Nagoji Row And Others Petitionersparty No. 1. v. Subbarayulu Naidu And Others Sparty No. 11.

The Magistrate acting under Sect. 145 of the Code of Criminal Procedure has adjudicated upon a dispute likely to cause a breach of the peace in the presence of two groups of individuals whom he designated as Party No. 1 and Party No. 11.

From the Magistrate's preliminary order it appears that the individuals composing No. 1 Party are the servants of the purchaser of the Village of Kandadu in Kalasti Estate, and that No. 11 Party has been administering the forest in dispute which is claimed diversely by the Kalasti and Karvetnagar Estates. From the description of the parties in the final order it appears that on one side we have a forest amin, a tenadar and two forest watchers, and on the other side a forest amin and seven forest watchers.

The words in Sect. 145 of the Code of Criminal Procedure ‘parties concerned in such dispute’ have been understood as including persons who are interested in or claim a right to the property (Ram Chandra Das v. Monohur Roy, and Queen-Empress v. Kuppayyar).

The course of legal decisions as regards the right of managers to represent their principals in such proceedings shows a curious development. In Behary Lall Trigunait v. Darby, managers were held to have no interest or possession and this was followed in Brown v. Prithiraj Mandal. In Dhondhai Singh v. Follet(5), the possession of a manager on behalf of an absentee proprietor was recognised In Bholanath Singh v. Wood(6), the fact of a manager being made a party instead of his employer was held to be a mere irregularity not affecting the Magistrate's jurisdiction even if the Zamindar who employed him lived within the Court's jurisdiction.

The position of a servant is rather different. He cannot be treated as in actual possession either in his own right or on behalf of another. The possession in such a case must be with the person who pays him his monthly wages and entrusts him with the custody of the property in dispute. If he were dismissed from service, the order passed under Sect. 145 of, the Code of Criminal Procedure could not be treated as binding on his successor or on his master. Nor is he a party, to be ‘evicted in due course of law’ by a Civil Court. In the matter of In The Matter Of Jitbahan v. Bansrup Dhobi(7), it was held that an order for possession could not be made against a mere servant without his master being on the record. The possession of an agent or manager has been distinguished in Dhendhai Singh v. Folle from the possession of a servant or bailiff who occupies land in a merely ministerial character, and does not acquire possession, (see also Pollock on Possession in Common Law, pages 18 and 56). I am, therefore, of opinion that the section was not intended to apply to servants in the absence of their masters. Otherwise it would be possible for the employer to make the Magistrate's order ineffective and to avoid awkward questions of limitation, by merely changing his servants.

I, therefore, consider that the order in question was made without jurisdiction and I set it aside, Costs in this Court to be borne by Party No. 11.

M.RPetition allowed.