1. This is an application for revision of an order passed under Section 146 of the Criminal P.C. the proceedings have been very protracted. It appears that they were first started in December 1924 on the application of the first party B. Sheodarshan Singh and others. The Magistrate dismissed the application on 27th February 1925 nearly a year ago, on the ground that Section 145 was not applicable. He appears then to have taken proceedings under Section 144. These were set aside by the District Magistrate who thought that action under Section 145 was the proper course. The proceedings were then re-started and have been concluded by the order under revision. In this order the,District Magistrate states that he is unable to determine which party is in possession and he therefore, attaches the land and appoints the Tahsildar receiver.
2. The pleas urged in revision are first that Section 145 is inapplicable where neither party is entitled to exclusive possession, and secondly, that Section 146 is inapplicable because the rights of the parties have already been determined by a competent Court. The property in dispute consists of a plot of sir land, No. 2825, with an area of ten bighas. The first patty and Bishan Narain Singh and others of the second party are joint proprietors of the land in the proportions of one-third and two-thirds. The other members of the second party are either mortgagees or permanent lessees. The members of the first party executed a usufructuary mortgage of their one-third share in favour of their co-sharers, the members of the second party. They subsequently sued for redemption and got a decree on 16th September 1922. A year later they got joint possession from the Courts. A decree for joint possession is executed in accordance with Order 21, Rule 35. It does not entitle the person obtaining it to actually enter on the land and proceed to cultivate it or displace the persons who are doing so. It is merely enforced by a proclamation on the property and in the locality which entitles the persons to whom possession is thus given either to obtain partition or to claim the profits of the property from the person in possession of their share.
3. Although the Deputy Magistrate finds himself unable to determine the question of possession, it appears to me highly improbable that the first party ever obtained any actual possession under this decree. The fact remains, however, Chat it is difficult to see how Section 146. can be applied where the civil Court has not only determined the rights of the parties but has also determined the possession so far as it was in its power to do so. The civil Court having already awarded joint possession to the first party the only relief for which he could apply to the civil Court is a relief which has already been granted to him. It is said that he could apply for a partition of the property. This no doubt is true but such an application would not be an application to the civil Court to determine the title or the right to possession It would be an application to convert a joint proprietary right into a right of severalty in a portion of the property. In my view, therefore, the order of attachment passed by the Court below in this case was not justified by the terms of the section on a reasonable interpretation of it and I set it aside.