S. Singh v. B. Singh

Narayan, J.:— This is a reference by Mr. Ramjiwan Sinha, First Additional Sessions Judge of Patna recommending that the order of the learned Sub-divisional Magistrate of Dinapur drawing up a proceeding under section 145 of the Code of Criminal Procedure be set aside.

The disputed property is 21 bighas of land situate in mauza Balipankar, police-station Paliganj, district Patna. This land was given in usufructuary mortgage to two persons named Jamuna Prasad Singh and Sarswati Prasad Singh by virtue of two registered documents, dated 31st March 1944 which had been executed by Ramnandan Prasad Narayan Singh, the adoptive father of Krishnandan Prasad Narayan Singh, and his brother Shyamnandan Prasad Narayan Singh. On 27th June 1949 the mortgages were assigned to Bharath Singh and others by a regis: tered document. On 26th May 1950 Krishnandan Prasad Narayan Singh deposited the mortgage money under section 83 of the Transfer of Property Act, and notices with regard to the deposit were served on Bharath Singh and others who have been described in the letter of reference as opposite-party nos. 1 to 8, In July 1950 Sheonarayan Singh and others who have been referred to as petitioners in the letter of reference took settlement of the land in dispute from Krishnandan Prasad Narayan Singh and Shyamnandan Prasad Narayan Singh by virtue of two registered mukarrari deeds, dated 5th July 1950 and 14th July 1950. As in spite of the deposit opposite party nos. 1 to 8 did not give up possession of the land Sheonarayan Singh and others instituted a suit for redemption in the Court of the Third Subordinate Judge, Patna (Title Suit no. 132 of 1950), and they prayed for a decree for khas possession in their favour. This suit was decreed on 31st July 1951, and in execution of the decree possession was delivered to Sheonarayan Singh and others on 19th August 1951. Bharath Singh and others then filed an application which was labelled as an application under sections 47 and 151 of the Code of Civil Procedure, and they contended inter alia that the delivery of possession was a nominal one and that as a result of it possession had not been transferred to the decree-holders. The objections with regard to the delivery of possession were dismissed, but the learned Subordinate Judge observed as follows:—

“The legal objections, therefore, fail. The serving neon has reported that the possession has been delivered to the judgment-creditors who also support his report. In the circumstances I do not think it would serve any useful purpose by investigating whether in fact possession has been delivered or not. If the judgment debtors are in possession they are free to take advantage of it.”

In November 1951 Bharath Singh and others lodged an information with the Paliganj police in which they alleged that there was an apprehension of breach of peace. The police submitted a report to the learned Sub-divisional Magistrate for taking action under section 144. Criminal Procedure Code, and a notice under section 144, Criminal Procedure Code, was issued to all the parties concerned restraining them from going over the land. On 28th February 1952, the learned Magistrate ordered that “the matter should be determined under section 145, Criminal Procedure Code.” and he directed the issue of notice to the parties and an attachment of the land and its produce. Sheonarayan Singh and others then filed any, application before the learned Sessions Judge for making a recommendation to this Court that the order of the learned Magistrate be set aside, and the application was heard by the learned Additional Sessions Judge Mr. Ramjivan Sinha.

The learned Additional Sessions Judge is of the opinion that the learned Sub-divisional Magistrate should have respected the delivery of possession which has been made under the orders of the Court and should have helped Sheonarayan Singh and others in retaining possession of the property; and he has accordingly recommended that the entire order of the learned Magistrate should be set aside.

