S. Rangaranjan, J.
(1) The learned Additional Sessions Judge, Delhi (SHRI Joginder NASH), has by his order dated 4th Agust, 1972. made a recommendation to this court that the order of the learned S.D.M. (Shri A.S. Awasthi). passed in proceedings under Section 145 Criminal Procedure Code ., be quashed in the following circumstances.
(2) I have heard shri R.D. Mehra, learned counsel for the petitioner (Rajinder Singh), Shri P.P. Malhotra, learned counsel for the respondent (Abdul Majid) and Shri H.R. Bhardwaj for the State, This case highlights the kind of difficulty that courts face when dealing with certain problems that arise in crowded it owns and cities and the need for a kind of interpretation wherever possible of existing laws to meet with such problems.
(3) According to Rajinder Singh he was tenant of a portion of shop No. G-55. Karbala, New Delhi, which consisted of only one room with a single entrance where he used to keep the clothes in which he traded outside the shop, the rest of the shop having been let out to Abdul Majid where he used to sell meat throughout the day. According to Abdul Majid, however, he had taken the entire shop on rent for the purpose of selling meat and had also obtained a valid license from the N.D.M.C. which was renewed from year to year.
(4) The learned Magistrate found that Rajinder Singh was in possession of a (right) side portion of the shop in dispute where he. was keeping clothes inside a closed trunk but selling them elsewhere ; he further found that Abdul Majid was in physical possession of the rest of the shop (except for the portion where the trunk had been kept). Since Abdul Majid was in the shop throughout the day and Rajinder Singh mostly outside, the learned Magistrate directed that the outer door of the shop will be locked by Abdul Majid and that Rajinder Singh should lock only the trunk inside the shop.
(5) There upon, Rajinder Singh filed a revision petition to the learned Sessions Judge complaining that the learned Magistrate had only found that both the parties were in possession and that in such a case he could not have passed an order of this kind. Agreeing with the said contention, the learned Additional Sessions Judge has made a recommendation to this Court that the said order of the learned Magistrate be quashed.
(6) Shri P.P. Malhotra, learned counsel for Abdul Majid urged that the fact of Abdul Majid being in separate possession of the portion of the shop where he was conducting his meat business was not even disputed by Rajinder Singh whereas Abdul Majid claimed that he was a tenant of the entire shop. It is also stated at the Bar that the landlord has also applied for evicting Abdul Majid from the shop. The suggestion is that Rajinder Singh was only helping the landlord to get Abdul Majid evicted by this means. The landlord's agent, it was pointed, was also present during the hearing of this revision before me. Whatever this may be, Shri P. P. Malhotra relies upon the admission of Rajinder Singh himself, in his application, dated 18-3- 1972, to the learned Magistrate that Abdul Majid was in possession of a portion of the shop in question and had also referred me to the observation of the learned Magistrate that the only point to be decided was whether Rajinder Singh was also in possession of the shop or not. On this aspect, the finding of the learned Magistrate was that Rajinder Singh was in possession of the right side (portion) of the shop where the trunck was kept and that the rest of the shop was in the possession of Abdul Majid. It was explained to me at the Bar that the trunk itself could not be taken out of the shop because the trunk was so big that it could not be taken out through the entrance which was smaller; probably the shop. which consists of one room only had been built with the trunk inside it. Since the shop has a common, entrance the learned Magistrate gave further directions that Abdul Majid should not prevent Rajinder Singh from entering the shop and that Rajinder Singh should not disturb the actual possession of the rest of the shop (which was not even disputed) by Abdul Majid. Abdul Majid was allowed to lock the outer door of the shop because throughout the day he was inside the shop carrying on his trade in selling meat whereas Rajinder Singh came inside the shop only occasionally to keep or take out the clothes kept inside the trunk which is placed on one side of the shop only. On the findings of the learned Magistrate, thereforee, each of them was inpossession of separate and specific portions and it was Abdul Majid who was sitting in the shop throughout the day attending to his meat business. It is thus seen that Abdul Majid was practically, and effectively in possession of the entire shop except for Rajinder Singh having access to that trunk.
