J.N. Datta, J.C.
1. This is a reference made by the learned Sessions Judge, under Section 438, Criminal P. Code, and arises out of a proceeding under Section 145 of the same Code, which in my opinion must be accepted.
2. The dispute is as regards some land with houses, which according to the Petitioner belonged to Guna Singh husband of Sm. Kali Kshatrani. Guna Singh left for Brindaban on a pilgrimage in Ashar 1360 B. S. (corresponding to June, 1953 A. D.) leaving the property in charge of Bindhu Madhav, the Petitioner. Guna Singh died at Brindaban in Magh 1360 B. S., issueless, leaving behind his widow as his heir.
3. Thereafter a dispute arose over the property between Bindhu Madhav on one hand and Kamal Singh brother of Guna Singh, Babu Sou Singh son of Kamal Singh and two others on the other hand.
Bindhu Madhav applied for action under Section 144, but the Magistrate took action under Section 145. The proceedings and enquiry went on for more than two years, and ultimately on 31-5-1954, the learned Magistrate passed an order declaring Sm. Kali Kshatrani, who was joined as the 3rd party on the death of Guna Singh, to be in possession and vacating the order of attachment directed that possession be delivered to her, and the amount in deposit (price of crop) be paid to her. Sm. Kali Kshatrani also died during the tendency of the revision petition, in the Sessions Court.
4. Petitioner Guna Singh, who claimed to have been let into possession by the owner, claimed the land also in his own right, on the ground that Guna Singh was a disciple of his father, and when leaving on pilgrimage, he made an oral gift of it in his favour assuring that a formal deed of gift would be executed on his return from Brindaban. In this connection, it is significant to note that Guna Singh did not leave the property in question in charge of his wife or brother, when going on pilgrimage.
5. The learned Magistrate found the gift and the possession of the second party not proved, and the Petitioner Bindhu Madhav who was merely an agent could not take advantage of the proceedings under Section 145, against the rightful owner, namely the widow of Guna Singh, and on that basis passed the order which he did. Kamal Singh also died during the proceedings and his son Babu Sou Singh contested the proceedings. Their case was that the property belonged jointly to them and Guna Singh, and they were in joint possession, and on the death of Guna Singh, they took possession of the entire property.
6. The view taken by the learned Sessions Judge was that the learned Magistrate exceeded his jurisdiction in going to the limit of deciding the question of title between the petitioner and the widow of Guna Singh, and that view must be accepted as correct. First of all it was not necessary to join the widow as there was no dispute likely to cause a breach of the peace, between them; and secondly having come to the conclusion that possession was with the Petitioner at the relevant date he should have passed an order in favour of the petitioner who was claiming the title also in his own right, leaving the widow who admitted the physical possession of the petitioner, to establish her title in a Civil Court and to recover possession if successful.
7. It is well settled that in a proceeding under Section 145, the Magistrate has not to enter into questions of title or the right to possess, and the foundation of his jurisdiction is the existence of a dispute likely to cause breach of the peace.
As between the petitioner and the other party headed by Kamal Singh and after his death by his son Babu Sou Singh, who also claim to be the legal representatives and heirs of Guna Singh on the death of his widow, also, the same is the position. Their possession was negatived, and they should also have been left therefore to establish their title, if any, in the Civil Court, and recover possession through it, if successful.
8. It is true that an agent in possession cannot be allowed to take advantage of his possession against his master in a proceeding under Section 145. But that applies when a dispute likely to cause a breach of the peace, arises between them, and not between the agent and third parties. In the latter type of cases, the principal cannot come in and ask the Magistrate to adjudicate upon his title, specially when his title is also disputed by the agent, and the agent sets up his own title. Even in the first kind of cases if the agency is disputed, the Magistrate will have to proceed on the basis of actual possession, because questions of title are not only irrelevant in such proceedings, but also beyond the jurisdiction of the Magistrate.
9. In the present case, the actual effect of the decision of the Magistrate has been, due to the death of the widow, that the title of the second party has been established and they get the possession even though the Magistrate found the actual possession to be with the petitioner, and this in itself illustrates and enforces the argument, against such a course being followed.
10. The result is that the order of the learned Magistrate is set aside, and in its place, there shall be an order declaring the petitioner Bindhu Madhav, to be entitled to possession until evicted in due course of law, and forbidding all disturbance of petitioner's possession until such eviction. Possession shall also be restored to the petitioner if necessary, and the amount (price of crops) if still in deposit, shall be paid to him.