D.S. Mathur, C.J.
1. This is a revision by Radha Krishna Mehra to challenge the order dated 2-7-1971 pf the City Magistrate, Varanasi, dropping the proceeding under Section 145 Code of Criminal Procedure on the ground that the dispute relates to partnership property.
2. The material facts of the case are that Radha Krishna Mehra and Moh-kam Chand Mehra were partners of the firm Mehra Silk Mills in, the city of Varanasi. Certain disputes arose between the partners, who it may be mentioned, are brothers and, on 1.7-12-1970 the son of the applicant, namely. Kali Charan Mehra, lodged a report with the police. The mill had been closed and both the brothers had put in their locks on the gate of the mill. The police, thereupon submitted a report for taking proceedings under Section 145. Cr.P.C. in respect of the property as the dispute was likely to cause a breach of the peace. The City Magistrate passed a preliminary order and attached the Mehra Silk Mills and gave it in the custody of Kashi Nath as Supurdar. The parties were directed to file their written statements and affidavits. But meanwhile the applicant opposed the appointment of the Supurdar as, according to him, Kashi Nath was the man of the opposite parties. The matter eventually came up to the High Court and it was ordered that the Supurdar be replaced. It was thereafter that on the application of Mohkam Chand Mehra, opposite party No. 2. the City Magistrate passed the impugned order holding that the proceedings under Section 145, Cr, P. C. were not maintainable as they related to partnership property. The applicant challenged the order before the Sessions Judge though unsuccessfully. He then moved the present revision before the High Court.
3. The learned single Judge hearing the revision has, on account of conflict in two Single Judge decisions of this Court in Sardar Singh v. State, 1967 All WR (HC) 641 and Ram Shanker Tewari v. State, 1970 Cri LJ 770 (All), referred the revision for hearing by a larger Bench.
4. It is not in dispute that there existed partnership between the brothers. The applicant asserts that there was dissolution of the partnership three or four years back and during the existence of the partnership and even thereafter he was exclusively managing the partnership firm and was in exclusive possession over the Mills. The opposite Party, Mohkam Chand Mehra, on the other hand, says that there has been no dissolution of the partnership and that he is the occupier of the Mills though the partnership business is being managed and in possession of both. It was for this reason that he had moved the present application before the City Magistrate for dropping the proceeding under Section 145, Cr.P.C.
5. Section 12 of the Partnership Act, 1932, clearly lays down that subject to contract between the partners every partner has a right to take part in the conduct of the business and by virtue of Section 47 thereof the mutual rights and obligations of the partners continue even after the dissolution of the firm, notwithstanding the dissolution, so far as may be necessary to wind up the affairs of the firm and to complete transactions begun but unfinished at the time of the dissolution but not otherwise. It is not in dispute that there has not been settlement of accounts between the partners and there has not been winding up of the partnership business. Consequently, every partner shall have the right to take part in the conduct of the business, after the dissolution in the same manner as he could have prior to the dissolution. Therefore, if there be no contract between the partners that one of them shall be in possession and shall manage the business of the firm, every partner shall be deemed to have a right to take part in the conduct of the business and ordinarily it can be assumed that every partner is in possession of the assets of the I partnership firm.
6. In proceedings under Section 145, Cr.P.C. the Courts are concerned with the question of possession and not tittle of the parties. The material question for consideration in such proceedings is always, 'who was in possession, was it exclusive or joint.' Naturally, proceedings under Section 145, Cr.P.C. can be taken only if there is an apprehension of the breach of the peace.
7. It is in this background that reference may now be made to the cases brought to our notice. Reliance in support of the order of the City Magistrate was placed on 1967 All WR (HC) 641 (supra). It was a case where the opposite parties were in actual possession as servants of the applicant and the other co-grantees. It was held that even actual physical possession of a servant or an agent is in law deemed to be the possession of the master and no order in favour of (such a person, servant or agent) can be passed even though he might have been in possession of the subject of dispute for more than two months next prior to the passing of the preliminary order, It was further held that servants had no locus stand to assert their possession as against their masters.
8. Reliance was next placed on Radha Raman Ghose v. Baliram Ram (1905) ILR 32 Cal 249. In this case a dispute between the partners claiming exclusive possession of the partnership property as managers, was held to be outside the purview of Section 145, Cr.P.C. One of the partners was appointed manager jointly with another person of the second party. Radha Raman Ghose was thus a partner and by consent of the partners a co-manager of the partnership business. It was observed that the partners may agree to limit their own control of the business by appointing a manager, but in that case the manager becomes a servant of all the partners and their possession of the land and premises is not taken away by his appointment.
