Jwala Prasad, J.:— This is an application against an order of the Magistrate, dated the 9th December, 1921, directing proceedings under Section 145 to be drawn up with respect to 652 bighas of land in Mouza Amousi and land to be attached under the emergency Clause (4) of Section 145 of the Cr PC.
2. The village in which the land in dispute is situated belonged to one Ram Bahadur Singh, whose estate was brought under the management of the Court of Wards. Babu Kamla Sahay, a leading Mukhtear of Monghyr, took thica of the village for a term of years 1309 to 1314 (1902 to 1908), agreeing that he would give up all khudkasht land acquired by him during the lease. After the expiry of the lease, however, he refused to part with the possession of 823 bighas 1 katha 7 dhurs of land claiming that he had acquired jote therein by virtue of Hukumnamas given to him by the proprietor of the village. The Hukum Namas were said to be of the year 1902.
3. The Court of Wards then brought an action for ejecting Kamla Sahay from the land in question and in the alternative for having a fair and equitable rent assessed thereon. By that time Kamla Sahay was dead and his father, his brother and two of his step-brothers were impleaded as parties to the suit.
4. The suit was resisted only by Gobind Sahay, his own brother, on the ground that Kamla Sahay, was separate from the other defendants and that after his death the interest in the land in dispute devolved upon Gobind Sahay. That litigation terminated with the judgment of the Subordinate Judge dated the 11th of June, 1918, whereby the claim of the Court of Wards was dismissed upon the ground that Kamla Sahay, though a trespasser up to the year 1320, becoms a non-occupancy tenant from the year 1321.
5. On behalf of the Court of Wards a certificate was issued with respect to the arrears of rent due from the holding on the 19th of April, 1920, under the Behar and Orissa Public Demands Recovery Act (Act IV of 1914). The holding was sold on the 19th of April, 1920 and was purchased by Kamla Prasad Singh. The sale was confirmed after the disposal of the objection raised by Gobind Sahay.
6. On the 19th of April, 1920, the purchaser, Kamla Prasad Singh, obtained a sale certificate and an order for delivery of possession. The writ for delivery of possession was executed by the Nazir, report whereof was made by him on the 26th of November, 1920. The possession delivered by the Nazir was with the standing crops.
7. The judgment-debtors however, continued to throw obstacles in the enjoyment of the property by the auction-purchaser Kamla Prasad Singh. This led to a number of information lodged to the police by the Chaukidars, and ultimately to a proceeding under Section 144 of the Cr PC, on the 4th of April, 1921.
8. On the 27th of April, the Magistrate passed the following order:—
“Considered the case of Gobind Sahai, Harsahai Lal (Tahsildar of Gobind Sahai) does not contest. The 1st party has got the land by purchase at sale certificate. He has got sale certificate and has been regularly put in possession with standing crops on 26-4-20. He appropriated the same and has since then produced the present standing crops. The 2nd party ought to have gone to the Civil Court after having lost their certificate objection. They did not do so but are trying to harass the 1st party by setting up untenable claims. I confirm the Section 144 of the CPC notices issued against the 2nd party (of Harsahai Lal) and cancel and withdraw those issued against the 1st party.”
9. The trouble, however, did not cease and on the 8th of November, 1920, the Police reported for an action under Section 107 of the Code against Kamla Prasad Singh with respect to 150 bighas and Kutchery and against Gobind Sahay and others with respect to 652 bighas, the subject-matter of dispute in the present case.
10. The former property, that is, 150 bighas and the Kutchery in the village, was also sold at a certificate sale and was purchased by Kamla Prasad Singh. The sale certificate was, however, set aside on objection. Therefore, Kamla Prasad Singh had no right to the possession of 150 bighas and the Kutchery in the village. Dealing with the report of the police; the Magistrate recorded the following order:—
The position is made perfectly clear by the District Magistrate's order on a motion against my predecessor's order under Section 144 of the Cr PC. Kamla Prasad Singh is in lawful possession of an estate of some 650 bighas purchased by him at auction last year, of which he was given dakhal dehani. Gobind Sahay, the other party is in lawful possession of another estate of about 150 bighas, including the Kutchery, which was auctioned and bought by Kamla Prasad Singh but of which the sale was subsequently annulled. It appears from the S. I's reports that Gobind Sahay and 37 others now intend to try to loot the crops of the 650 bighas of which Kamla Prasad Singh is in possession. Issue notice under Section 144 of the Cr PC on them all, forbidding them to enter on any part of the 650 bighas estate, as from the S. I's report it is clear that there is serious danger of a breach of the peace and urgent action is necessary…. Issue notice under Section 144 of the Cr PC on Kamla Prasad Singh, his Gomashta and servants not to enter the Kutchery or any other portion of the 150 bighas estate, as there appears to be a danger to a serious breach of the peace and immediate action is necessary. Cause against both these orders may be shown on 21-11.
