D.S. Dave, J.
1. This reference has been made by the District Magistrate, Jodhpur, for setting aside an order passed by the Additional District Magistrate, Jodhpur, on 6-4-1957 in Criminal Original Case No, 1 of 1954 in proceedings under Section 145 of the Code of Criminal Procedure.
2. The dispute between the parties relates toBunglow No. 17 which is situated in the precincts of Ratanada Palace at Jodhpur. It is commonground between the parties that the said bungalow elonged to the Late His Highness Maharaja Hanwant Singhji, the then Ruler of Jodhpur State till 13-1-1948 when he was blessed with a son who has succeeded to his properties. One Mr. G. H. Godwin was officer-in-charge of the 'State Aviation' and the said bungalow was given to him for his residence,
Even after the merger of the former State of Jodhpur in the State of Rajasthan, Mr. Godwin continued to remain in the personal service of the Late His Highness Maharaja Hanwant Singhji. Maharaja Hanwant Singhji expired on 26-1-1952. Thereafter, Mr. Godwin's services were terminated and he left for England in October, 1952. Nearly two years thereafter, an occurrence is said to have taken place on 14-10-1954 and the present case arises out of the same.
3. On 22-10-1954, the non-petitioner in thisCourt Shri Sohanraj (who will be hereinafter referred to as Party No. 1) presented an application in the court of Extra Magistrate First Class, Jodhpur City under Section 145 of the Code of Criminal Procedure. It was alleged by him that the said bungalow was given by the Late. His Highness Maharaja Hanwant-singhji to Mr. Godwin in gift before his demise and that the commands of His Highness were con-firmed on 14-3-1952 by members of Advisory Committee.
Mr. Godwin was, therefore, owner of the said property. It was further stated that when Mr. Godwin proceeded to England, he handed over the possession of the bungalow together with furniture placed therein, to him (party No. 1) under the supervision of Shri Magh Raj Bhansali, Advocate and that Mr. Godwin had informed the Household Comptroller of this arrangement by his letter dated 19-10-1952.
Since then the said bungalow was in his possession and Madho Chowkidar, who was continuing in the employ of Mr. Godwin since his presence in the State, was looking after the said property. On 14-10-1954, he (party No. 1) was informed by Madho Chowkidar that Thakur Jaikritsinghji, Chandra Singbji and others (who will be hereinafter referred to'as party No, 2 for the sake of brevity) came to that bungalow and forcibly took possession of the same by putting their lock in addition to the lock of party No. 1 which was already present on the main entrance of the building.
It was also mentioned in the application that party No. 1 had presented an application to police authorities on 15-10-1954 about the said trespass but no action was taken. It was pointed out that party No. 2 was not prepared to remove its possession over the property, that party No. 1 was being forcibly ousted from the possession, that there was a likelihood of breach of peace and, therefore, proceedings under Section 145, Cr. P. C, should be taken.
The Magistrate forwarded the application to Sub-Inspector of Police for enquiry and report. Accordingly, the police made some enquiry and when its report was received by the Magistrate, he ordered the papers to be filed on 4-12-1954 saying that there was no apprehension of breach of peace. Being dissatisfied with this Order, party No. 1 presented another application before the Additional District Magistrate, Jodhpur, on 11-12-1954. The Addl. Dist. Magistrate was satisfied on perusal of the application and affidavits filed therewith, that there-was a likelihood of breach of peace and, therefore, he passed a preliminary order on the same clay ana directed both the parties to put in written statements of their respective claims as respects the fact of actual possession of the property in dispute.
Both the parties then filed their written statements and certain documents in support of their claims. The Magistrate also examined 13 witnesses and after hearing both the parties, he came to the conclusion that party No. 1 was in actual possession of the disputed property on 14-10-1954 and, therefore, he ordered that the said property which was attached by the Court during the pendency of the proceedings, be released from attachment, that its possession be restored to Shri Sohanraj party No. 1 under the direction of Shri Maghraj.
At the same time, he directed party No. 2 not to disturb the possession of party No. 1 over the disputed property until it was evicted therefrom in due course of law. Aggrieved by this order dated 6-4-1957, party No. 2 filed a revision application in the court of the learned District Magistrate, Jodhpur.