Because of the divergence of judicial opinion, with regard to the effect of a delivery of possession effected under the order of the Court in a proceeding under section 145 of the Code of Criminal Procedure, I took time, for examining the authorities on the subject, and after having considered all the important decisions of this Court and some of the other Courts which may have a bearing on the precise question raised in this case, I find that the question which arises in this reference can easily be disposed of. It is now well-settled that the question of possession that has to be determined in a proceeding under section 145 of the Code of Criminal Procedure is the question of actual possession with regard to the property in dispute. Actual possession certainly means actual physical possession, that is, the possession of the person who is cultivating the land or growing crops on it irrespective of whether he has any legal right to the land or the title to possess it. Because of the provisions of sub-section (4) of section 145 of the Code of Criminal Procedure, it cannot be contended that the power or the competency of the magistrate to interfere under section 145 of the Code of Criminal Procedure has anything to do with the right to possess the land. What concerns the magistrate is not the right to possess the subject-matter of dispute but the actual possession thereof on the date when he makes the order under sub-section (1) of section 145. At one time no doubt there was a sharp difference of opinion on the question as to whether a magistrate has jurisdiction to interfere when there is an order of the Civil Court on the question of possession or when the possession has been delivered to a person under the orders of the Civil Court. But the view that once there has been a delivery of possession by the Civil Court the magistrate has no jurisdiction to take action under section 145 of the Code of Criminal Procedure is no more sustainable. The view taken by the Full Bench of the Calcutta High Court in the well-known case of Agni Kumar Das v. Mantazaddin is now taken to be the correct view, and this decision has been followed or referred to with approval in some of the later decisions of this Court. This Calcutta case is a direct authority in support of the proposition that the words “actual possession” as used in section 145(1) of the Code of Criminal Procedure mean actual physical possession even though wrongful. In other words, a magistrate has complete jurisdiction to interfere even if he finds that a recent trespasser is in actual possession at the time of drawing up proceedings under section 145. But even in this case Rankin, C.J who delivered the main judgment observed as follows:

“It is the civil court's duty to give possession on the ground of right: it is the Magistrate's duty to maintain possession against force or show of force. To say that when a Magistrate, twelve months after a civil court peon has delivered possession, finds that the judgment-debtor is back in possession of the land, he is interrupting or interfering with the execution proceedings of the civil court, if he acts under section 145, is a violent abuse of language. On the other hand, it is true that, if on a given date the plaintiff has been put into possession by the civil court however inefficiently or irregularly, then on that date the plaintiff got possession as against the defendant. The defendant's actual possession has been broken as a matter of fact, even if only for the moment. This is as true of symbolical possession improperly so called as of any other possession, though what happened at the time of delivery may well be important on the question whether the plaintiff continued in possession very long or was ousted in the following week. Still it is an error to hold in such cases that the decree-holder was never in possession [Cf. Atul Hazrah's case (20 C.W.N 796)] or to ignore the delivery to him. This is a particularly grievous error in cases of boundary disputes or disputes as to outlying portions of the land delivered. Cases in which it has been said that the Magistrate has interfered with or nullified the civil court's degree will, on examination, be found to be cases where the Magistrate has come to a wrong finding on the fact of possession by reason of this error.”

Mukherji, J. in this case made the following observation which, in my opinion, should be of great assistance to us in determining the point raised in this reference:—

“For a dispute as to actual possession to be effectively determined, it is not enough that there has been a decree determining the rights of the parties, unless it is a decree by which a suit for declaration of right and recovery or confirmation of possession has been dismissed, thus putting an end to the plaintiff's rights and claim for possession for ever and beyond all controversy. In cases of decrees which merely determine the rights of the parties, even if they decide that one party is entitled to possession an against the other, the dispute as to possession still remains; and it is only by delivery of possession if execution of such a decree and in favour of one party as against another that the dispute can be said to in determined beyond any controversy. Such possession, however, must be actual or khas possession and not merely symbolical possession, because it is actual possession and not a right to possession that section 145 is concerned with. If aril these requisites ares present, there is no dispute in the eye of law, though in point of fact there may be one. Then again the nature of the enquiry contemplated by the section shows that the respective claims as respects the fact of actual possession is to be investigated. A claim when put forward before a tribunal involves an, idea of its capability to be adjudicated upon. I find it exceedingly difficult to conceive how one can put forward a claim before any court saying: ‘There is a serious apprehension of a breach of peace. I have been turned out of possession by the civil court. I am still in possession by some means or other. I cannot get the civil court to decide on my right to possession again. Please declare my possession, maintain the possession that I have, forbid my opponent to disturb it and ask him to go to the civil court and to request that court to reopen and reconsider the matter.’ That in substance is what a claim of this character comes to. Widely different is the possession of an ordinary trespasser or wrongdoer, whose claim has never been decided by a competent court; and between him and the rightful owner, the criminal court can hardly give any preference to either, except on the footing of actual possession, because to attempt to go on any other footing would be to do the very thing that the law forbids, namely, to decide on the merits of the claim as to the right to possess.”