11. On the 21st of November, cause was shown by four of the 2nd party stating that the Civil Court sale and the dakhal dehani did not put them out of possession, and the matter was ordered to be further enquired into and to be put up at the spot on the 30th of November. On the same day a petition was filed on behalf of the 1st party stating that the police were in terfering with their possession, and the Magistrate passed the following order:—
“You had no orders to stop Babu Kamla Prasad and his men from going on the 652 bighas estate, but only on the 150 bighas estate. He should be allowed to cultivate the 652 bighas; vide my order dated 10-11, forbidding the opposite party to enter on them.”
12. On the 30th of November, the parties were ordered to file written statement. On the 5th December written statements were filed on behalf of the 2nd party, and after hearing both the parties the order in question for drawing up proceedings under Section 145 of the Code and attachment of the land in dispute was passed on the 9th of December.
13. There is no dispute in the present case with respect to 150 bighas and the Kutchery, inasmuch as the 1st party does not lay claim to it, the sale having been set aside. The order in question, therefore, relates to 652 bighas only. The proceeding drawn up details the survey plots of 652 bighas. The 1st party objects to the order in question on the ground that after the dakhal dehani of the civil Court the Magistrate had no jurisdiction to open the dispute between the parties by a proceeding under Section 144 of the Code. This contention appears to be well-founded. The possession in the present case was delivered with the standing crops, and the writ of delivery of possession shows that the possession was to be delivered under Order XXI, Rule 95 of the CPC under which the Court puts the purchaser into possession of the property if need be “by removing any person who refuses to vacate the same.” In a delivery of possession under that rule, not only the judgment-debtor but also any other person who may be then occupying has to be dispossessed. Now, a person not bound by the decree may resist the delivery of possession and such a resistance may be inquired into under Rules 97, 98 and 99 of the Code. If, as a result of the enquiry made under the aforesaid rules, a person other than the judgment-debtor is dispossessed of the property, he may make an application to the Court complaining of such dispossession and if the Court finds that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct the applicant to be put into possession of the property (vide Rule 101). The party aggrieved by the order of the Court passed under the abovementioned sections may institute a suit to establish his right to the present possession of the property as is provided for by Section 103 of the Code.
14. That rule concludes in the following words: “But, subject to the result of such suit if any, the order shall be conclusive.” Similar provisions have been made in the Bihar and Orissa Public Demands Recovery Act by Sections 33 to 37. Section 33 corresponds to Rule 103 of Order XXI of the Code. The words in both the sections are almost the same. Therefore, if the possession was delivered to the purchaser in the present case under Order XXI, Rule 95, as the writ of delivery explicitly mentions at the top of it and as the report of the Nazir of the 26th of November, 1920 clearly states, then the only remedy left to any person claiming any right to the present possession of the property was to apply to the Court which issued the writ of delivery of possession and confirmed the possession so delivered by the subsequent order of the 4th of December, 1920.
15. Failing the step to be taken under Section 37 of the Bihar and Orissa Public Demands Recovery Act, or Order 21, Rule 103 of the CPC the next remedy left to the members of the 2nd party is to institute a suit in a Civil Court, but, subject to the aforesaid proceedings, the order of the Court confirming the possession delivered by the Nazir in December, 1920, is final and conclusive an order which must be accepted as binding upon the criminal Courts and any Court which has to adjudicate upon this possession of the parties.
16. The 1st party purchaser has certainly to establish that possession was delivered to him by the Nazir under the writ issued by the Court. That is a question of fact and the 2nd party had a right to dispute this fact and put the 1st party purchaser to a proof of it. In other words, if the factum of the delivery of possession was raised as an issue in the present case, then certainly no order under Section 144 could be passed until that was decided and such an enquiry could possibly have taken place under Section 145 of the Cr PC.
17. In the present case the judgment-debtor and the members of his family, his Tahsildar and other servants, and in fact those claiming under him, have no right to dispute the delivery of possession as they were parties to the certificate and the sale proceedings and it was after the disposal of their objection that the sale was confirmed and the writ of delivery of possession was issued. The remaining members of the 2nd party who claim to be under raiyats or intermediate holders of the land in suit were not parties to the proceeding in the survey department which resulted in the sale of the property and the dakhal dehani and had a right to dispute the actual service of the dakhal dehani on the spot.
