation of the proceedings”.
4. But, if the magistrate finds that there is a clear declaration of title in favour of one party as against another party whose evidence of actual possession is not reliable the Magistrate may declare the true owner’s possession, however, slight his evidence of actual possession may have been.”
5. That it is not open to the Magistrate in such a proceeding to determine questions of title as between the contending parties; but, where there has been a determination of that question by a court of competent jurisdiction he may respect that determination in valuing the evidence of actual possession led on either side”.
6. That the proceedings of a Magistrate under Section 145 of the Code are not meant to be preliminary trial on a question of title but only a summary enquiry on the question of actual physical possession, and only evidence of such possession is admissible”.
It is thus obvious that the magistrate should not embark upon the investigation of the complicated question of title which is quite foreign to the proceedings under Section 145, Criminal Procedure Code, and the court will be fully justified in refusing to go into evidence of title. But, as observed by Sinha J., in the Full Bench case:
“Where the question of title has been determined once for all in favour of one or the other party to the litigation, criminal court is not precluded from taking “cognizance of the fact that title has been determined in favour of that party, and that the question of actual possession, it’ necessity-arises, may be determined with reference to the decision of the Civil Court, which is binding between the parties …… But it is one thing tor a magistrate to determine a question of title and quite a different thing for him to respect the determination of the question of title by a court of competent jurisdiction, which determination is binding on the parties before the criminal court. But as I have already indicated, it is not competent to a magistrate under the provisions of Section 145, Criminal P. C., to disregard actual possession of a trespasser and to declare the possession of the true owner only with reference to his title and by applying the rule of possession following title”. Nevertheless, the evidence of actual possession must be examined and must form the foundation of decision. It may be that “In the case of a rightful owner, slight evidence of possession may be enough to uphold his claim to actual possession: on the other hand, in the case of wrong-doer, such a slight evidence of possession will naturally not be accepted as evidence of actual possession, though in his case also law will not insist upon his proving actual occupation of the property every moment of the requisite period or in respect of every inch of the ground claimed by him”. Accordingly if the magistrate finds that there is a declaration of title in favour of one party as against another party whose evidence of actual possession is not reliable, the magistrate may declare the true owner’s possession, however slight his evidence of actual possession may have been.
In any case, there must be some acts of possession. If the losing party in a civil suit has adduced credible evidence of possession and the person having title has given no evidence or the evidence) tendered is not trustworthy the possession of the former though having no pretence to title must be upheld notwithstanding the declaration of title of possession by the civil court in favour of the latter. The decree of a civil court granting title is thus entitled to great respect but by itself it is inconclusive on the question of possession. The actual physical possession even of a trespasser has got to be declared in preference to the established title of the other contending party.
7. It is thus settled beyond controversy that the primary consideration in a proceeding under Section 145, Criminal Procedure Code is the evidence of actual physical possession. The quantum and degree of evidence will indeed vary with the circumstances’ of each case and while title which has been final-ly and conclusively adjudicated upon in a civil action can be pressed in aid to evaluate the evidence of possession, it cannot be regarded as the sole determinant of possession and the abstract dictum that possession follows title cannot be applied in the total absence of evidence. The reference, therefore, is based upon utter misconception of the true legal position in a proceeding under Section 145, Criminal Procedure Code, and cannot be accepted. Mr. Lalnarain Sinha who argued the case for the petitioner did not seriously press the reference, and I think rightly. I am constrained to observe that the magistrate has shown greater appreciation of the correct principles of law governing such cases than the Additional Sessions Judge. Accordingly the reference must be discharged.
8. Cr. Rev. 32/59 — In support of this application Mr. Lalnarayan Sinha who appeared for the petitioner raised three contentions. His first argument is that the status of the opposite party, Basudeo Singh, is that of a licensee. He was working a portion of the mine under the supervision and control of the petitioner. He was not in possession and was not entitled to possession. The agreement that was executed between the parties did not confer upon him a right to have khas possession of the mines in dispute. Developing his argument Mr. Sinha pointed out that un-disputedly Tagarnath Prasad Bhagat was the true owner and therefore, the opposite party cannot be regarded as in possession of the disputed mines. The activities of Basudeo Prasad Singh were nothing but what was directed by the lessee, i. e., the petitioner. He was on the land for a particular purpose, namely, to raise coal and hence it does not constitute possession in the eye of law.
