1. The petitioner, Jang Bahadur Singh, has moved this Court for quashing a proceeding under Section 145(4) of the Cr PC, in respect of certain lands started by Mr. A.J Khan, Sub-divisional Magistrate, Dinapur. The disputed lands have been specifically described in the petition to this Court in a schedule attached to para. 1, the total area whereof is 38 bighas=23.72 acres. All these lands excepting the lands consisting in Plot No. 5740 with an area of 44 acre and plot No. 5242 with an area of .72 acre, the total being 1.16 acres were the subject-matter of certain litigations in a revenue Court. At one stage of that litigation an order for delivery of possession in favour of the plaintiffs' predecessors-in-interest was passed in 1940 and in the words of the Subordinate Judge, who disposed of a title suit as between the parties in respect of these lands in dispute the defendants conceded in their depositions that Mt. Maran Kuar, plaintiffs' predecessor-in-interest, secured actual delivery of possession and that the objections of the ijaradars and of the alleged settlement-holders were overruled.

2. There having been a further proceeding for re-delivery of possession to the defendants in the revenue Courts, the present petitioner, Jang Bahadur, filed a title suit for declaration of title, for a further declaration that the proceedings in the revenue Courts in so far as they affected the plaintiffs' title and possession were void and for confirmation of possession, or, in the alternative for recovery of possession. The plaintiffs succeeded in the suit. The Subordinate Judge who tried the suit declared their title, the void character of the impugned revenue Courts' proceedings and except in respect of plot Nos. 5740 and 5242 held that the order for re-delivery of possession in favour of defendant 1 of their suit was perfectly illegal, and that everything was done surreptitiously, and that there was the positive evidence of the witnesses examined on behalf of the plaintiffs that the plaintiffs have been continuing in possession thereof. With regard to plot Nos. 5740 and 5242, he found as follows:

“When these plots do not appear to have been sold, there can be no difficulty in the way of the plaintiffs in the recovery of possession of these plots.”

3. These two plots are referred to in the Subordinate Judge's judgment as having been described in Sch. D. The ordering portion of the judgment of the learned Subordinate Judge in the title suit is quoted hereinbelow for facility of reference:

“In the result, the suit is decreed on contest with costs. Pleader's fee at 10 per cent. The title of the plaintiffs over lands covered by Sons. B and C(1) to C(4) is hereby declared and their possession over the same is confirmed. The orders passed by the learned Commissioner and the Hon'ble Board of Revenue against the decision of the Bakasht Restoration Officer, are declared to be illegal, ultra vires and without jurisdiction and similarly the order passed by the learned S.D.O, granting delivery of possession to defendant 1 and all subsequent orders of the higher revenue authorities in connection thereto, are also declared to be absolutely ultra vires and without jurisdiction.”

4. The decree of the Subordinate Judge in terms aforesaid was passed on 26-1-1946. The learned Sub-divisional Magistrate's order directing a proceeding under Section 145 of the Cr PC, to be drawn in respect of the lands in dispute was passed on 20-3-1946, that is to say, within less than two months of the civil Court decree. It may be mentioned here, however, that the decree of the civil Court is under appeal to this Court. There is no controversy that the members of the opposite party are bound, subject to the result of the pending appeal, by the above decree, inasmuch as opposite party 1, 6, 9 and 10 were party defendants to the suit and are parties to the appeal and the other opposite party 2, 3, 4, 6, 7 and 8 are servants and creatures of the opposite party. The contention advanced on behalf of the petitioner is that inasmuch as the dispute between the parties in relation to the disputed lands has been decided in his favour and the decision declares and confirms his subsisting possession thereto so recently as 26th January last, the proceeding under S. 145 for investigation into the present possession of the identical parties over the self-same lands is unwarranted by law and that it is especially so as there is no allegation of any disturbance of possession subsequent to a decree. It must be made clear at this stage that this contention does not apply to plot Nos. 5740 and 5240 relating to which the learned Subordinate Judge declares possession to be with the defendants and holds that the plaintiffs will be entitled to relief of recovery of possession. The order of the Magistrate drawing up a proceeding in so far as it relates to these two plots will be proceeded with and will not be affected by what I am going to say hereinbelow.

