JUDGMENT
Iqbal Ahmad, J.
1. On the 20th of January 1927, in ignorance of the fact that the parties were represented by counsel in this Court, I, after going through the judgment of the learned Sessions Judge, accepted the reference made by him and actually signed my order of that date, After I had signed that order, but before it was sealed, it was brought to my notice by the office, that the parties were represented by counsel, and accordingly I directed the case to be put on the day’s list with a view to enable the counsel for the parties to argue the matter. After hearing the learned Counsel for the parties, I am still of opinion that on the findings of fact arrived at by the learned Magistrate, the view taken by the learned Sessions Judge is perfectly correct.
2. The village in dispute, viz., village Bania Para Mahraj is waqf property and its income is devoted to charitable and religious purposes. Ata Husain is mutwalli of eight annas and Abbas Ali, Mubarak Ali and Bibi Amiran are mutwallis of two annas eight pies each. Abbas Ali alone was appointed lambardar of the entire village, and has been a lambardar for some years. It appears that the relations between Abbas Ali and the tenants of the village, became strained and eventually the tenants, in the beginning of 1925, submitted a joint application to the Collector of Cawnpore, complaining against the highhanded actions of the lambardar and requested the Collector to enquire into his conduct. A Tahsildar was required by the Collector to enquire into the allegations made in the petition, and he submitted a report on the 20th of December 1925, to the effect that Shiva Gobind Tewari, Karinda of Abbas Ali:
was really committing excesses over the tenants and that the tenants were not willing to pay rents to him.
3. Eventually Abbas Ali, in pursuance of a direction given to him, executed a mukhtarnama on the 2nd February 1926, in favour of Shiva Gobind Tewari in order to clothe him with a legal authority to collect rents from the tenants.
4. The proceedings under Section 145 of the Criminal Procedure Code, that have given rise to this reference were initiated on the application of Khwaja Latif Husain Mukhtar-i-am of Abbas Ali on the 3rd of May, 1926. The allegations made in the application were, that, notwithstanding the fact that Abbas Ali, was the lambardar men of Ata Husain had gone to the village and were collecting rents and were roaming about armed in the village, and as such there was an apprehension of the breach of the peace. On this application the learned Magistrate passed an order on the 8th of May 1926, attaching the subject of dispute under Section 145(4) of the Criminal Procedure Code. Both the parties viz., Abbas Ali and Ata Husain put in written statements of their respective claims as respect the fact of actual possession of the subject of dispute.
5. The learned Magistrate observed in the course of his judgment that
there is no doubt that the whole tenantry of Bania Para Mahraj is up against the lambardar so much so that Syed Abbas Ali could not find practically a single witness from the village who could depose in his favour. On the other hand the number of witnesses on the other side who came from the village were legion…. It may be that long mismanagement and neglect of the tenantry and their rights has brought about this united affront against the well established lambardar of the village. It has been “a bloodless revolution” as the learned Counsel for Syed Ata Husainput it.
6. A perusal of the judgment of the learned Magistrate leaves no room for doubt that because of the strained relations between Abbas Ali and the tenants of the village, the latter willingly, without the show or use of any force on the part of Ata Husain, began to pay rent to him. But the learned Magistrate in view of the decisions in the matter of Sarbananda Basu Mozumdar v. Pran Sarkar Roy Chowdhri [1888] 15 Cal. 527. and Ram Dei v. Parbati [1890] A.W.N. 178., held that notwithstanding the payment of rent by the tenants to Ata Husain, the ouster of Abbas Ali must be deemed to have been illegal and he is entitled to the possession of the village inasmuch as in his capacity of a lambardar he has the right to collect rents and is responsible for the payment of land revenue to Government.
7. The learned Sessions Judge was of opinion that on the facts found by the learned Magistrate it cannot be held that Abbas Ali was “forcibly and wrongfully dispossessed” and the proviso to Clause (4) of Section 145 of the Criminal Procedure Code had no application to the case.
8. As I have already said I agree with the view taken by the learned Sessions Judge. In a proceeding under Section 145 of the Criminal Procedure Code the enquiry is limited to “the fact of actual possession of the subject of dispute” by the parties, and this enquiry is to be without reference to the merits of the claims of any such parties to a right to possess the subject of dispute. In view of the imperative provisions of Section 145(4) of the Criminal Procedure Code, it appears to me that the question as to which of the parties has a right to possess the subject of dispute is irrelevant in an enquiry under Section 145 of the Code. The proceedings under Section 145 of the Criminal Procedure Code are of a summary nature, and are taken with a view to prevent a breach of the peace and questions of title are not intended to come before a Magistrate for decision under that section and examination of questions of title is within the exclusive jurisdiction of the civil Court. This being so the learned Magistrate had to confine his attention to the question as to which party was in possession of the village in dispute, irrespective of the title of either party to collect rents from the tenants. It is undoubtedly a fact that Abbas Ali as a lambardar is entitled to collect rents from the tenants but if Ata Husain has succeeded in collecting rents from the tenants because the latter willingly began to pay the rents to him, it cannot be said that Ata Husain has “forcibly” dispossessed Abbas Ali. Ata Husain may have wrongfully dispossessed Abbas Ali, but he has certainly not done so forcibly.
9. The view that I take of the scope of the provision to Section 145(4) of the Criminal Procedure Code is in keeping with the view taken in the case of H.V. Low and Co. Ltd. v. M. Manindra Chandra Nandy A.I.R. 1925 Pat. 33. If the view taken by me is at variance with the decision in Sarbananda Basu Mozumdar v. Pran Sarkar Roy Chowdhari [1888] 15 Cal. 527. I for the reasons given above, am, with all respect, unable to agree with that decision.
10. The point that arises for consideration in the present case was not the point decided in the case of Ram Devi v. Parbati [1890] A.W.N. 178. In that case the property in dispute was attached by a Magistrate under Section 146 of the Criminal Procedure Code and not in accordance with Section 145(4) of the Criminal Procedure Code and this Court held that “for the purposes of Section 145 of the Criminal Procedure Code, it must be taken” that the lambardar was in possession. The order under Section 146 of the Criminal Procedure Code, attaching the property in dispute was attacked by both the lambardar and by the person who claimed to have actually collected the rents from tenants. It does not appear from the report of the case that it was found in that case, that rent had actually been collected by any person other than the lambardar, and this Court held that the lambardar being the person who has to collect the rent from the rent-payers must be treated as the party in possession and as such an order under Section 146 of the Criminal Procedure Code was not called for and the property attached must be made over to the lambardar.
11. For the reasons given above I accept the reference made by the learned Sessions Judge and setting aside the order of the learned Magistrate, dated the 24th of September 1926, declare, that Ata Husain is entitled to remain in possession of the village in dispute until evicted therefrom in due course of law.