The learned District Magistrate has reported that Mr. Godwin was living in bungalow No. 17 only as a servant of His Highness, that there was no valid gift in his favour since party No. 1 had not produced any registered document evidencing the gift, that Mr. Godwin's possession, therefore, was only as a servant and that provisions of Section 145 Cr. P. C. could not be invoked in a dispute over a property between a master and a servant.
It is next pointed out that neither the present Maharaja of Jodhpur nor Mr. Godwin who claim-ed their respective title and possession over the property, were parties to the proceedings, that the parties on record were only their servants or agents and for this reason also, the proceedings were invalid. He has recommended that the order of the Additional District Magistrate, Jodhpur, should be set aside. He has not made any recommendation about the delivery of the property to one party or the other.
4. Both the parties are represented in this Court by senior counsel, who have argued the case at great length. Learned counsel for party No. 2 has supported the reference, while learned counsel for party No. 1 has opposed it vehemently. He has also raised a preliminary objection to the effect that the reference is incompetent, because, according to him, the court of the Additional District Magistrate was not inferior to that of the District Magistrate within the meaning of Section 435, Cr. P. C. and, therefore, he had no jurisdiction to revise the order of the Additional District Magistrate. It will be proper to deal with this preliminary objection before deciding the reference on merits.
5. It has been urged by learned counsel for party No. 1 that according to Section 17, Cr. P. C., only those Magistrates who are appointed under Sections 12, 13 and 14 of that Code are subordinate to the District Magistrate, that an Additional District Magistrate is not appointed under the said sections, but under Section 10 of the Code and, therefore, he is not subordinate to District Magistrate except for the purposes of Sections 192, 407 and 528 as provided in Sub-section (3) of Section 10 of the Code.
It is contended that if the framors of the Code had thought it fit to make the court of the Additional District Magistrate subordinate or inferior to that of the District Magistrate within the meaning of Section 435, Cr. P. C., they could mention Section 435 in Sub-section (3) of Section 10 along with the three sections, which have been already referred to above.
Since Section 435 is not mentioned in Sub-section (3) of Section 10, it follows, according to learned counsel, that the court of the Additional. District Magistrate is not inferior to that of the District Magisrate and hence, the District Magistrate had no jurisdiction to revise the order of the Additional District Magistrate under Section 435 and make a report to this court under Section 438, Cr. P. C.
It is further urged that the actual words used in Sub-section (3) of Section 10 are that, 'additional District Magistrate shall be deemed to be subordinate to the District Magistrate' and the use of the words 'deemed to be' indicates that in fact, Additional District Magistrate is not subordinate to District Magistrate, but he will be considered subordinate only for limited purposes.
In support of his contention, learned counsel has referred to Commr. of Income-tax, Bombay v. Bombay Trust Corporation Ltd., 121 Ind Cas 532: (AIR 1930 PC 54). In that case, it was observed by their Lordships of the Privy Council that,
'when-a person is 'deemed to be' something the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were'.
I have considered this argument and it is true that the words 'deemed to be'' connote the meaning which has been explained above by their Lordships, but as I will show presently, this argument does not help learned counsel, because what is to be considered by this Court in the present case is whether the Court of Additional District Magistrate is inferior to that of District Magistrate within the meaning of Section 435, Cr. P. C. and not whether Additional District Magistrate is subordinate to DistrictMagistrate in all respects within the meaning of Section 17 of the Code. In order to appreciate tile argument, it would be proper to reproduce here Section 10 and Section 435, Cr. P. C.:
'10. District Magistrate:
(1) In every district outside the presidency-towns the State Government shall appoint a Magistrate of the first class, who shall be called the District Magistrate.
(2) The State Government may appoint any Magistrate of the first class to be an Additional District Magistrate and such Additional District Magististe shall have all or any of the powers of a District Magistrate under this Code, or under any other law for the time being in force, as the State Government may direct.
(3) For the purposes of Sections 192, Sub-section (1), 407, Sub-section (2) and 528, Sub-sections (2) and (3) such Additional District Magistrate shall be deemed to be subordinate to the District Magistrate.'