(7) The learned Additional Sessions Judge, after setting out the above findings of the learned Magistrate, however, thought that in substance the finding was that both the parties were in possession of the shop in dispute and that the possession of each party was not specified in precise terms. This last observation is not an accurate summing up of what the learned Magistrate had found, especially in view of the finding being that Rajinder Singh was only in possession of the right side portion of the shop where the trunk was kept. Rajinder Singh was doing nothing else except to keep his stock-in-trade, namely clothes inside the trunk which was in that portion of the shop. He was not actually trading inside the shop; he had, thereforee, no need to stay inside the shop for any appreciable period at any time. He had only to come inside the shop from time to time in order to place his stock-in-trade inside the trunk or take whatever he wanted and then leave the shop. The rest of the shop was actually being used by Abdul Majid for the purpose of his meat business. It would meet with the requirements of Rajinder Singh if Abdul Majid is interdicated from interfering with Rajinder Singh specific use of the shop as aforesaid.
(8) I do not share the view of the learned Additional Sessions Judge that the above finding of the learned Magistrate amount in substance to a finding of both of them being in 'joint possession' of the said shop. This was not even the case of Rajinder Singh; the learned Magistrate has observed that Rajinder Singh had frankly admitted that excepting the portion where he was keeping his trunk the other portion had been in the possession of Abdul Majid. It is worth repeating that here was no dispute concerning the fact of Abdul Majid having been in possession of that portion of the shop Rajinder Singh had claimed no right to that portion. The learned Magistrate had thus very equitably provided facilities to Rajinder Singh to go inside the shop whenever he wished to put in or take articles out of the trunk and to safeguard the articles kept inside it.
(9) Section 145, sub-sections 1, 4 and 6 of the Code of Criminal Procedure are material and may be read :
'145.(1) Whenever a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries there of. within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate. and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute (and further requiring them to put in such documents, or to adduce, by putting in affidavits the evidence of such persons, as they rely upon in support of such claims.'
(10) The Magistrate shall then. without reference to the merits of the claims of any such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject : Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained there in: Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly -and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date : Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute pending his decision under this section (6) If the Magistrate decides that one of the parties was or should under the 'second 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 there from in due course of law and forbidding all disturbances of such possession until such eviction and when he proceeds under the second proviso to sub-section (4) may restore to possession the party forcibly and wrongfully dispossessed.
(11) The expression 'such possession' in sub-section 6 has to be understood in the context of what has been provided in sub-section I which deals with the Magistrate requiring the parties concerned to file their respective claims as respects the fact of actual possession of the subject of dispute. The only condition for a proceeding under Section 145 terminating in a finding under' sub-section (4) and an order under sub-section (6) or an order under section 146 (attachment) is that the Magistrate should be satisfied on information laid before him that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction. He has to call for written statements from the parties concerned in the dispute 'of their respective claims as respects the fact of actual possession of the subject of dispute' and determine whether any and which of the parties was at the date of the order initiating proceedings in such possession of the subject matter.
(12) As pointed out by a Division Bench of the Patna High Court in Nandkeshwar Prasad Sahi v. Sita Saran Sahi, (A.I.R. 1932 Patna 366),(i) it is altogether wrong to graft limitations upon the enactment which the legislature has not placed there. In that case it was observed that merely because one set of persons claim exclusive possession over the major portion of property while the other set of persons claim to be in joint possession along with them of the entire property and the dispute may be difficult to decide, section 145 of the Criminal Procedure Code . would not become inapplicable. Though the facts of that case were different I respectfully agree with the principle stated therein that courts should not add any more condition than what the legislature itself had prescribed while enacting Section 145 of the Criminal Procedure Code.
(13) Rajagopalan, J., held in Alagirisami Naidu Vs.Chinna Veernammal and another (A.I.R. 1949 Madras 461) that it was not correct to say that once a conclusion is reached that both the parties were in possession of portions of land in dispute on the date of the preliminary order under section 145, the Court loses all jurisdiction vested in it to attach the property under Section 146(1). The question arose in that case whether there could be an attachment under section 146 when neither side had been able to prove exclusive possession on the date of the preliminary order and neither side had been dispossessed within two months prior to the order. I respectfully agree with the view expressed therein, that the jurisdiction to take further action under Section 145 is not lost in cases where parties are in possession of portions of the property in dispute on the date of the preliminary order.
