The Judgment of the Court was as follows:—
This Rule arises out of certain proceedings instituted under the provisions of sec. 145, Cr. P.C These proceedings refer to a tank known as Mir Sagar and to a dwelling-house which, we are now informed, is now more or less dilapidated. It appears that in execution of a decree obtained against the predecessor of the Petitioners before us who were the first party to the proceedings under sec. 145, these properties and other properties were sold and were purchased by the members of the second party who are the Opposite Parties in this Rule. It has then been found by the trial Magistrate that on the 17th November 1918 the auction-purchaser, obtained possession of the tank through the Civil Court. That possession was taken in the lifetime of the judgment-debtor who is said to have died some five days after the delivery of possession. It was next found that the auction-purchaser took possession of the residential house on the 16th May 1920. In the execution proceedings terminating in the delivery of possession of the house the Petitioners one and two, the son and widow of the original judgment-debtor, were impleaded as parties. The sec. 145 proceedings were instituted on the 22nd January 1921. The Magistrate's finding on the evidence is that notwithstanding the delivery of possession taken on the occasions which we have set out the members of the first party have continued all along to be in possession and therefore were in actual possession on the day on which the sec. 145 proceedings were instituted.
Relying, however, on the decision of this Court in Atul Hazra v. Uma Charan (1) the learned trying Magistrate has made his final order in favour of the second party, and the question before us is whether that order on the facts and circumstances of the present case can be supported. As we have already pointed out, the heirs and representatives of the original judgment-debtor have been in possession from the date of his death some time soon after the 17th November 1918. Their possession from that date onwards to the 22nd January 1921, in our opinion, should have been regarded as adverse to the auction-purchaser. In that view it follows that in so far as the tank is concerned the order made in favour of the second party cannot be supported.
Then with regard to the house the case of the auction-purchasers was not that they merely took formal possession but that they took actual possession. The house, it is said, was found vacant and the officer of the Court who delivered possession actually inducted the representatives of the auction-purchaser into the house. The finding of the Magistrate is that on the date when the proceedings under sec. 145 were instituted and for more than two months preceding that date the members of the first party have been and are in possession. It follows, therefore, that between the delivery of possession on the 16th May 1920 and the institution of the proceedings on the 22nd January 1921 there must have been dispossession of the auction-purchasers giving rise, in their, favour, to what may be called a fresh cause of action. In that view of the matter it is clear that the Magistrate's order as regards the house is also not to be supported. In support of the view that we take we may refer to the cases of Hazari Khan v. Nafar Chandra (2) and Kulada Kinkar v. Danesh Mia (3).
In the result, this Rule is made absolute and the Magistrate's order made in favour of the second party with regard, to both the house and tank is set aside.
S.C.M