9. His second contention is that the acts ol possession claimed to have been exercised by Basudeo Singh are confined to only one of the quarries, namely, quarry No. 1, which comprise an area of only about 2 acres and the remaining portion is still in direct possession of the petitioner. He further urged that there was no finding that both the quarries are in possession of the opposite party.
10. Lastly he urged that the learned magistrate also decided possession of the opposite party on the strength of the deed of agreement and his finding was nothing but a finding of constructive possession rather than actual physical possession and further the magistrate, ho pointed out, has inferred the possession of the entire mine from possession of a part of the same. None of these contentions, in my opinion, is valid. In fact all these contentions lack factual foundation.
11. The first contention actually raises a question of title which is forbidden by Section 145, Criminal Procedure Code. The magistrate has to consider the evidence of possession without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute. It will be, therefore, foreign to the enquiry under Section 145, Criminal Procedure Code, to deter-imine whether the opposite party was a sub-lessee or a raising contractor or a mere lessee or the agent of the petitioner. Further, it will be outside the true scope of the proceeding under Section 145, Criminal Procedure “Code, to construe the provisions of the deed of agreement and decide the respective rights of the parties created thereby. It will require investigation of complicated questions of title. As pointed out by the Full Bench of this Court referred to above, it is not open to the magistrate in such a proceeding to determine the question of title as between the parties.
If the evidence establishes the possession, of the opposite party beyond doubt and the petitioner-is not in possession, the possession of the opposite party must be declared by the Magistrate irrespective of the question whether that possession is as a licensee or a sub-lessee or a raising contractor. To say that possession of the opposite party is really the possession of the petitioner or that the latter is possessing the disputed lands through the petitioner is really to give effect not to actual physical possession but to constructive possession which in such a case is hardly permissible. Barring exceptional circumstances, as pointed out by the Full Bench aforesaid, which I must say do not obtain here, the magistrate is not entitled to base his decision upon constructive possession. Proceedings under Section 145, Criminal Procedure Code, are concerned with determining the question of actual physical possession as distinguished from constructive possession.
“A person may be deemed to be in actual possession of the property by reference to the theory of constructive possession, as for example, when a person is said to bo in possession of a unit of property which is too big to be physically occupied by the possessor at a given time, and, therefore, possession of a part means the possession of the whole”.
This is not the case here. What Mr. Sinha wants to find the court is that Basudeo Singh was not in possession in his own right, but he was working the mines us a licensee and. therefore, his possession was under the direct control and command of the petitioner, and therefore, his possession must be deemed to be the possession of the petitioner. Such a constructive possession is beyond the scope of the proceedings under Section 145, Criminal Procedure Code. This contention, therefore must be overruled.
12. His second contention is sufficiently de-molished by the findings of the learned Magistrate. He has addressed himself to an elaborate discussion of the evidence both oral and documentary and upon a careful consideration of the entire evidence the magistrate has arrived at the conclusion that Basudeo Singh Was in possession of both the quarries. It will be wholly wrong to sav that his finding is limited only to quarry No. 1. Mr. K. B. N. Singh appearing for the opposite party argued with commendable ability that both oral and documentary evidence, establish beyond doubt that Basudeo Singh was in possession of the entire disputed mine and that Jagarnath Prasad Bhagat, the petitioner, was not in possession of any portion thereof.
