ORDER
N.L. Untwalia, J.
1. There is a strip of land measuring 165 feet x 35 feet situate in the town of Jharia in front of a building known as Anand Bhawan. It is part and parcel of plots Nos. 1016 and 1017. On a portion of this land stand structures. A proceeding under Section 144 of the Code of Criminal Procedure (hereinafter called the Code) was started some time in the year 1964, Subsequently it was converted into a proceeding under Section 145 of the Code. Dudh Nath Singh, the petitioner in this criminal revision, was the first party in the proceeding which seems to have been started upon the police report and Sarju Singh, the opposite party in this revision, was the second party. In the show cause filed by the petitioner, on 14-2-1965 in the Court of the Sub-divisional Magistrate at Dhan-bad he clearly stated that he is an employee under one Shreemati Kusumlata Agarwala, wife of Om Prakash Agarwala and he looks after, and manages, her property and that the disputed land which was the subject matter of the proceeding belonged to the said lady and she had all along been in peaceful possession of the same by constructing temporary structures for her servants and other men stated in 7th paragraph of her show cause petition. The opposite party claimed himself to be in actual physical possession of the disputed land. The learned Magistrate Shri Ghanshyarn Chandra Prasad Sinha, Magistrate 1st class at Dhanbad has concluded and decided the proceeding under Section 145 of the Code in favour of the opposite party and declared him in possession. The petitioner has come up in revision to this Court.
2. In my opinion the proceeding in absence of Shreemati Kusumlata Agarwala is misconceived and suffers from an infirmity of the kind, which would not justify the conclusion of the proceeding in favour of any party. Nowhere the petitioner in any sense claimed to be in actual physical possession of the disputed land. He was, therefore, on the facts and in the circumstances of this case, not a party concerned in the dispute in question within the meaning of Section 145 of the Code. The party concerned on the case of the petitioner, as stated in the order of the learned Magistrate, was Shreemati Kusumlata Agarwala. It is undisputed that Shreemati Kusumlata Agarwala is a resident of Jharia town and is stated to be living in Anand Bhawan, in front of which lies the disputed land. The preliminary proceeding drawn against the petitioner, who was the servant of Shreemati Kusumlata Agarwala was defective and illegal. He was not a person who could be asked to put in his written statement his respective claim as respects the facts of actual possession of the subject of dispute.
Supposing, the learned Magistrate or this Court were to come to the conclusion that the property was in actual physical possession of Shreemati Kusumlata Agarwala, the petitioner could not be declared in possession of such property nor could Shreemati Kusumlata Agarwala be so declared as she was not a party to the proceeding. In my opinion, therefore, if an order in the proceeding could not be made in favour of either the petitioner or Shreemati Kusumlata Agarwala, it could not either be made in favour of the opposite party and against the petitioner, which in effect would be against Shreemati Kusumlata Agarwala.
3. In support of the view which I have expressed above, I may cite the decision of a Bench of the Calcutta High Court consisting, if I may say so, of very eminent Judges in Behary Lall Trigunait v. Darby, (1894) ILR 21 Cal 915. In that case the order under Section 145 of the Code had been made in favour of Mr. Darby, who had stated in his written statement that the property in question belonged to a coal Company, and that his position was that of a manager of the Company. He had not stated that, he had any interest except as manager, and did not state that he had any independent or in fact any possession, except as representing the Company on whose behalf he was managing the mine. Under such a situation Petheram, C. J. and Rampini, J. set aside the order in favour of Mr. Darby saying-
“….. We do not think that the kind of possession is a possession such as is contemplated by this section, or, as I said just now, that the parties interested are properly before us”.
In material particulars the written statement of the petitioner in the instant case is identical with that of Mr. Darby of the Calcutta case aforesaid. Another Bench of the Calcutta High Court took the same view in Brown v. Prithiraj Mandal, (1898) ILR 25 Cal 423 under similar circumstances. In this case the order was against one Mr. Brown, who in his written statement had stated that he was not the actual proprietor of the land in dispute, but was there merely in the character of the manager for the actual proprietor, one Mr. Ephgrave. The Magistrate had decided the proceeding against Mr. Brown not disputing his statement that he was not claiming actual physical possession for himself. Following the decision in (1894) ILR 21 Cal 915 the proceedings were set aside ab initio.
