JUDGMENT
Graham, J.
1. In this case a rule was issued calling on the Deputy Commissioner of Sylhet and the opposite party to show cause why the order of the Extra Assistant Commissioner of Sylhet dated 6th December 1926 under Section 145, Criminal P.C., declaring the 2nd party (now the opposite party) to be entitled to retain possession of certain land should not be set aside on the ground that the learned Magistrate erred in law in not upholding the possession delivered to the petitioner (1st party) under a civil Court decree against the opposite party Piran Ali.
2. On the particular facts in this case the Magistrate’s order is in my opinion manifestly wrong, and he ought, I think, to have maintained the decree of the civil Court, and the possession given by it subsequent thereto Atal Hazra v. Uma Charan [1916] 20 C.W.N. 763, Akhoy Mondal v. Basu Bai A.I.R. 1923 Cal. 176, Kunja v. Khetra [1902] 29 Cal. 208. The petitioner, 1st party, obtained possession of the land in question through the civil Court on 23rd July 1925 and it is clear that the opposite party No. 1. Piran Ali (opposite parties 2 and 3 are his sons) has throughout wilfully ignored the decree, and is treating the litigation as if it had never taken place. In my judgment it is not right that the criminal Court should support him in this attitude.
3. The view taken in the Courts below seems to be that, however much right may be on the side of the 1st party, the only thing that counts is actual possession, and that, possession being with the 2nd party, that party must succeed, no matter how that possession may have been obtained. I cannot persuade myself that this is sound law. Possession, as I understand the word, means lawful possession, and not possession taken by force in defiance of law. No Court ought in my opinion to recognize such possession as is claimed here by the 2nd party. The law is proverbially an ass, but I do not think it can for a moment countenance such a state of things as must necessarily follow if the decision, which has been arrived at in this case, is affirmed. The land in question was formerly in dispute between the parties, and one of them went to the civil Court, and in. due course obtained a decree followed by possession. The 2nd party ignoring that decision again took possession of the land, and upon the 1st party complaining to the Magistrate he is informed that though he has right on his side, the and party is in de facto possession and, that being to, is entitled to retain such possession until evicted in due course of law. In other words the 1st party, having already been successful in the civil litigation, is to be again compelled to have recourse to the civil Court, and that within about a year of the passing of the decree (the police report was dated 29th May 1926). From the point of view of the 1st party the position seems to be a hopeless one, and the result appears to be due to making a fettish of possession. No doubt it is true that in cases under Section 145, Criminal P.C., possession of the land in dispute is the only point to be decided. But it must, I think, be lawful possession which the Court can recognize, and not the, possession of a trespasser and wrong doer.
4. There is another aspect of the matter. The section relates to disputes regarding land. In this instance the dispute had been finally decided in the civil Court. That being so, there was not, properly speaking, any dispute, the Magistrate had no jurisdiction, and the proper course would, it seems to me, have been to take steps under Section 107, Criminal P.C., against the aggressive party or parties.
5. For the above reasons I would make the rule absolute on the ground on which it was issued, and set aside the order declaring the 2nd party to be in possession of the land, leaving it to the Magistrate to proceed under Section 107, Criminal P.C. if the adoption of that course is deemed to be necessary.
6. As my learned brother is of a different opinion the case will be laid before the Chief Justice in order that it may be referred to a third Judge.
Cammiade, J.
7. Briefly the facts found by the Magistrate are as follows:
The land in dispute is the holding of Piran Ali, the second party. It was sold in execution of a decree and was purchased by the decree-holder, Mathura Nath Das. The sale was confirmed on 10th May 1923; Mathura sold his rights to the first party by two deeds, executed respectively in October and November 1923. The first party obtained delivery of possession through Court on 8th July 1925. The property consists of about 14 bighas of land, comprising arable lands and two homesteads in the occupation of the second party. The latter were not removed from the homesteads at the time delivery of possession was given. All that the peon did was to read his writ and plant a bamboo on the arable land. Aus paddy was standing on that land at the time possession was delivered. The second party reaped this paddy. The first party instituted criminal proceedings, which were dismissed. The second party then grew winter paddy on the land and harvested it. The first party attempted fro take ‘possession in April and was resisted. He then applied for possession’ under the provisions of Section 145, Criminal P.C.
8. These being the findings, the Magistrate was, in my opinion, right in declaring that the second party were in possession.
9. The law provides summary remedies for the recovery of possession when the party in possession is ousted unlawfully. These remedies are provided in Section 145, Criminal P.C., and Section 9, Specific Relief Act. A person entitled to these remedies must apply to the Court within the time prescribed; and, if he fails to apply within such time, he can only fall back on the ordinary remedy, namely a, suit.
10. It is expressly provided in Section 145 that the Magistrate will, uphold the possession of the person whom he finds to be in possession, except in cases when one of the parties had been ousted from possession, within two months of the date of the Magistrate’s order passed Under the first sub-section of that section. In this case, the Magistrate’s order is dated 3rd June 1926. As the Magistrate has founds that the second party had been in possession at least from the month of August previous, no other order was possible except the one the Magistrate has passed. In these circumstances I would discharge this rule.
Cuming, J.
11. This rule was granted on the following ground:
That the learned Magistrate erred in law in not upholding the possession delivered to the petitioner under the civil Court decree against the opposite party, Piran Ali.
12. Owing to a difference of opinion between my learned brother Graham and my learned brother Cammiade the case has been laid before me for decision.