For the purposes of this case we must note the particular observation that the nature of the enquiry contemplated by the section shows that the respective claim as respects the fact of actual possession is to be investigated A Full Bench of this; Court had also to consider this question as early as in the year 1916. [See Parmeshwar Singh v. Kailaspati.] Of course, this decision was given at a time when subjection (3) of section 435, Criminal Procedure Code, had not been deleted. Before the amendment by the Amendment Act of 1923 proceedings under Chapter XII of the Criminal Procedure Code were not liable to revision by any Court, so that the High Court in the exercise of its revisional jurisdiction under section 439 of the Code was not competent to revise an order passed under Chapter XII. The present position is that orders under Chapter XII can be revised by the High Court not only on the question of jurisdiction but also on the ground that they are illegal or erroneous. But even in that Full Bench decision in which the High Court was exercising powers conferred on it by section 107 of the Government of India Act, Sharfuddin, J. observed as follows:

“An order passed under section 145 is in its nature a summary order and it is a preventive measure. The Magistrate gets jurisdiction if there is an apprehension of a breach of the peace with regard to any land or water and the party found to be in possession may be declared entitled to remain in possession until evicted therefrom by a competent Court. A Civil Court decree in favour of a party will become infructuous if the Magistrate interferes with it but the Magistrate is not bound to maintain it blindly. If after the passing of the decree the Magistrate finds on evidence that the party's possession has been disturbed or that the possession has changed hands he has jurisdiction but this will be a matter of fact, which the Magistrate has to decide. If he comes to a finding, which would be a finding of fact, that such possession has been disturbed since the decree was passed he has jurisdiction in a proceeding under section 145 to pass orders irrespective of the Civil Court decree. In the case of a Civil Court decree of very recent date where there is no evidence to shew disturbance or change of possession since the decree the Magistrate is bound to respect the Civil Court decree and if he does not do so he acts without jurisdiction.”