4. To the same effect is the view expressed by a learned single Judge in Rup Chand v. Bhagalu Singh, AIR 1954 Assam 77. The decision of a learned single Judge of Madhya Bharat High Court in Ratan Singh v. Raghubir Singh, AIR 1952 Madh B 165 is clearly distinguishable as in that case the son-in-law, who was a party to the proceeding and was claiming actual physical possession of his mother-in-law, was not only there as the son-in-law but was there as her Mukhtyar also. The preponderance of the view is in favour of the one expressed by the Calcutta High Court in (1894) ILR 21 Cal 915. In a Full Bench decision of the Calcutta High Court in Dhondhai Singh v. Follet, (1904) ILR 31 Cal 48 (FB), it was pointed out, to quote the placitum, that-
“There is jurisdiction under Section 145 of the Criminal Procedure Code, to make an order in favour of a person who claims to be in possession of the disputed land, as agent to, or manager for, the proprietors when the actual proprietors are not residents within the Appellate Jurisdiction of the High Court”.
If I may say so with respect, under certain circumstances this would be so. To illustrate my point, supposing a man as an agent of the owner of the property, who lives far away from the place where the property is situated, is managing the property on behalf of the principal and while so managing it is possible to take the view he is in actual physical possession of the property for the purposes of Section 145 of the Code. But to extend this principle to a mere servant, agent or an employee and call him a person in actual physical possession or a party concerned within the meaning of Section 145 of the Code when the principal or the master is himself or herself, as the case may be, is the resident of the same place is to obliterate and brush aside a very salient principle of law, if I may say so with great respect, as laid down by Pethe-ram C. J. in (1894) ILR 21 Cal 915 a case which has not been overruled by the Full Bench of the Calcutta High Court or does not seem to have been overruled by sny higher Court.
5. Mr. Justice S.K. Sen of the Calcutta High Court sitting in a Division Bench and without referring to the earlier Calcutta decisions said in Turu Majhi v. State, AIR 1953 Cal 397-
“…… The second point taken was that the opposite party being an employee of the landlord was not competent to figure as a party in the proceedings under Section 145, Criminal P. C. There appears, however, no legal bar to a landlord being represented by his employee”.
I am constrained to observe with very great respect that this view was expressed per incuriam and cannot be accepted to be the consistent view of the Calcutta High Court. The same learned Judge stuck to this view sitting singly in Sukchand Roy v. Sefazuddin Mohammad, AIR 1959 Cal 505 and this time he preferred to follow the single Judge decision of the Madhya Bharat High Court in AIR 1952 Madh B 165 instead of the decision of the Assam High Court in AIR 1954 Assam 77. Reference was made to Behary Lall Trigunait’s case in (1894) ILR 21 Cal 915, as also to the Full Bench decision in (1904) ILR 31 Cal 48 (FB). Again without much discussion, I may say so with very great respect, the learned Judge persuaded himself to stick to his observation made in AIR 1953 Cal 397. I do not feel persuaded to accept his view as correct and following the earlier Calcutta decision I hold in this case that the proceeding was bad in absence of Shreemati Kusumlata Agarwala being made a party to the proceeding. If in addition to her the petitioner was made a party to the proceeding, no serious objection could be taken to it but in absence of the only necessary party 1 must hold that the proceeding is misconceived and illegal.
6. In the result I allow the application, set aside the proceeding in case No. 634 of 1964 and consequently the order of the learned Magistrate dated 30-11-1967 passed in favour of the opposite party in the said proceeding, I may, however, observe that if there is any fresh apprehension of breach of peace, proper proceeding may again be drawn up on proper materials and against the necessary parties.