1. These petitions arise cut of an order passed fay 1st class Magistrate, Sagar under Section 145, Cr. P. C., in a dispute between two rival land-lords through a common tenant. Being satisfied that there was likelihood of breach of peace the learned Magistrate passed a preliminary order on 4-10-50 and ultimately found the first member of the first party to be entitled to possession of the properties until evicted in due course of law.
2. Cr. R. P. 132/52-53 is filed by the tenant who is impleaded as the first member of the second party and the other members of the second party have filed Cr. R. P. 133/52-53. Both arise out of a common order and are heard together.
3. The facts leading to the petitions are briefly these. It is undisputed that the property in dispute belonged to one Lakshmiah and after his death, his widow Appi alias Gowramma was in enjoyment till 1945 when she died leaving no heirs. The 1st member of the II party was admutedly cultivating the lands on behalf of the owner even from the time of Lakshmiah. After the death of Gowramma, there are rival claimants competing for the title and possession of the properties on the ground of being the nearest heirs to the said Lakshmiah. The 1st member of the I party claiming as the nearest heir is said to be in possession of the properties in dispute as also other properties belonging to Lakshmiah. The 2nd member of the II party has purchased the properties from the 5th member of the II party in the year 1950 and subsequent to that it is stated that the purchaser leased out the properties to the 1st member of the II party. Both the parties admit the 1st member of the II party to be in actual possession of the property; but each of them claims him to be his tenant to the exclusion of the other.
4. The 1st member of the I party affirms that he succeeded to the properties of Lakshmiah and that the 1st member of the II party who was a tenant under Lakshmiah and Gowramma continued to be a tenant under him also and executed a lease deed in his favour in the year 1949, while the 1st member of the II party has denied the title of the 1st member of the I party and has supported the title of the V member of the II party as being entitled to the properties, and on that' ground avers that he put the purchaser, the II member of the II party in possession of the properties and obtained the geni tenure from him; Gowramma died in 1045, and when the tenant admits having put the purchaser in possession in 1950, it follows inferentially that he continued to be in possession till 1950, but no explanation is forthcoming as to who was the owner under whom he was a tenant between 1945 and 1950. Besides, according to the sale deed in favour of the II member of the II party, his vendor the V member of the II party, had no possession at the time of sale and could not, therefore, have put his vendee in possession and the attornment by the tenant gave him a right to claim constructive possession.
After consideration of evidence, the learned Magistrate has believed that the 1st member of the II party has executed the lease deed of 1949 in favour of the 1st member of the I party and that the factum of lease finds further corroborations in Exs. IV, V and VI, the letters written by the tenant to the owner. No reason is shown why the finding of the learned Magistrate that the 1st member of the II party is the tenant of the I member of the I party should not be accepted. The High Court seldom interferes on facts with an order passed under sections 145 and 146. Where, therefore, no question of Law is involved in the case and if on facts the High Court cannot hold that the reasons given by the Magistrate are entirely unsound and untenable, the High Court would not interfere -- 'Saudi Mahto v. Sukhlal Mahto, 35 Or. L. J. 611: A. I. Rule 1934 Pat. 33. The High Court on the revision side docs not ordinarily interfere with the finding of fact by the trial Court (Vide 37 Mys 1ICR 232).
5. It is contended on behalf of the I party that the petition under Section 145, Cr. P. C. is not maintainable as the 1st member of the II party who is in actual possession has admitted the title of the landlord, the II member of the II party; it is further contended by the tenant that the order of the learned Magistrate declaring the first member of the I party to be entitled to possession is erroneous. The first contention is un-tenaoie. In -- 'Sarbananda Basu v. Pran Shan-kar', 15 Cal. 527 it is laid down that a dispute between two landlords in respect of rival claims can be enquired into under Section 145, Cr. P. C. In that case, a dispute arose as to the right to collect the rents of certain land, the ownership of which was claimed by both A and E and the tenants who had been paying rent to A refused to pay rent to A and attorned to B; it was held that the conduct of tenants in attorning to B was not an assertion of possession adverse to A so as to put an end to the relation of landlord and tenant between them and A, and A's right to collect rents. Such attornment did not deprive A of his right to have recourse to Section 145 in case of a likelihood of a breach of peace, so as to have the possession of a right to collect the rent maintained pending proceedings in civil Court.
Similarly it is observed in -- 'Karnadhar Ray v. Sailendra Nath', I. L. Rule (1948) 1 Cal. 150 that 'under Section 145 Clause (2) it is permissible for the rival landlords to claim possession to disputed lands through tenants'. In the present case, the tenant who had the tenancy, has not surrendered possession to his landlord, and the claim to have attorned himself to a third person does not make the tenancy under the previous landlord cease to operate merely because he has voluntarily chosen to attorn himself to a different person; the dispute thus between rival landlords for the benefits of a tenancy can be maintained. The next point that was urged on behalf of the tenant appears to have some force in the sense that the declaration should have been made exclusively to the landlord without taking into consideration that the tenant is in actual possession.
