1. The rule must be discharged. The opposite party purchased the holding in execution of a rent decree against No. 4 or No. 5 of the petitioners and obtained delivery of possession through Civil Court, so recently as 16th October, 1919. The petitioner interfered with the possession of the opposite party in December 1919. All the petitioners, except one Prayag, are members of the same family. Prayag is a servant or dependent of the family.
2. It is contended that the Civil Court rent decree or the dakhal dahani is not binding upon those petitioners, who were not parties to the rent decree, and hence the auction-purchaser did not obtain any right to the possession of the property by the execution of the writ for the delivery of possession issued by the civil Court. It is not disputed that the entire holding passed by the sale, nor is it disputed that the petitioners, other than Prayag, who were not parties in the rent suit, were members of the same family. Apparently they are bound by the rent decree. It is not necessary for a landlord to institute a suit against all the members of the family. He is entitled to institute his suit only against the persons recorded in his sherishta as tenants of the holding. It is nowhere alleged that the names of all the petitioners were entered in the sherista of the zamindar. The fact that the dakhal dahani was served on the spot is not at all disputed; it is rather admitted in the application to this Court.
3. The only remedy for the petitioners is to have their rights, if any, declared by a civil Court. It is significant that this application is made jointly by the judgment-debtors as-well as the other members of the family. This shows that they are acting in collusion and in concert with each other to defeat the dakhal dahani.
4. It is contended that the proper procedure in this case should have been under Section 145 of the Cr PC. But there does not appear to be any dispute concerning the lands in question, nor could the petitioners be permitted to raise any dispute, in view of the admitted recent delivery of possession by the Civil Court. The petitioners did not file any objection in the Court below, although they were served with notice. The possession delivered by the Civil Court must be upheld by the criminal Court and the only way to maintain the possession of the auction purchaser is by proceedings under S. 144 or Section 107 of the Cr PC.
5. The facts of this case are dissimilar to the authorities of this Court: vide Gouri Dutt v. Gobind Singh(1), where it has been laid down that in a dispute concerning land a more proper and effective procedure is that under S. 145, for in the present case, there is no dispute as to the possession having been delivered to the opposite party by the Civil Court.
6. It is then contended that the order under S. 144 will remain in force only for two months, and that the danger of a breach of the peace will again reverb thereafter. If such an emergency does happen, the Magistrate has got full power vested in him by the Code to prevent the petitioners from committing any breach of the peace by binding them down under Section 107 of the Cr PC, or to take such other action as may be advisable.
7. The application is rejected.
V.S/R.K
8. Rule discharged.