Paramhans Pande v. Sheodarshan Singh

Daniels, J.:— This is an application for revision of an order passed under section 146 of the Criminal Procedure Code. The proceedings have been very protracted. It appears that they were first started in December, 1924, on the application of the first party, Babu Sheodarshan Singh and others. The magistrate dismissed the application on the 27th of February, 1925, nearly a year ago, on the ground that section 145 was not applicable. He appears then to have taken proceedings under section 144. These were set aside by the District Magistrate who thought that action under section 145 was the proper course. The proceedings were then re-started and have been concluded by the order under revision. In this order the Deputy Magistrate states that he is unable to determine which party is in possession and he therefore attaches the land and appoints the Tahsildar as receiver.

The pleas urged in revision are first, that section 145 is inapplicable where neither party is entitled to exclusive possession, and, secondly, that section 146 is inapplicable because the rights of the parties have already been determined by a competent court. The property in dispute consists of a plot of air land, No. 2825, with an area of ten bighas. The first party and Bishan Narain Singh and others of the second party are joint proprietors of the land in the proportion of one-third and two-thirds. The other members of the second party are either mortgagees or permanent lessees. The members of the first party executed a usufructuary mortgage of their one-third share in favour of their co-sharers, the members of the second party. They subsequently sued for redemption and got a decree on the 16th of September, 1922. A year later they got joint possession from the courts. A decree for joint possession is executed in accordance with order XXI, rule 35. It does not entitle the person obtaining it to actually enter on the land and proceed to cultivate it, or displace the persons who are doing so. It is merely enforced by a proclamation on the property and in the locality, which entitles the persons to whom possession is thus given either to obtain partition or to claim the profits of the property from the person in possession of their share. Although the Deputy Magistrate finds himself unable to determine the question of possession, it appears to me highly improbable that the first party ever obtained any actual possession under this decree. The fact remains, however, that it is difficult to see how section 146 can be applied where the civil courts has not only determined the rights of the parties, but has also determined the possession so far as it was in its power to do so. The civil court having already awarded joint possession to the first party, the only relief for which he could apply to the civil court is a relief which has already been granted to him. It is said that he could apply for a partition of the property. This no doubt is true, but such an application would not be an application to the civil court to determine the title or the right to possession. It would be an application to convert a joint proprietary right into a right of severalty in a portion of the property. In my view therefore, the order of attachment passed, by the court below in this case was not justified by the terms of the section on a reasonable interpretation of it and I set it aside.

Order set aside.