9. For the applicant reliance was placed on: (1) Ram Shanker Tewari v. The State, 1970 Cri LJ 770 (All)(supra! and (2) Konduri Mankayya Lingam v. Konduri Ram Lingam AIR 1954 Hyd 91 : (1954 Cri LJ 656). The former recognizes actual possession of a co-owner over joint property sufficient for purposes of Section 145, Cr.P.C. whereas in the latter case it was held that where a partner is in exclusive possession of the partnership property, proceedings under Section 145, Cr.P.C. can be taken in order to maintain law and order.
10. In the very nature of things possession of a servant or agent, even though actual, stands on a footing different than the actual possession of a co-owner. Possession of a servant, in relation to the properties belonging to his master, is invariably of the master himself. Therefore, no proceeding under Section 145, Cr.P.C. will be maintainable. Likewise the actual possession of an agent shall be deemed to be possession of the principal. The question which now falls for consideration is whether the nature of actual possession of a partner is that of a co-owner or of an agent. As would appear from the discussion to follow, cases of co-ownership stand on a footing different than that of partnership. As such the case of Ram Shanker Tewari, 1970 Cri LJ 770 (All) and other cases taking a similar view are not of much assistance. The case of Konduri Man-kayya Lingam AIR 1954 Hyd 91 : (1954 Cri LJ 656) no doubt supports the case of the applicant. In our opinion, however, this case, if we may say so with great respect, does not lay down the law correctly. In this case the argument that the partnership property being joint the possession of one partner as his agent (sic) was repelled by saying:
This in my opinion cannot help the case of the petitioner because in a partnership one partner does not act as the agent of another partner and in a case like this where the partnership has been dissolved the person who was in possession could not be regarded as the agent of the other. It may be said that a partner does act for the firm and is an agent for the firm but he cannot be regarded as an agent of the other partner.
11. The proposition of law enunciated in the aforesaid case cannot be accepted in view of the decision of the Supreme Court in Champaran Cane Concern y. State of Bihar : 49ITR152(SC) . In this case the following main differences between co-ownership and. partnership were pointed out:
1. Co-ownership is not necessarily the result of an agreement, whereas partnership is.
2. Co-ownership does not necessarily involve community of profit or loss, but partnership does.
3. One co-owner can without the consent of the other, transfer his interest etc., to a stranger. A partner cannot do this.
4. In a partnership each partner acts for all. In a co-ownership one co-owner is not as such the agent, real or implied, of the other.
12. In Ram Shanker Tewari. 1970 Cri LJ 770 (All) it was emphasised that 'The mere fact that a certain person or certain persons are in actual possession implies his or their actual possession to the exclusion of any other. In the case of property over which several persons have a joint right no doubt actual possession of one of the co-sharers may be deemed in law possession for himself and on behalf of the other co-sharers but in that case the other co-sharers will be deemed to be in constructive possession as distinct from the possession of the co-sharer in whose actual possession the property is at a given time.'
13. This may be true in the case of a co-owner who is not an agent of the other co-owner but it cannot be true in the case of a servant or agent. Nor can it be true in the case of a partner If a partner, unlike a co-owner, acts for all and one is the agent of the other, the claim of one partner, even though in actual possession of the partnership property of being in possession over such property to the exclusion of the other so as to attract Section 145. Cr.P.C. cannot be countenanced. Even if a firm has been dissolved it would, in view of Section 47 of the Partnership Act, make no difference in regard to the nature of possession of one of the partners over the partnership property till the affairs of the firm have been wound up in accordance with law. As already pointed out above, in the instant case it is not in dispute that there has not been settlement of accounts between the partners and there has not been winding up of the partnership business. In these circumstances, the partners continue in joint possession over the partnership property and the City Magistrate cannot be said to have committed any mistake in drooping the proceeding under Section 145, Cr.P.C. We may also point out that, as is clear from the foregoing discussion the cases of Sardar Singh, 1967 All WR (HC) 641 and Ram Shanker Tewari, 1970 Cri LJ 770 (All) are distinguishable from each other on their facts and viewed from that angle there is really no conflict in them.
14. In our opinion, the revision has no force and is accordingly dismissed.