6. It was further contended that possession should have been declared exclusively to the te- nant and reliance was placed on the decision reported in -- 'Ranga Bagu v. Srinivasa Jaganna-tha', A. I. Rule 1938 Mad. 654 and -- 'Karnadhar Ray v. Sailendra Nath', ILK (1948J 1 Cal 150. In the Madras case, the dispute related to a question between actual possession of the landlord and tenant and an argument was raised that a teriant's actual possession is the Jandlord's actual possession. Pandmng Rao J. observed that it was conceded that if the dispute about the land is between a landlord and a tenant this doctrine cannot possibly be applied and, the exception has ad mutedly to be made in the case of a dispute between co-owners inter se. The Calcutta case referred to above relates to a dispute between landlord and tenant and Lodge J. observed that
'I have no doubt that when the parties to a dispute regarding possession of land, are rival landlords, claiming possession through different groups of tenants, the possession of a group of tenants may amount to possession by the landlords of that particular group'.
These cases are not of much help in disputes between rival landlords; but in a case of dispute between the landlord and a tenant, the actual possession should be distinguished from the possession implied by law. This proposition is accepted in -- 'Venugopal Mudaliar v. Neelakanta Mudaliar', A. I. R. 1945 Mad. 255, where Happell J. laid down that
'as between a landlord and tenant the rule that the possession of the tenant is the possession of the landlord does not apply, but as between rival landlords or between the landlord and the tenant of another landlord the rule will apply for the purpose of a declaration under Section 145.'
The learned Judge commented upon the Judgment of Pandrang Row J. in the following term:
'It is true that in that case Pandrang Row J. refused to accept the contention that the tenants' actual possession is the landlord's actual possession & held that respondent 1 in the case before him, even though his tenants were in possession would not be entitled to a declaration in his favour. With great respect, however, it does not seem that a decision on this point was entirely necessary to a decision of the case'
and observed that
'I know of no case in which a Court has gone so far as to hold that a declaration under Section 145 cannot be given in favour of a landlord as against a rival landlord where his tenants -were found to be in actual possession on the date when the preliminary order was passed. As between a landlord and his own tenants there is authority for the proposition that the rule that the possession of the tenant is the possession of the landlord does not apply. See Weir's Rulings under the Code of Criminal Procedure (pp. 11-107). But it seems implicit in the ruling that as between rival landlords or between a landlord and the tenants of another landlord the ordinary rule will apply'.
It, therefore, follows that in a dispute between the landlord and tenant the Court is not precluded from declaring the possession of one landlord against the rival landlord. Though such posses- sion in favour of the landlord is declared the tenant cannot be deprived of the actual possession in spite of the fact that he has attorned himself to the rival landlord. Graham J., in a Bench decision of the Calcutta High Court reported in -- 'Suraj Mia v. D. Tullock' : AIR1929Cal33 . held that
'Where a proceeding under Section 145 was drawn in respect of certain land a portion of which was in possession of tenants who had attorned to some of the second party and where the Magistrate had declared the possession of the first party in respect of the whole of the disputed property. Held: that in a summary proceeding of this kind the right of the tenants to be maintained in possession of the land of which they were in occupation was not attested and the order of the Magistrate was modified inasmuch as the lands in possession of the tenants were concerned the possession of the first party was declared through those tenants'.
I respectfully agree with the principle laid down in this case.
7.) The dispute in the present case is essentially of a civil nature between the rival landlords. Parties often resort to criminal Courts for the settlement of then civil disputes. The object of Section 145, Cr. P. C., is not to allow parties to bring their civil disputes before a criminal Court; litigants often resort to the criminal Court with the object of getting an easy remedy without expense. This practice should be discouraged as the scope of the provision is to give a temporary remedy for the main purpose of maintaining peace in the event of the likelihood of breach of peace.
8. The learned Magistrate has declared the members of the I party
'to be entitled to possession of the properties in dispute described in the schedule annexed to the preliminary order, until evicted therefrom in due course of law and forbid all disturbanceof such possession until such eviction'.
The wording of the order implies that they are entitled to constructive possession as there is littledoubt that the 1st member of the II party is admutedly in actual physical possession on behalf ofhis landlord. It is liable to be construed that eventhe I member of the II party who is the tenantin actual possession is forbidden to enter upon it.Section 145 is not concerned about the right topossession but the actual possession and as thedispute relates to the respective claims of twolandlords, the possession of the tenant will be thepossession of the landlord. Hence in modification of the order of the learned Magistrate, it isdeclared that the 1st party members are in possession through their tenant the 1st member ofthe II party. With this modification, the orderis confirmed and both the petitions stand dismissed.
9. Revisions dismissed.