5. In my judgment, there is no answer to the contention advanced on behalf of the petitioner. Section 145 of the Cr PC, has avowedly a very limited scope ‘being remedial’ measure designed to avert immediate breach of peace over disputes relating to possession of immovable properties. The ambit of the section is hedged in by certain conditions and the final order passed therein is always subordinated and subjected to a decision of a competent civil Court if and when pronounced at the instance of the vanquished party. One of the key conditions pre-requisite to exercise of the jurisdiction under the section is that there must be a dispute concerning land likely to cause a breach of peace. The second important condition is that any possession acquired by forcible and wrongful dispossession within two months next before the date of the Magistrate's order directing a proceeding is not to be considered as possession within the meaning of the section. The final order that the Magistrate is entitled to pass shall be to the effect that he should declare a party to be entitled to possession of the lands in dispute until evicted therefrom in due course of law and forbid disturbance of possession until such eviction. It is difficult to apprehend how can a Magistrate in exercise of his jurisdiction under this section reagitate a dispute that has been settled by a competent Court and give a declaration in favour of a party whose claim to title and subsisting possession has already been negatived in a very recent contested litigation. To allow this should amount to permitting a criminal Court to fly in the face of the decision of a competent civil Court being the only Court competent to adjudicate with finality the disputes as to title and possession as between the parties having conflicting claims thereto. If this is permitted to be done, there will be no end to it. What I mean to emphasise is that every time that the civil Court comes to a final decision, it will be at the option of the Magistrate to unsettle the settled fact at the instance of the vanquished party and declare possession contrary to the civil Court decision thereby compelling the parties to come to civil Court over and over again. It has also to be remembered that the finality of the civil Court decision may prove under certain circumstance a stumbling block in the way of the party who has once secured all the reliefs as to title and possession to which he is entitled in the civil Court. There may be an answer to this that the order of the Magistrate under S. 145 will itself form a fresh cause of action. This may be so, but the question is once the civil Court settles the question, would it be complying with the spirit of the law to hold that the criminal Court is at liberty to set the decision at naught and to hold the party whose possession has been confirmed by the civil Court to be a wrong-doer in exercising any act of possession in accordance with the decision of the civil Court. I have no hesitation in overruling a contention that the scope and purview of S. 145 does allow such free and untrammelled interference by criminal Courts with the final decision of the civil Court. These observations may not apply and are not herein intended to apply to cases where the civil Court decision is old enough making room for possibilities of subsequent disturbance of the state of things found and pronounced to have been once existing. In this case particularly as the proceeding is within two months of the civil Court decision, any question of subsequent disturbance of the petitioner's possession by the opposite party does not attract the applicability of S. 145 except upon complaint of the decree-holder himself for the purpose of being restored to possession within the meaning of the proviso to sub-s. (4) of S. 145 read with the latter part of sub-s. (6) of the section. The matter which appears so simple and clear to me appears to have been obscured by certain decisions upholding an apparently contrary view. One of such cases is the case in 84 Cr. L.J 2591 and the cases relied upon therein. In order to understand and reconcile the apparently conflicting decisions on the point, it will be necessary to go back for a while to the history of the legislation conferring a power of interference upon the High Court with magisterial orders under S. 145 and similar other sections of the Code of Criminal Procedure. Until Section 485 of the Cr PC, was amended by Section 116 of the Cr PC. Amendment Act, 18 [XVIII] of 1923 by deleting sub-s. (3) from the section and by adding an explanation to sub-s. (1) the power of interference of a High Court chartered or non-chartered in such matters rested on the provisions of Section 107 of the Government of India Act. By sub-s. (3), the revisional power of this Court over a Magistrate's order under Sections 148, 144 and 145 etc. of the Cr PC, was excluded. The power of superintendence under S. 107, therefore, was the only power that could be invoked against such an order. In defining the ambits of that power Courts have differed to the extent that some are in favour and some against in interfering with the Magistrate's order under S. 146 passed on a finding of his own contrary to that of the civil Court in respect of a dispute as to possession of lands. The seeming differences, therefore, must be taken to have disappeared after the amendment by deletion of sub-s. (3) and addition of an explanation to the section whereby the correctness, illegality or propriety of any finding or order recorded or passed and even the regularity of any proceedings of inferior Courts are brought within the High Court's power of revision. Therefore, the fine question whether the Magistrate has or has not the jurisdiction to come to his own finding as to whether a dispute exists or not, as to whether a civil Court's decision with regard to possession is or is not correct do not come into the picture in exercise of this Court's revisional jurisdiction. Rowland J. who decided the case reported in 34 Cr. L.J 259 considered that the only question that would enable this Court to revise an order under S. 145 must be a question of jurisdiction as distinguished from a question of propriety, regularity, legality or correctness. In declining to follow a precedent of this Court cited before his Lordship in support of the proposition that a criminal Court in dealing with a matter under Section 145 of the Cr PC, must give effect to a decision, rather a recent decision of the civil Court, based his reasoning on two Full Bench decisions, one of this Court and another of the Calcutta High Court. The Full Bench decision of this Court is the case in 1 P.L.J 336.2 The greatest of the issues involved in this decision was whether in exercise of the power under Section 107 of the Government of India Act, the High Court could, interfere with an order of an inferior Court under Section 145 of the Cr PC, merely on the ground that there has been an erroneous decision on a question of law or fact. To illustrate myself it will be profitable to quote a passage from the leading judgment of Chamier C.J His Lordship observes:

“The policy of the Indian Legislature in this matter is shown by the provision in Section 435 of the Cr PC, 1898, which prevents the High Court as Courts of Revision under Chap. 32 of the Code from sending for the record of proceedings under Chap. 12. The result is that High Courts in India which have no statutory power of superintendence cannot send for the record of proceeding which Were in substance and in fact proceedings under Chap. 12 of the Code and were conducted by a Magistrate who had jurisdiction.”

6. In considering the question of jurisdictional efficacy of a magisterial order under S. 145, his Lordship observes:

“It is not always incumbent upon the Magistrate to give effect to a recent decision or proceeding of a Civil or Criminal Court. No hard and fast rule can be laid down on this matter.”

7. No doubt Rowland J. at a pre-amendment time of Section 145 of the Cr PC, was, if I may say so with great respect, correct in feeling himself bound by the observation of the Chief Justice. How far the question before the Full Bench was a question of the High Court's power of interference will appear from the following passage from the judgment of Roe J. at pp. 850 and 351 of the report. The learned Judge observes:

“I am satisfied upon this investigation that the power of superintendence is not a legal fiction whereby a High Court Judge is vested with omnipotence. It is a term having a legal force and signification. It is the power by which English Courts interfere by Prohibition and Mandamu. It is confined to cases in which the Court has acted without jurisdiction or in excess of jurisdiction, or has refused to exercise a jurisdiction, vested in it by law. The High Court will not interfere merely because there has been an irregularity in the proceedings. It will interfere if the irregularity has been so serious that one of the parties has suffered prejudice. By prejudice is meant disability to lay before the Court that party's version of the facts of the case and the law to be applied. It will not interfere with any decision arrived at after a fair trial however erroneous in law or fact that decision may appear to be.

The only question for decision in the case before us is: Had the Magistrate jurisdiction to make an order under Chap. 12? There is no question of any irregularity in the form of his proceedings.”