435. Power to call for records of inferior Courts:-- (1) The High Court or any Sessions Judge or District Magistrate, or any Sub-Divisional Magistrate empowered by the State Government in this behalf may call for, and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination o the record.
Explanation:-- All Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Session's Judge for the purposes of this sub-section and of Section 437.
(2) If any Sub-divisional Magistrate acting under Sub-section (1) considers that any such finding sentence or order is illegal or improper, or that any such proceedings are irregular, he shall forward the record, with such remarks thereon as he thinks fit, to the District Magistrate.
(4) If an application under this section hasbeen made either to the Sessions Judge Or the District Magistrate, no further application shall be entertained by either of them.'
6. It would appear from the comparison of the two sections that the actual word used in Section 435 Cr. P. C. is 'inferior' and not 'subordinate'. Under the Criminal Procedure Code of 1861, while the High Court could call for the record of the criminal proceedings of any court within its jurisdiction, the Courts of Sessions and District Magistrate were authorised to call for the record of those Courts only which were immediately subordinate to them.
Similarly under the Criminal Procedure Code of 1872, the Court of Sessions or the District Magistrate was authorised to call for record of the proceedings of those Courts, which were subordinate to them. In the Criminal Procedure Code of 1882, however, the word 'inferior' was substituted for the word 'subordinate.' It is obvious that this change was knowingly effected because the word 'inferior' is of much wider import than the word 'subordinate.'
One Court may be inferior to another Court without being subordinate to it. In other words, there may be inferiority without subordination, though there cannot be subordination without inferiority. The point for determination, therefore,is whether the court of Additional District Magistrate was inferior to that of the District Magistrate and whether the reference made by him is competent. The argument about the meaning of the words 'deemed to be subordinate' thus, does not arise so far as the present case is concerned.
7. Learned counsel has has next referred to Emperor v. Nawab Ali, AIR 1919 Low Bur 43, in which it was held by learned Pratt J. that an Additional District Magistrate in Burma could not be held to be an inferior court to that of the District Magistrate under Section 435, Cr. P. C. Learned Judge proceeded to observe that
'the additional District Magistrate is, if the term is permissible, in the position of an Additional Judge of the District Magistrate's Court. He is no more inferior to him than an Additional Sessions Judge is to the Sessions Judge. Both are, so to speak, members of the same Court.'
With great respect, I am unable to subscribe to the view that under the Code of Criminal Procedure, the court of Additional District Magistrate while exercising its original jurisdiction is not in ferior to the court of the District Magistrate, if the latter considers it proper to exercise his powers under Section 435, Cr. P. C.
It would also not be correct to say that an Additional District Magistrate is no more inferior to the District Magistrate than an Additional Sessions Judge is to the Sessions Judge. It may be pointed out that Section 9 of the Code which deals with the establishment of a Court of Sessions lays down that the State Government shall establish a Court of Sessions for every sessions division. Sub-section (3) of the same section further provides that,
'the State Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.'
Thus, once a case goes to the Additional Sessions Judge, he exercises the same powers, which are conferred upon the Sessions Judge by the Code and thereafter, there is no difference between the two. Sub-section (2) of Section 10 of the Code, however, provides that, 'The State Government may appoint any Magistrate of the first class to be an Additional District Magistrate,' but at the same time, it is left to the discretion of the State Government to confer upon the Additional District Magistrate either all or some of the powers of a District Magistrate under the Code.
In other words, whereas the Code has left no powers with the State Government to differentiate between the judicial powers of the Sessions Judge and the Additional Sessions Judge, it is left to the discretion of the State Government in the case of an Additional District Magistrate to invest him with all or only some of the powers of the District Magistrate.
Section 36 Cr. P.C. read with Schedule III of the Code would show what are the ordinary powers of the first, second or third class Magistrates or that of a District Magistrate. The ordinary powers of a District Magistrate are given in Part V of Schedule III. It is left to the discretion of the State Government to confer all the powers of a District Magistrate provided in Part V of Schedule III upon Additional District Magistrate or to withhold certain powers from him.
It cannot be said, under the circumstances, that an Additional District Magistrate would be at par with a District Magistrate as soon as he is appointed as an Additional District Magistrateunder Section 10(2) Cr. P.C. For instance, an Additional District Magistrate may not be given power to hear appeals from orders of Magistrates under Section 406-A Cr. P.C., or to hear appeals or revise orders under Section 515 Cr. P.C.