13. The facts will appear to be these:
The land in dispute was originally the holding of Piran Ali, the second party. The land was mortgaged. The mortgagee obtained a decree on his mortgage, sold the property and purchased it himself. He sold his interest to the present first party and the first party applied to the Court and was put in possession on 23rd July 1925 by the planting of a bamboo. In other words he was given symbolical possession. The second party remained in actual possession. Then, on 30th April 1926, the first party applied to the Magistrate. Proceedings were drawn up under Section 145. The Magistrate found the second party in possession and declared him entitled to possession.
14. Against this order the rule has been obtained.
The first party argues that as possession was delivered to him on 23rd July 1925 by the civil Court the Magistrate is bound to maintain that possession.
15. The opposite party contends that all the Magistrate has to determine is who is in actual possession at the time or within two months of the proceeding and to declare him to be entitled to possession. Each party has cited numerous rulings to support his contention. The first party relies on the cases reported Shama Sundari v. Jardine, Skinner and [1866] 6 W.R. Cr. 10, Rai Mohan Roy v. J.P. Wise [1871] 16 W.R. Cr. 10, Ranee Gunge Coal Association Ltd. v. Hemlal [1875] 24 W.R. Cr. 17, In re. Chutrapput Singh [1879] 5 C.L.R. 200, Gobind Chunder Moitra v. Abdul Sayad [1881] 6 Cal. 835, Akhoy Mondal v. Basu Rat A.I.R. 1923 Cal. 176, Atal Hazara v. Uma Charan [1916] 20 C.W.N. 796, Gulraj v. Bhatoo [1905] 32 Cal. 796, Kedar v. Lalit (1906) 2 C.L.J. 147 and Gordan Sims v. Johurry Lal [1901] 5 C.W.N. 563, while the second party relies on Lowsan Santal v. Kali Charan Santal (1904) 8 C.W.N. 719, Atal v. Sri Nath (1919) 23 C.W.N. 982, Hazari Khan v. Nafar Chandra [1918] 22 C.W.N. 479, Rakhal Dolni v. Nakham Lal , Kulada v. Danesh , Shahabaj v. Bhajahari A.I.R. 1922 Cal. 364. A consideration of these decisions undoubtedly would go to show that the rulings cited be each party support the view he would have taken and in this view the matter probably should go before a Full Court. But as a Judge sitting alone, I have no power to make such a reference. So far as I am concerned this is perhaps fortunate, for in view of the contrary decisions I am able to approach the question unfettered by former decisions and to decide it on the plain and simple words of the section itself. With great respect-to the learned Judges who are responsible for some of the decisions I cannot but feel that the exact words of the section and the purpose for which it was enacted I have been sometimes lost sight of. The aim and object of the section is in my opinion the maintenance and preservation of the public peace and nothing else. No. rights are to be decided under it. It is no doubt for reason that the revisional power of the High Court was expressly excluded under the Code before 1923. I will, therefore, cite the material portions of the section which are these:
Whenever a District Magistrate, Sub-divisional Magistrate or Magistrate of the 1st Class is satisfied from a police report or 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 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 within a time to be fixed by such Magistrate and put in written statements of their respective claim as respects the facts of actual possession of the subject in dispute.
16. The word “actual” requires to be heavily underlined. It is the omission I think to consider She meaning of the word “actual” which has led to the-numerous conflicting rulings in this Court.
17. Sub-sections (2) and (3) are not material.
18. Sub-section (4) runs:
The Magistrate shall without reference to the merits of the claim of any such party to a right to possess the subject of dispute peruse…and if possible decide whether any and which of the parties was at the date of the order before mentioned in suoh possession of the said subject.
19. Proviso (1) may be also noted. It is not necessary to cite it at length. The material portions of this sub-section are the words I have underlined. What is abundantly clear is, therefore, that what the Magistrate has to decide is, who is in actual possession.
20. The words ‘such’ possession obviously refer to the actual possession mentioned in Sub-section (1). He is not to decide the merits of the claim of the parties to a right to possess the subject of dispute. The section specifically states he is not to. What then does actual possession mean. As I understand it, it means actual physical possession. It means the possession of the person who has, if I may put it so, his feet on the land, who is ploughing it, sowing or growing crops on it entirely irrespective of whether he has any title or right to possess it. Actual possession is not the same as a right to possession nor does it mean lawful or legal possession. If the Code had meant lawful or legal, possession I presume it would have said so. The very fact that the expression actual possession is used shows that the legislature was contemplating a possession other than lawful or legal. This is clear from Sub-section (4) for the Magistrate is not to determine who has a right to possess.
21. The person who has obtained what is known as symbolical possession is not necessarily in actual possession. If he were, the expression “symbolical” would be meaningless. If the Magistrate must maintain, as has been held in some decisions, the possession given through the civil Court he must at once do what the section expressly says he shall not, namely, determine who has a right to possession and to whom the civil Court has given possession, in other words determine the right to possession.
22. Actual possession is not necessarily lawful possession. It may be the possession of a trespasser without any title whatever.
23. The Magistrate is expressly prohibited from determining whether the possession is lawful or not, in other words, whether the person in possession has any title or right and to say that the Court has to decide whether the possession is lawful or not, that is to say, that the Court is to do the very thing which the section’s expressly prohibits him from doing.
24. To contend that because the civil18 Court has decided who has a right to possession that there is no longer any dispute is to ignore realities.
25. There is no doubt possibly no dispute as to title. But that does not prevent there being a dispute as to who is in possession. What the civil Court had decided in this case was who had a right to possession, not who was in possession. It is not correct to say that in these circumstances the decree-holder or person having a right to possession has no remedies. He had. They will be found in Order 21, Rules 97, 98, 99, Civil P.C. It is for the decree-holder to avail himself off the provision of the Code to obtain real and effectual possession. I, therefore, agree with my learned brother Cammiade. The rule stands discharged.