8. But much light can be thrown upon the subject under discussion by reference to the following passage quoted from the judgment of Sharfuddin J. at p. 342 of the report. The learned Judge says:

“A civil Court decree in favonr of a party will become infructuous if the Magistrate interferes with it but the Migistrate is not bound to maintain it blindly. If after the passing of the decree, the Magistrate finds on evidence that the party's possession has been disturbed or that the possession has changed bands he has jurisdiction but this will be a matter of fact which the Magistrate has to decide. If he comes to a finding, which would be a finding of fact, that such possession has been disturbed since the decree was passed he has jurisdiction in a proceeding under S. 145 to pass orders irrespective of the civil Court decree. In the case of a civil Court decree of very recent date where there is no evidence to show disturbance or change of possession since the decree, the Magistrate is bound to respect the civil Court decree and if he does not do so he acts without jurisdiction.”

9. If I may say with great respect, the principle as enunciated by Sharfuddin J. agrees with good sense. This principle has been followed in several other decisions of this Court, which will be noticed presently, both in single and Divisional Court—decisions which were passed mostly after the amendment of Section 485 of the Cr PC.

10. Another Full Bench decision of the Calcutta High Court—56 Cal. 2903—has been cited to me in support of the proposition contrary to the view expressed by me above, but on close examination, I find that the decision does not go far in support of the contrary proposition. In that case it was held unanimously that there being no final adjudication of the rights of the minor, delivery of possession in execution of the decree was ineffectual so far as the minor was concerned. It is remarkable that the minor was one of the members of the second party claiming possession as against the decree-holders first party in the proceeding. Secondly, the decision of Mukerji J. in this Full Bench case has been correctly summarised in the headnote which is quoted herein below:

“The words ‘actual possession’ in sub-s. (1) of Section 145 of the Cr PC, mean actual physical possession, even though wrongful, e.g, that of a recent trespasser in actual possession at the time of the proceedings under S. 145, but where dispute as to possess on has been determined by a civil Court, there is no longer a ‘dispute’ of which a criminal Court need take any notice under that section.

The words ‘dispute concerning land, etc.’ are to be understood not quite literally, but as a dispute relating to actual possession. For a dispute as to actual possession to be effectively determined, it is not enough that there has been a decree determining the rights of the parties, unless it is a decree by which a suit for declaration of right and recovery or confirmation of possession has been dismissed, thus putting an end to the plaintiff's rights and claim for possession for ever and beyond all controversy. In cases of decrees which merely determine the rights of parties, even if they decide that one party is entitled to possession as against the other, the dispute as to possession still remains, and it is only by delivery of possession in execution of such a decree and in favour of one party as against another that the dispute can be said to be determined beyond any controversy. Such possession, however, must be actual or khas possession and not merely symbolical possession, because it is actual possession and not a right to possession that S. 145 is concerned with. If all these requisites are present, there is no dispute in the eye of law, though in point of fact there may be one.”

11. The turning point of the decision in that case will appear from the following passage of the judgment of Mukherji J., at p. 364. The passage reads:

“It is apparent that the civil Court has not yet fully and finally adjudicated upon the rights of Afajuddin. It is also clear that the delivery of possession in execution of the decree in favour of the petitioner is of no avail as against Afajuddin, and in the absence of any adjudication as regards Afajuddin's share it was of very little use as an effective decision of the dispute as regards actual possession.”