18. In the written statement filed in this Court (paragraphs 5 to 3) they clearly admit that they had full knowledge of the proceedings instituted by the purchaser for obtaining the possession of the property and state that the purchaser was attempting to take possession of the property and to dispossess the under tenants and that for that purpose he had actually come upon the scene and was putting up in the Kutchery of the judgment-debtor.
19. They further admit that they had coma to know that the dakhal dehani was to be served on the spot and that prior to that they went to the police complaining of the action of the purchaser to take khas possession of the property with standing crops and to dispossess them thereby. The result of this dispute between the purchaser and the judgment-debtor and the persons claiming to be under raiyats seems to have been taken notice of by the police, inasmuch as the Nazir in his report says that two constables were also present at the time when he was delivering possession of the property with standing crops, to the purchaser.
20. The Nazir further reports that he went from plot to plot and compared the same with the survey record of rights. There can, therefore, be no doubt that the possession in this case was publicly delivered with full notice to all the persons in possession of the property. It may be, as is alleged by the members of the 2nd party, that they were living two miles away, but that does not in the least take away the effect of the delivery of possession of which they had proper notice and knowledge.
21. Therefore upon the admission of the 2nd party in the written statement filed in this case the dakhal dehani is not disputed. The 2nd party do not claim, any right in the property subsequent to the dakhal dehani and all their rights of possession were lost by the dakhal dehani effected by the Court and they could establish their right, if any, only by a suit in a civil Court.
22. It was stated before me by Mr. Pal that they were under tenants of the land and were holding receipts from Kamla Sahay, the original debtor. Those receipts were filed in the Court below and have now been received here. They show that they relate to a period prior to the sale of the property and the dakhal-dehani. These receipts are up to the years 1320, 1325, and 1326. They admit that they derived their right from Kamla Sahay. Kamla Sahay was only a non-occupancy tenant of the land in dispute from 1321 (1914) in accordance with the decision of a case in Suit No. 3 of 1916, dated the 11th of June, 1918. These receipts, therefore, do not at all help the 2nd party in claiming possession of the property as against the Civil Court dakhal-dehani.
23. Mr. Pal has also drawn my attention to a judgment of the Criminal Court, dated the 5th of October, 1921 in which two of the members of the 2nd party Righu Mahto and Mushaheb Mahto were acquitted of offences of having removed crops from 4 bighas of the land in dispute. The Magistrate acquitted them observing that he disbelieved the occurrence altogether which had not been proved.
24. No doubt, he answered in the affirmative an issue raised by him as to whether they were under-tenants or not on the land in question. That judgment cannot in any way affect the Civil Court dakhaldehani which is binding upon the members of the opposite party. Similarly, the order of the Criminal Court dismissing the complaint of the 1st party cannot in any way nullify the effect of the Civil Court dakhal-dehani in the present case.
25. Therefore, though ordinarily a dispute of land should be enquired into in a proceeding under Section 145 of the Cr PC, yet when the possession in the law is vested in the 1st party as against any person claiming to be in possession of the property by reason of the writ of delivery of possession, I do not think that Section 145 is at all necessary. There is no bona fide claim of possession of the 2nd party. In other words, there is no dispute in law as to the possession of the property.
26. Section 145 summarily determines the right to possession. Order XXI, Rule 95 as well as the similar provisions in the Bihar and Orissa Public Demands Recovery Act, actually puts the purchaser into possession of the property, and a person claiming a right to the present possession of the property has either to move the Court delivering the possession or to go to the Civil Court.
27. The previous orders under Section 144 passed on two occasions in favour of the 1st party also establish clearly that the 1st party was allowed to be in possession of the property and to maintain the possession delivered by the Civil Court. Even on the 21st of November the Magistrate clearly held that the cultivation of 652 bighas should not be prevented by the police and that was the season of cultivating the land and sowing the seeds with respect to the present standing crop on the land.
28. For all these reasons I set aside the order of the Magistrate, in question, and direct that, if there be any danger to a breach of the peace, the Magistrate can take action under Section 107 of the Cr PC against the persons disturbing possession of the 1st party, the petitioner before us, who is in rightful possession of the property by means of the Civil Court dakhal-dehani.
29. The attachment of the crops must, therefore, be released and the crops, if any, must be made over to the 1st party.
30. Order set aside.