Coxe and Ryves, JJ.
1. This is a Rule on the District Magistrate of Purneah to show cause why an order under Section 145 of the Criminal Procedure Code should not be set aside on the ground that the Magistrate had no jurisdiction to pass any order in respect of the subject-matter of the dispute in which the parties claimed to be jointly interested.
2. The Magistrate has submitted an explanation, but does not refer therein to the difficulty which has occasioned the Rule.
3. It appears that the first party, Mohesh Lal, and Kristo Mohan Das of the second party, are entitled to the market in dispute. The former is entitled to ten annas and the latter to six annas. Akaloo Chandra, the other member of the second party, is a lessee from Kristo Mohan Das. The Magistrate finds that Mohesh Lal of the first party obtained an agreement from the father of Krishto Mohan Das authorizing him to make collections of the whole of the tolls, and to divide the shares at the close of each year. Under this agreement he collected the whole of the tolls. Akaloo attempted to collect a six-annas share but was prevented, and has never been able to enforce his rights. The written statement of the first party fully admits that Kristo Mohan Das not only is entitled to a six-annas share of the collections from the market, but is actually in possession thereof. Indeed, if Mohesh Lal is collecting his share on his behalf, and giving it to him, it is difficult to see how Kristo Mohan Das’ possession can be denied. There is nothing to show that this agreement is irrevocable, and Mohesh Lal’s collection of tolls under it must, we think, be regarded, so far as the six-annas share is concerned, as a collection by him of Kristo Mohan Das’ tolls in the capacity of Kristo Mohan Das’ agent. This being so, we do not think that the order of the Magistrate can be regarded as within jurisdiction. He is entitled to decide which of the parties is in possession. Here the possession is undisputed, and the only dispute that exists relates to the machinery by which Kristo Mohan Das exercised his possession. The view that we take appears to us to be supported by the decision in the case of Nritta Gopal Singh v. Ghandi Charan Singh (1906) 10 C.W.N. 1088, the circumstances of which case are very similar to those of the case now before us. Doubtless, if Mohesh Lal was in possession in the capacity of a lessee or under some agreement that Kristo Mohan Das could not terminate, the position might be different, and in such a case an order under Section 145 of the Criminal Procedure Code might perhaps be permissible.
4. The learned Counsel for the opposite party relies on the case of Sri Mohan Thakur v. Nursing Mohan Thakur (1899) I.L.R. 27 Calc. 259. That case, however, was distinguished in the case which we have already cited, and the effect of the previous decision, on which it was to a great extent based, is somewhat weakened by the decision of the same learned Judges in the case of Tarujan Bibee v. Asamuddi Bepari (1900) 4 C.W.N. 426.
5. We think that the findings of the Magistrate are tantamount to a decision that the second party is in possession of the six annas of the disputed market, and, that being so, we think the Magistrate had no jurisdiction to pass orders under Section 145 of the Criminal Procedure Code. He cannot decide under that section the method by which the possession is to be exercised, or the agency by which the person in possession is to collect the profits. The Rule is accordingly made absolute. The costs, if paid, will be refunded to the petitioners.