If in such a case an Additional District Magistrate who has been given some other powers, but not the above powers, passes any order in his capacity of a First Class Magistrate under Section 122 Cr. P.C. and if an appeal from his order is made under Section 406-A Cr. P.C., or if he passes an order under Section 514 Cr. P.C. and an appeal is filed under Section 515 Cr. P.C. to a District Magistrate, the District Magistrate would be competent to hear those appeals.
In such a case, it cannot be said with any justification that the court of Additional District Magistrate would not be inferior to that of a District Magistrate, even though the latter is competent to sit in appeal over the orders of the former. It may be further pointed out that there may be cases in which the State Government may confer upon an Additional District Magistrate other powers, but it may not invest him with powers to call for record under Section 435 Cr. P.C.
In those circumstances also, a District Magistrate would be the only Magistrate, who would be able to call for the record of other Magistrates and if an Additional District Magistrate passes any order in his original jurisdiction, the District Magistrate would be competent to deal with under that section. The scheme of the Code, therefore, seems to be that in every district, there would be only one District Magistrate and the Additional District Magistrate has not been placed at par with him.
This view is supported by 'Emperor v. Abdul Karim, 9 Cri LJ. 104 in which it was held by a Division Bench of the Chief Court of the Punjab that 'The Court of Magistrate of the 1st class appointed under Section 10(2) Cr. P.C., as an Additional District Magistrate, is inferior to the Court of the District Magistrate for the purposes of Section 435(1) Cr. P.C.' In 'Prabhulal Ramlal v. Emperor' AIR 1944 Nag 84, it was observed as follows:--
'The object of Section 10(2) is only to relieve the pressure of work falling on the shoulders of the District Magistrate in the course of the performance of his normal duties under the Criminal Procedure Code or any other ordinary law. The Additional District Magistrate, who is invested with powers of a District Magistrate, does not thereby attain the status of the District Magistrate as Subsection (3) of Section 10 itself makes clear.'
8. It is true that these observations have been made in a different context but as pointed out by the learned Judges, when Sub-section (3) of Section 10 clearly shows that an Additional District Magistrate is subordinate to a District Magistrate for certain purposes, it follows that his court is inferior to that of a District Magistrate when he is not exercising the powers of a District Magistrate.
In Krishnaji Vithal v. Emperor, AIR 1949 Bom 29, it was observed that the word ' 'inferior' does not carry with it any stigma or any suggestion that the Court is under the administrative orders of the Superior Court....A Court is inferior to another Court when an appeal lies from the former to the latter.' In this case, it was held that the High Court in Sessions, exercising original Criminal jurisdiction, is inferior to the High Court on its appellate side, as an appeal lies from the former to the latter.
I have already pointed out above that there may be cases where an appeal may lie from an order of an Additional District Magistrate to the District Magistrate. It has also been pointed out above that at least for certain purposes as mentioned in Section 10 (3), an Additional District Magistrate is subordinate to a District Magistrate.
It cannot be said, under the circumstances, that his court is not inferior to that of a District Magistrate within the meaning of Section 435 Cr. P.C. I must make it clear at this place, that I do not mean to say that if the Additional District Magistrate, who is himself invested with the powers under Section 435 Cr. P.C. calls for some record of an inferior Court and makes a report under Section 438 Cr. P.C., the District Magistrate would still be able to exercise his powers under Section 435 Cr. P.C. in respect of the order of the Additional District Magistrate, because in that case, the Additional District Magistrate would be exercising the powers of District Magistrate himself.
In the present case, the Additional District Magistrate had passed his order dated 6-4-1957 in exercise of his original jurisdiction and as such, the District Magistrate had the authority to call for and examine the record of the proceedings under Section 435 Cr. P.C. and make a report to this Court under Section 438 Cr. P.C.
9. Moreover, learned counsel for party No. 2 has raised important questions of law in this matter and, therefore, even if it were to be held by this Court that the reference was incompetent, this Court can revise the orders of the Additional District Magistrate in exercise of its powers under Section 439 Cr. P.C. There is, therefore, little substance in the preliminary objection raised by learned counsel for party No. 1, and it is hereby dismissed.