12. In A.I.R 1934 Pat. 5654 at p. 569 Mohammad Noor J. observed:

“It is wrong to think that there are two kinds of delivery of possession: one actual and the other symbolical independent of the nature of possession of the judgment-debtor. Even if the delivery of possession was symbolical its effect against the judgment-debtor was the same: vide A.I.R 1923 Pat. 76.5 I am, therefore, clearly of opinion that by the delivery of possession by the peon Barho Babu got actual possession of the property with title, a possession which it is the duty of the criminal Court to respect, maintain and preserve. It is the duty of the criminal Court to give all the help provided by law to the man who has been put in possession of a property by the civil Court, and the action taken by the learned Sub-divisional Magistrate of Nawadah was perfectly correct. The learned Sessions Judge has remarked that the Sub-divisional Officer ought to have started a proceeding under Section 145 of the Cr PC. This is exactly what he ought not to have done, and he was perfectly right in not adopting that course. The first proceeding in his Court was started a day or two after the delivery of possession by the civil Court. It would have been illegal for him to start a proceeding under S. 145, to try and decide the question of possession between the auction-purchaser, who was given possession of the property by the civil Court a few days before, and the judgment-debtor who was ousted from it. It was his duty to recognise the delivery of possession given by the civil Court, give effect to it and forbid any interference with such possession by the judgment debtor, as in fact he did.”

13. In the case in A.I.R 1938 Pat. 1056 at p. 106, Manohar Lall J., (as he then was) after having referred to the decision of Rowland J., hereinbefore adverted to, observed:

“The learned Magistrate ought to have kept in view the off-repeated observation of this Court that it is the bounden duty of a criminal Court to obey the orders of the civil Court and to respect the dakhaldehani given by the civil Courts. It is open no doubt to the Magistrates to take notice of events subsequent to the dakhaldebani and it is also true, as pointed out by my brother Rowland in 13 P.L.T 178 that a Magistrate does Dot exceed his jurisdiction if he draws up proceedings under Section 145 of the Cr PC, even though a recent writ of delivery of possession in execution of the civil Court decree is produced by the opposite party but in such cases it may be a decision so grossly erroneous that this Court would have no option but to interfere in revision.”

14. To the same effect is the view expressed in the decision, 19 P.L.T 632.7

15. A decision of the Rangoon High Court in A.I.R 1939 Rang. 3888 also agrees with the view which I take in this case. The headnote is a correct summary of the proposition laid down by the Court. The headnote reads as follows:

“If in execution of a decree against the judgment-debtor an order for delivery of possession of judgment-debtor's property to the decree-holder is made by the Court and effect is given to that order by an officer of Court executing the delivery warrant and since then the decree-holder is in possession both in fact and law of the land in question but the judgment-debtor within two months from the execution of such warrant attempts a forcible entry upon the land, whereupon the decree-holder files a petition in a criminal Court under S. 145, the Magistrate cannot go behind the decision of the civil Court and cannot ignore the decree. It is immaterial whether the possession is actual or merely symbolical and in the inquiry under S. 145 there is only one conclusion possible for the Magistrate to arrive at with reference to the land and it is that it was in possession of the decree-holder on the date of the order passed under sub-s. (1) of S. 145. Even assuming that the decree-holder had been forcibly dispossessed at any time after the execution of the delivery warrant, Proviso 1 to sub-s. (4) of S. 145 will operate in favour of the decree-holder. If, therefore, in such circumstances the Magistrate passes an order under S. 146(1) by which he refers the parties back to civil Court for the determination of their rights, such an order is highly improper and opposed to all principles of justice.”

16. In my judgment, therefore, the proceeding under S. 145 drawn up by the Sub-divisional Magistrate except with regard to plots 5740 and 5242 is highly improper and illegal. I, therefore, quash the proceeding except in so far as it relates to the aforesaid plots. With regard to the last two plots, the Magistrate will be-perfectly right if he proceeds under Section 144 of the Cr PC, instead of going to the length of proceeding under S. 145 and prohibits the petitioner from going upon the lands of those two plots until he gets delivery of possession through civil Court, or he may choose to dispose of the proceeding in regard to these two plots on the basis of the recent civil Court decision and declare possession of the opposite party forbidding all disturbances thereto until the petitioner evicts them in due course of law, inasmuch as the petitioner is bound by the decision of the civil Court which he prays in aid of his contention in relation to the other plots in respect of which his possession has been confirmed. In the result, the rule is made absolute except with regard to plots Nos. 5740 and 5242.

N.S

17. Rule made absolute.