The magistrate has relied upon the evidence of possession adduced by means of affidavits and he has disbelieved the evidence on behalf of the petitioner and after hearing both the parties at length. I have no particular reasons to go behind the findings of possession recorded by the learned magistrate. I do not propose to discuss here in detail the evidence adduced by both the parties. It will be sufficient to say that there is ample evidence both oral and documentary, to support the conclusions reached by the learned magistrate and after going through the evidence, my own view is that the evidence of possession, as adduced by Basudeo Singh, is far superior to that adduced by Jagarnath Prasad Bhagat. I must, therefore, point out that the evidence of possession relates to both the quarries and not only to quarry No, 1 and the magistrate has given a clear finding that both the quarries are in possession of the opposite party. In the words of the magistrate, the materials on record and the evidence, both oral and documentary, are clear enough to determine the actual physical possession of Basudeo Singh over the colliery in question. This contention equally is meritless and must be overruled.
13. As regards the last contention, the magistrate has considered the actual possession of the petitioner. It will be incorrect to say that his finding of possession is rested upon the terms of the agreement. He has no doubt referred to the terms of the agreement in the course of his judgment, but he has not founded his conclusion upon the agreement alone. He has discussed the actual acts of possession exercised by Basudeo Singh. He has come to the conclusion that he is working both the quarries and his possession extends over the entire Bauwar Colliery in dispute. It was pointed out that quarries Nos. 1 and 2 are not at one place but at some distance and even assuming that both the quarries are being worked by Basudeo Singh, this fact alone will not imply that the entire colliery was in his possession. It was urged that the unworked portion of the Banwar colliery must be deemed to be in possession of the petitioner.
I am not inclined to accept this contention either. The magistrate has referred to different acts of possession which embrace the entire quarry. Two quarries are no doubt quite apart from each other and in a case of this nature it will be wrong to confine the possession only to the exact portion which is being worked. It is hardly possible to bring the entire colliery under operation at one time. Apart from working the colliery, different acts are required to be exercised even if any portion is not being worked. In this connection I would only refer to the following significant observation of the Privy Council in the case of Nageswar Bux Roy v. Bengal Coal Co. Ltd., AIR 1931 PC 1S6, which has been relied upon by the Full Bench of this Court referred to above, which rims as follows:
“Now there is undoubted authority for the proposition that where a person without any colour of right wrongfully takes possession as a trespasser of the property of another any title which he may acquire by adverse possession will be strictly limited to what he has actually so possessed. The maximum tantum prescriptum quantum possession is rigorously applied to him. And it has been held in the case of mines that there is no presumption in law that the possession of part of a seam infers possession of the whole seam, much less of all the seams in the mineral field in which part of the seam has been worked. On the other hand, possession is a question of fact and the extent of the possession may be an inference of fact”.
“In considering the character and effect of acts of possession in the case of a mineral field, it is necessary to bear in mind the nature of the subject and the possession of which it is susceptible. Owing to the inaccessibility of minerals in the earth, it is not possible to take actual physical
possession at once of a whole mineral field; it
can be occupied only by extracting the minerals
and until the whole minerals are exhausted the
physical occupation must necessarily be partial.
The real question is what in fact has been
possessed.”
In this case the magistrate has given very good
reason for holding that the entire colliery was in
his possession. The oral evidence establishes pos
session over the whole colliery. Further, the payment of sales tax road cess tax, colliery cess, the
payment of royalty to the petitioner, the release
from attachment of about 350 tons of coal of the
disputed colliery which had been attached in execution of the decree against Jagarnath Prasad Bhagat
in a proceeding under Order 21, Rule 58, Civil
Procedure Code, instituted by the opposite party
in presence of and without opposition from the
petitioner, receipts of the petitioner asking for
supply of coal — all these circumstances coupled
with the evidence of possession show quite clearly
that possession of Basudeo Singh extends over the
entire Banwara Colliery. What the magistrate
has done is that he had inferred possession over
the entire colliery from certain acts of possession
exercised by the opposite party. It will be wrong
to say that he has inferred possession of the whole
colliery from the title alone and this is quite permissible as pointed out by the Privy Council in
the case of Nagreshwar Bux Rai referred to above.
The whole colliery constitutes one unit of property and it will he wrong to assume that possession over every inch of the colliery must be proved
before the possession of the whole colliery is
found. In my opinion, this contention is equally
without merit and must be overruled.
14. In the result the criminal revision also is dismissed.