(14) Achhru Ram, J., took the view in Wazir Chand and others v. Dr. Rawal Chand Faquir Chand (A.I.R. 1947 Vol. 34 Lahore 227) that even in a case of jointly owned property where a portion of such property is in exclusive possession of one of the joint owners and there is dispute between the parties regarding possession of the portion which is likely to cause a breach of the peace, proceedings may be taken under Section 145 of the Criminal Procedure Code . it was observed that there was 'ample authority for this view' and a few decisions were also referred to. To the same effect is the decision in Ramjharia and another v. Piar Koeri (A.I.R. 1923 Patna 369),. In that case it was held that where each party claims exclusive possession of half of the plot in dispute and not joint possession of the whole, proceedings under section 145 are maintainable.
(15) Even in the case of disputes among the members of a Hindu Joint Family regarding the jointness of title in a joint family the need to maintain the actual physical possession of any member of the family was pointed out in Mathura Prasad Nand Ram and another v. State of Vindhya Pradesh and another (1953 Criminal Law Journal Vindhya Pradesh 975).
(16) If in a case where persons are in possession of the property in dispute jointly, without even being able to specify which portion they were in possession of, then the feasibility of passing an order under Section 146(1) of the Criminal Procedure Code . has been pointed out in several decided cases : namely. Nanakeshwar Prasad Sahi Vs . Sita Saran Sahi : AIR1932Pat363 . Mallik and another Vs . Mallik Abdul Hakim and another : AIR1953Ori278 Konduri Mankayya Lingam v. Konduri Ram Lingam A.I.R. 1954 Hyd 91 and Chiranji Lal Vs . Mahadeo Prasad : AIR1932All683 , On this question, however, there appears to be some conflict of opinion among the various High Courts. Some of them have been noted in Hanumappa v. Konddoappa (1964 Ii Criminal Law Journal 319) where N. Sreenivasa Rau C.J., himself took a contrary view. For the purpose of the present case, however, it is not necessary to resolve that conflict.
(17) My attention has not been drawn to any decided case where it was held that the Magistrate ceased to have jurisdiction under section 145 even in a case like the present one where it has been possible for the Magistrate to find that Abdul Majid was in actual physical possession of the shop where he was selling meat (a fact which was admitted) subject to a huge trunk being in one part of the shop inside which Rajinder Singh had been keeping the clothes for the purpose of his trade. Rajinder Singh never even claimed to be in possession of the portion which was actually used by Abdul Majid for the purpose of his meat business. The only provision, thereforee, that had to be made in respect of Rajinder Singh was to enable him to come inside the shop for the purpose of putting into the trunk and taking out of it such articles of clothing as he wished to do in the course of his trade. It was not even the case of Rajinder Singh claiming to sit inside the shop for the purpose of trading in clothes. If the extreme view contended for on behalf of Rajinder Singh is adopted, it may lead to an almost impossible situation, especially in modern times, where number of persons occupy separate but not very distinct portions in one building under conditions almost amounting to slums in many thickly populated cities and towns. I am happy to find that a view similar to what I would like to take in this case, has been taken by a Division Bench of the Calcutta High Court in Kangali Das Bairagi v. Motilal Bigdi and others 1907 5 CLJ 490, . In this case the Magistrate found that one party had been in possession of the land in dispute and that the other party was in possession of the rest ; the possession of the one was not likely to interfere with the enjoyment of the remaining portion by the other. It was pointed out that the Magistrate could, in the exercise of jurisdiction vested in him under section 145 Criminal Procedure Code ., maintain both the parties in possession of the respective portions.
(18) I do not see how it will be difficult even to enforce the order passed by the learned Magistrate. There appears to be nothing illegal in initiating or continuing proceedings under section 107 Criminal Procedure Code . along side proceedings under section 145, though there may be cases (this is not one of that kind) where such a course may be somewhat inconvenient. It does not appear to me that the order passed by the learned Magistrate may cause difficulty in working it. Abdul Majid had to be practically in physical possession of the shop throughout the day for the purpose of his carrying on his meat business and he alone had to have the key of the shop. Abdul Majid, for his part, could not interfere with Rajinder Singh using the trunk by having to open it both for taking out and putting in such clothing as he wished.
(19) In these circumstances, the recommendation of the learned Additional Sessions Judge is not accepted. Criminal Revision No. 290 of 1972 is dismissed accordingly.