In Behari Gir v. Rani Bhubaneswari Koer Sultan Ahmed, J., following three decisions of the Calcutta High Court reported in Daulat Koer v. Rameswari Koeri(2), Kunja Behari Das v. Kheira Pal Singh(3) and Atul Hazrah v. Uma Charan Chongdar(4) held that where possession of immoveable property has been delivered to an auction-purchaser under Order XXI, rule 35, of the Code of Civil Procedure, a magistrate acts without jurisdiction in proceeding under section 145 of the Code of Criminal Procedure, and in making an order against the auction purchaser under that section. The facts of that case as indicated in his Lordship's judgment were that possession had been delivered under Order XXI, rule 35 of the Code of Civil Procedure, and his Lordship took the view that there was no jurisdiction in the Magistrate to interfere because of the delivery of possession under Order XXI, rule 35, though the magistrate's jurisdiction can be attracted in spite of delivery of possession when possession is delivered under Order XXI, rule 36. In view of the later decisions, I say with respect, his. Lordship's dictum that the magistrate has no jurisdiction to interfere after a recent delivery of possession cannot be followed, but certainly even the later decisions lay down that a recent delivery of possession is bound to be respected, by the magistrate. As was pointed out by Mohamad Noor, J., in Rajendra Narayan Bhanja Deo v. Chaudhuri Chintamani Mahapatra a magistrate in spite of delivery of possession has jurisdiction to start a case under section 145, but no hard and fast rule can be laid down and a magistrate has discretion when there is an apprehension of a breach of the peace to choose either section 145 or section 107. A Division Bench of the Calcutta High Court in Abhoy Mondal v. Basu Rai laid down that in a proceeding under section 145, Criminal Procedure Code, the magistrate cannot go behind the decision of the Civil Court and cannot ignore the decree even though the Court which passed the decree had no jurisdiction over the subject-matter of the suit. In Bahali Singh v. Safayat Gop Manohar Lall, J., following certain earlier decisions of this Court, laid down that when the magistrate's finding is vitiated by, his not keeping in view important facts, such as the writ of delivery of possession issued by the Civil. Court, the High Court will interfere, even though the magistrate has committed no error as to jurisdiction. The ratio decidendi of the latest authoritative decisions on the subject, therefore, appears to be that in spite of a recent delivery of possession, the jurisdiction of the magistrate to interfere under section 145 is not ousted but that the magistrate has to give due Weight to the recent delivery of possession while disposing of the proceeding under section 145. It is also, important to remember in this connection that the Privy Council in, Thakur Sri Sri Radha Krishna Chanderji v. Ram Bahadur laid down that symbolical possession availed to dispossess the defendants or the judgment-debtors sufficiently, because they were parties to the proceedings in which it was ordered and “given”. This Privy Council decision has been followed in several cases, and it has been laid down that even when the delivery of possession is under rule 36 or rule 96 of Order XXI of the Code of Civil Procedure, that is, when the property is in possession of someone on behalf of the judgment-debtor who is not liable to be disposed under the writ of dakhaldehani, the service of the writ effectively dispossesses the judgment-debtor, and he cannot interfere with the man to whom possession has been delivered under the orders of the Court. Though it was a criminal appeal in the case of Mahabir Singh v. Emperor it was pointed out that a judgment-debtor whose property had been sold in execution of a decree could not claim a right to assault the auction-purchaser who had been put in possession of the property by the Civil Court. This is in consonance with the observation of Rankin, C.J in the case of Agni Kumar Das that it is the Civil Court's duty to give possession on the ground of right and it is the magistrate's duty to maintain possession against force or show of force. In Ramanand v. Bindhachal a Division Bench of this Court (the judgment of the Bench having been delivered by me) held, after considering several relevant decisions on the subject, that where in execution of a decree, symbolical possession is delivered of immoveable property to a person entitled to possession thereof, and such a person brings a suit for, recovery of actual possession the symbolical possession will be deemed equivalent to actual possession as against the judgment-debtor or his representatives and the suit will be deemed to have been brought in time if it has been brought within twelve years from the date of the symbolical possession. The Privy Council decision in Thakur Sri Sri Radha Krishna Chanderji was followed by us in this case. The position therefore, is that as against the judgment-debtors or their representatives even symbolical possession amount's to actual possession. A magistrate, though he has jurisdiction to interfere even in the case of a recent delivery of possession, has to take into consideration the circumstance that there has been a recent delivery of possession with regard to the subject of the dispute. The advantage which may accrue to a third person, that is, a person who is no party to the execution proceeding cannot accrue to the judgment-debtor or his representatives even in a proceeding under section 145 of the Code of Criminal Procedure; and it will be open to the High Court in revision to interfere, if a recent delivery of possession has been disregarded, on the ground that the order of the magistrate is improper or erroneous. This appears to me to be the present legal position, and though I cannot agree with the learned Additional Sessions Judge in his view that because of a recent delivery of possession the magistrate had no jurisdiction to draw up a proceeding under section 145, Criminal Procedure Code, he is right if he thinks that the learned Sub-divisional Magistrate should have respected the delivery of possession made in favour of Sheonarayan Singh and others. The question, however, still arises as to whether I will be justified in interfering at the present stage of the proceeding. I have already referred to the observation of Mukherji, J. in the case of Agni Kumar Das that the nature of the enquiry contemplated by section 145 shows that the respective claims as respects the fact of actual possession has to be investigated and that a claim when put forward before a tribunal involves an idea of its capability to be adjudicated upon. This, I think, is the view which has been consistently taken in the decisions of this Court. I respectfully agree with the decision of Rowland, J. in Raj Nandan Missir v. Chhedi Thakur that it will be premature for the High Court to interfere before the magistrate has decided the case. If the magistrate's decision is ultimately found to be grossly erroneous, the High Court under the existing sections 435 and 439 of the Criminal Procedure Code will have the jurisdiction to interfere with it. As was pointed out by Jwala Prasad and Coutts, JJ. in Ram Krishna Singh v. King-Emperor, in order to find out as to whether the possession was disputed or not the magistrate could investigate as to the actual service of the writ of delivery of possession, but if once a dakhaldehani was proved to have been effected to the satisfaction of the magistrate, it was his bounden duty to maintain the possession of the person in whose favour the dakhaldehani was effected. In Kamla Prasad Singh v. Gobind Sahay also it was pointed out that the first party purchaser has certainly to establish that possession was delivered to him by the Nazir under the writ issued by the Court and that the second party has a right to dispute this fact and put the first party purchaser to a proof of it. In other words if the factum of delivery of possession is disputed, then certainly the magistrate has to decide whether possession was actually delivered or not; and such an enquiry is within the scope of section 145 of the Code of Criminal Procedure. We must agree with the Counsel for the opposite-party that in this case it was not admitted that possession had actually been delivered by the bailiff of the Court. The learned Additional Subordinate Judge by his order, dated 11th September 1951 could dispose of the points of law which had been raised against the alleged delivery of possession, but he refused to decide the question as to whether as a result of the dakhaldehani possession had been actually delivered or not. In other words, the learned Additional Subordinate Judge in the miscellaneous proceeding was not inclined to decide the question as to whether there was a real delivery of possession or a nominal delivery of possession. If the judgment-debtors contend that the peon's report is not correct and that there was no dakhaldehani on the spot, then certainly that is a question which has to be investigated, and it is within the province of the magistrate to investigate this question in the proceeding under section 145 of the Code of Criminal Procedure. It is another thing that after the delivery of possession is proved the magistrate has to respect the delivery of possession, but so long as the delivery of possession is not proved, it is absolutely within the competence of the magistrate to draw up a proceeding under section 145 of the Criminal Procedure Code in the event of an apprehension of a breach of peace and to investigate whether a dakhaldehani was actually effected on the spot or not. A fraudulent service of process is net an unknown thing in this part of the country, and when the judgment-debtors in this case were contending that actually there had been no delivery of possession, this question had to be investigated. I agree with the learned Additional Sessions Judge that the learned Sub-divisional Magistrate, should not at all be influenced by the observation of the learned Additional Subordinate Judge in his judgment by which he disposed of the objections against the writ of delivery of possession to the following effect:

