(Passed on 22/6/2016 ) This revision petition under Section 115 of CPC is at the instance of defendant in the suit challenging the order of trial court dated 22/1/2016 whereby the petitioner's application under Order 7 Rule 11 of CPC has been rejected. The record reflects that respondent No.1 has filed the suit for declaration and permanent injunction in which the petitioner (defendant No.2) had filed the application under Order 7 Rule
11 CPC raising an objection that respondent No.1 (plaintiff) is not in possession of the suit property and relief of possession has not been claimed, hence under Section 34 of Specific Relief Act the suit is barred and that advalorem court fee is required to be paid by the plaintiff. The trial court by the impugned order has rejected the application on the ground that petitioner is in adhoc possession of the property on the basis of order passed under Section 145 of Cr.P.C., therefore, the possession of petitioner is as custodia legis and no relief of possession is required to be claimed. Learned counsel for petitioner submits that trial court has committed an error in applying the principle of custodia legis, consequently the issue of suit valuation and court fee has wrongly been decided. He has submitted that application under Order 7 Rule 11 CPC filed by petitioner deserves to be allowed. Learned counsel for respondent No.1 submits that possession was delivered to the petitioner in pursuance to the order passed under Section 145 of Cr.P.C. therefore principle of custodia legis has rightly been invoked and no error has been committed by the trial court in rejecting the application under Order 7 Rule 11 CPC. I have heard the learned counsel for parties and perused the record. Custodia legis means that property is kept in possession and under protection of the Court (See: Bank of India Vs. Vijay Transport reported in (2000) 8 SCC 512). In the present case there was a dispute relating to possession between the parties and proceedings under Section
145 of Cr.P.C were initiated by District Magistrate which culminated into passing of concluded order dated 3/12/2008. In those proceedings the District Magistrate has found the petitioner to be in possession of the property and possession and control of property was handed over to the petitioner Yashwant Netram with clear observation that order will remain in operation till the appropriate order by the Competent court about right or management of the property is passed. The District Magistrate had further restrained the other party from interfering in possession and control of petitioner without the order of competent court. Thereafter the present suit for declaration and injunction has been filed by respondent. Hence the core issue is if possession of petitioner on the basis of concluded order under Section 145 Cr.P.C. is as custodia legis. Reliance has been placed by the counsel for respondent on the judgment of the Supreme court in the matter of Deokuer and another Vs. Sheoprasad Singh and others reported in (1965) 3 SCR 655 and judgment of this Court in the matter of Gangabai Vs. Devisingh reported in 2012 (1) MPLJ 149 in support of his submission that possession of petitioner is as custodia legis but these are judgments wherein the party concerned was in possession of the property either as Supurdagidar or by virtue of an order of attachment passed under Section 145/146 of Cr.P.C. The legal position in respect of nature of possession on the basis of order of attachment under Section 146(1) and possession on the basis of concluded order under Section 145 of Cr.P.C. is different. When a party or receiver is in possession of the disputed property by virtue of an order of attachment under Section 146(1) of Cr.P.C. then such a possession is as custodia legis because as per the express terms of Section 146(1) of Cr.P.C. such an attachment continues till the competent court determines the right of parties with regard to the entitlement of possession thereof. But that is not so when a concluded order under Section 145(6) Cr.P.C. is passed because an order passed under section 145(6)(a) continues to operate until the party placed in possession is evicted in due course of law. Section 145(6)(a) Cr.P.C. reads as under:- 145(6)(a) If the Magistrate decides that one of the parties was, or should under the proviso to sub- section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed. The very language of section 145(6)(a) makes it clear that unsuccessful party in the proceeding under Section 145 has to approach the compete court or the forum for eviction of the successful party in accordance with law. Hence possession of the successful party on the basis of concluded order under Section 145(6)(a) of Cr.P.C. is not a possession as custodia legis and other party is required to obtain decree of possession by the civil court alongwith declaratory decree or order of similar nature from any other competent forum. While considering the similar issue the Supreme court in the matter of Shanti Kuamr Panda Vs. Shakuntala Devi reported in (2004) 1 SCC 438 has held as under:-
11. There is a difference between a case where the subject-matter of dispute is not attached by the Executive Magistrate under Section 146(1) and the case where it is so attached. Under sub-section (1) of Section 145 a preliminary order taking cognizance of the dispute having been passed, the Magistrate would under sub-section (4) decide who was in possession of the disputed property on the date of the passing of the preliminary order. Consistently with such finding, a declaration by Magistrate in favour of such party would follow under sub-section (6) entitling it to retain possession over such property until evicted therefrom in due course of law. And until such eviction all disturbances in its possession shall be forbidden. If any party is found to have been forcibly or wrongfully dispossessed within two months next before the date on which the report of a police officer or other information setting the Magistrate in motion was received by him or between such date and the date of order under sub-section (1), then the party dispossessed has to be fictionally treated as one in possession on the date of preliminary order under sub-section (1). The declaration of entitlement to possession under proviso to sub- section (4) read with sub-section (6) shall be made in favour of such party and the party found to have been so dispossessed forcibly and wrongfully may also be restored into possession. The declaration having been made, it would be for the unsuccessful party to approach the competent court and secure such order as would enable his entering into possession and evicting the party successful in proceedings under Section 145.
12. What is an eviction "in due course of law" within the meaning of sub-section (6) of Section 145 of the Code? Does it mean a suit or proceedings directing restoration of possession between the parties respectively unsuccessful and successful in proceedings under Section 145 or any order of competent court which though not expressly directing eviction of successful party, has the effect of upholding the possession or entitlement to possession of the unsuccessful party as against the said successful party. In our opinion, which we would buttress by reasons stated shortly hereinafter, ordinarily a party unsuccessful in proceedings under Section 145 ought to sue for recovery of possession seeking a decree or order for restoration of possession. However, a party though unsuccessful in proceedings under Section 145 may still be able to successfully establish before the competent
court that it was actually in possession of the property and is entitled to retain the same by making out a strong case demonstrating the finding of the Magistrate to be apparently incorrect.
13. In a case where attachment has been made under Section 146(1) of the Code, it is not necessary for the unsuccessful party to seek the relief of possession from the court; a mere adjudication of rights would suffice inasmuch as the attached property is held custodia legis by the Magistrate for and on behalf of the party who would be successful from the competent court by establishing his right to possession over the property.
In view of the aforesaid position in law, I am of the opinion that trial court has adopted wrong approach in attracting the principle of custodia legis and rejecting the petitioner's application under
Order 7 Rule 11 CPC. In these circumstances, the order passed by the trial court cannot be sustained and is hereby set aside with a direction to the trial court to decide the petitioner's application afresh in accordance with law keeping in view the factual and legal position noted above. C.C. As per rules. (PRAKASH SHRIVASTAVA) Judge