Graham, J.:— ln 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 Sylh?t, dated the 6th December, 1926, under s. 115 of the Code of Criminal Procedure 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: Atul Hazra v. Uma Charan Changdar(1), Akhoy Mondal v. Basu Rai(2) and Kunja Behari Das v. Khetra Pal Singh(3). The petitioner, 1st party, obtained possession of the land in question through the Civil Court on the 23rd July 1925, and it is clear that the opposite party No. 1 Piran Ali (opposite parties Nos. 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. 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 recognise such possession as is claimed here by the 2nd party. The law is pro-verbially 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 2nd party is in de facto possession, and, that being so, 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 the 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 fetish of possession. No doubt, it is true that in cases under s. 145 of the Code of Criminal Procedure 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 recognise, and not the possession of a trespasser and wrong-doer.

3. 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 s. 107 of the Code of Criminal Procedure against the aggressive party or parties.

4. For the above reasons 1 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 s. 107 of the Code of Criminal Procedure, if the adoption of that course is deemed to be necessary.

5. 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.:— Briefly the facts found by the Magistrate are as follows:—

The land in dispute is the holding of Piran Ali, the 2nd party. It was sold in execution of a decree and was purchased by the decree-holder, Mathura Nath Das. The sale was confirmed on the 10th of May, 1923, Mutbura sold his rights to the 1st darty by two deeds executed respectively in October and November, 1923. The 1st party obtained delivery of possession through Court on the 8th of July, 1925. The property consists of about 14 bighas of land, comprising arable lands and two homesteads in the occupation of the 2nd party. The latter were not removed from the homestead 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 2nd party reaped this paddy. The 1st party instituted criminal proceedings, which were dismissed. The 2nd party then grew winter paddy on the land and harvested it. The 1st party attempted to take possession in April and was resisted. He then applied for possession under the provisions of s. 115 of the Criminal Procedure Code.

7. These being the findings, the Magistrate was, in my opinion, right in declaring that the 2nd party were in possession.

8. The law provides summary remedies for the recovery of possession when the party in possession is ousted unlawfully. These remedies are provided in s. 145 of the Code of Criminal Procedure and s. 9 of the 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.

9. It, is expressly provided in s. 145 that the Magistrate will uphold the possession of the person whom he finds to be in possessions, except in cases when one of the parties had been ousted fsom 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 osder is dated the 3rd of June, 1926. As the Magistrate haa found that the 2nd party had been in posssssion 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.

10. Their Lorpships having differed in opinion the case came before Mr. Justice Cuming who delivered the following.

JUDGMENT

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.” 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.

12. The facts will appear to be these: The land in dispute was originally the holding of Piran Ali the 2nd party. The land was mortgaged. The mortgagee obtained a decree on his mortgage, sold the property and purchased it himslf. He sold his interest to the present 1st party and the 1st party applied to the Court and was put in possession on the 23rd July, 1925, by the planting of a bamboo. In other words he was given symbolical possession. The 2nd party remained in actual possession. Then on 30th April, 1926, the 1st party applied to the Magistrate. Proceedings were drawn up under s. 145. The Magistrate found the 2nd party in possession and declared him entitled to possession.

13. Against this order the Rule, has been obtained.

14. The 1st party argues that as possession was delivered to him on the 23rd July, 1925, by the Civil Court the Magistrate is bound to maintain the 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 1st party relies on the cases reported as Shama Soondery Debia v. Jardine Skinner & Co.(4), Rai Mohan Roy v. Wise(5), Duriao Singh v. Uma Proshad(6), In the matter of Chutra-put Singh(7), Gobind Chunder Moitra v. Abdul Sayeii(8), Akhoy Mondal v. Basu Rai, Atul Hazra v. Uma Gharan Changdar. Gulraj Marwari v. Sheik Bhatoo(9), Kedar Prasanna Lahiri v. Lalit Mandal(10) and Gordon Sims v. Johurry Lal(11) while the 2nd party relies on Lowsen Santal v. Kali Charan Santal(12), Atul Chandra Mandal v. Srinath Laik(13), Hazari Khan v. Nafar Chandra Pal Chowdry(14), Rakhal Dolui v. Makhan Lal Ghose(15), Kulada Kinkar Roy v. Danesh Mir(16), Shahabaj Mandal v. Bhajahari Nath(17). A consideration of these decisions undoubtedly would go to show that the rulings cited by 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 ou 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 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 this reason that the revisional power of the High Court was expressly excluded under the Code before 123. I will, therefore, cite the material portions of the section which are these: “Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First 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 claims as respects the fact of actual possession of the subject of dispute.”

16. The word “actual” requires to be heavily underlined. It is the omission I, think, to consider the 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, Sub-sections (4) runs:—

“The Magistral eshall then, without reference to the merits of the claims of any of such parties to a right to possess the subject of dispute, peruse and, if possible, decide whether anv and which of the parties was at the date of the order before mentioned in such possession the said subject.” 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.

18. The word such possession obviously refers to the actual possession mentioned in sub-s. (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 sowing or grown? crcps on it entirely irrespective of whttler 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 Cede had meant lawful or legal possession I presume it would have said so. The very fact that the expression ‘actual postession’ is used shows that the Legislature was contemplating a possession other than lawful or legal. This is clear from sub-s (4) for the Magistrate is nol to determine who has a right to possess. The prson 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 Magis trate must maintain, as has been held in Bone decisions, the possession givei through the Civil Court he must at one do what the section expressly says, shall not, namely determine who has right to possession and to whom th Civil Court has given possession, in othe voids determine the right to possession. Actual possession is not necessarily lav ful possession. It may be the possession of a trespasser without any title what ever.

19. 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 Oonrt 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 expressly prohibits him from doing.

20. To contend that because the Civil Court has decided who has a right to possession that there is no longer any dispute is to ignore realities.

21. There is no doubt possibly no dispute as to title, But that does uot prevent there being a dispute as to who is in possession.

22. 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 O. XXI, rr. 97, 98, 99 of the Code of Civil Procedure. It is for the decree holder to avail himself of the provision of the Code to obtain real and effectual possession. I, therefore, agree with my learned brother Cammiade. The Rule stands dischaiged.

23. Rule discharged.