“The serving peon has reported that the possession has been delivered to the judgment-creditor who also support his report. In the circumstances I do not think it would serve any useful purpose by investigating whether in fact possession has been delivered or not. If the Judgment-debtors are in possession they are free to take, advantage of it.”

The question whether there was a dakhaldehani on the spot or not has to be investigated by the learned Magistrate, even though the trouble has started very soon after the delivery of possession. The learned Additional Sessions Judge has rightly pointed out that opposite party nos. 1 to 8 were admittedly parties to the decree and were bound by the decree and the dakhaldehani which might have been effected in execution of the decree. So far as the other opposite parties, namely, opposite-party nos. 9 to 42 are concerned, the learned Judge has pointed out that neither in the Title Suit nor in the miscellaneous case which was disposed of by the learned Additional Subordinate Judge by his order, dated the 11th September 1951, it has been alleged that there had been a batai settlement of the land and that the bataidars were in actual possession of it. For the guidance of the learned Magistrate I have already referred to the decision which lay down that a delivery of possession will be effective as against the judgment-debtor or his representatives. The question of possession will now be decided by the learned Magistrate in the light of the observations made above.

This reference is discharged.

Ahmad, J.:— I entirely agree with the judgment of my learned brother. It is one thing to say that the magistrate has no jurisdiction to start a proceeding under section 145 of the Code of Criminal Procedure and it is entirely different to say that in the exercise of that jurisdiction he should give proper weight to an order passed by a competent civil court, especially when the order is a recent one. What, however, I feel is that if the order passed by the civil court is to be respected send maintained especially when there is no allegation that the possession delivered by the civil court has been subsequently disturbed, it is desirable in those circumstances that the magistrate should draw a proceeding under section 107 of the Code of Criminal Procedure against the party who wants to negative the possession given by the civil court and not to start a proceeding under section 145 of the Code of Criminal Procedure in order to avoid the likelihood of a breach of the peace. That would save the rightful person, who has been given possession by the civil court, from much of harassment. If, however, in the course of a proceeding under section 107 of the Code of Criminal Procedure it appears to the magistrate that the delivery of possession claimed by the party, in whose favour the possession is said to have been given by the civil court, is void, the magistrate may convert the proceeding under section 107 into one under section 145 of the Code of Criminal Procedure to decide the dispute for land and also to avoid the likelihood of a breach of the peace. This I say on the principle that prima facie the order passed by the civil court giving delivery of possession to one of the parties should have prima facie a presumption of correctness in its favour.

K.D

Reference discharged.