10. Now, coming to the points which have been raised by the learned District Magistrate and which have been supported by party No. 2, the first objection that has been raised in this Court is to the effect that proceedings under Section 145 Cr. P.C. are invalid in the absence of real disputants having been brought on the record. It is true that the application dated 22-10-1954 or 11-12-1954 was not filed by Mr. Godwin himself, nor was he impleaded as a party thereafter. Similarly, His Highness of Jodhpur has not been impleaded on the opposite side.
The question which, therefore, arises for determination is whether the proceedings must be set aside in their absence. Learned counsel for party No, 2 has referred to Behary Lall Trigunait v. Darby, ILR 21 Cal 915. In that case, proceedings under Section 145 Cr. P.C. were instituted by a Magistrate regarding a dispute as to the right to dig for coal in a certain mouza which was claimed by a Company to the exclusion of those in possession of the surface rights of a portion of the mouza.
The Magistrate had made the manager of the Company only a party to the proceedings and the Company itself was not made party. It was held that the order was bad as the parties interested were not properly brought before the Court. It was observed that the Manager had no interest except as manager and that he had no independent connection except as representing the Company, on whose behalf he was managing the mine.
He has also referred to Protab Narain Singh v. Rajendra Narain Singh, ILR 24 Cal 55. It would suffice to say that a Full Bench of the same Court in Krishna Kamini v. Abdul Jubbar, ILR80, Cal 155 has declared the view taken in ILR 24 Cal 55 as obsolete and therefore the above two cases do not lay down the correct position of law according to the lower court. It may be further pointed out that a Full Bench of the same Court in case of Dhondhai Singh v. Follet, ILR 31 Cal 48 was required to answer the following question, which was referred to it:
'Is there jurisdiction under Section 145 Cr. P.C. to make an order in favour of a person, whoclaims to be in possession of the disputed land as agent to, or manager for, the proprietors when the actual proprietors are not residents within the appellate jurisdiction of the High Court?'
11. This question was answered in the affirmative by all the five learned Judges constituting that Bench. In the same case, Maclean C.J, proceeded to observe that,
'if the argument of the petitioner were to prevail in the case of a proprietor resident out of British India, the property being managed by a manager, a not uncommon case, perhaps, inasmuch as there is no provision in the Code for the ser-vice of proceedings under Section 145 upon a person resident out of British India, the section would become inoperative.'
Thus, it was unanimously held that a Magistrate has jurisdiction under Section 145 Cr. P.C. to make an order in favour of a person who claims to he in possession of the disputed land, as agent to, or manager for, the proprietors when the actual proprietors are not residents within the appellate jurisdiction of the High Court. It is absolutely clear that the two latter cases of the Calcutta High Court, referred to above, do not support the argument raised by learned counsel for party No. 2.
On the other hand, tbe view expressed by Full Bench in the last case ILR 31 Cal 48 clearly goes in favour of party No. 1. In the present case, party No. 1 Sohanraj was an agent of Mr. Godwin. Shri Sohanraj has produced in the trial Court a document, Ex. 1 which shows that General power-of-attorney was given by Mr. Godwin to him on 21-10-1952. This is a registered document and it shows that Shri Sohanraj was a duly authorised agent of Mr. Godwin and it was in that capacity that he was in possession of the disputed property.
It is not denied by learned counsel for party No. 2 that Mr. Godwin was in England on the day of occurrence, i.e. 14-10-1954. The trial Court has found after discussing the oral evidence produced by party No. 1 that the disputed bungalow was in actual possession of party No. 1 under the supervision of Shri Maghraj Bhansali, Advocate. The correctness of this finding of fact has not been doubted even by the learned District Magistrate, who has made this reference.
Learned counsel for party No. 2 has led thisCourt into the evidence in order to show that thesaid finding was incorrect, but I find from statements of Madho Chowkidar and that of Sohanraj,Thanchand and Hukmichand that the actual possession was realiy with party No. 1 on 14-10-1954before another lock was put on the main entranceof the building by party No. 2. When Sohanrajwas a duly authorised agent of Mr. Godwin andwhen he was also in possession of the property andwhen Shri Godwin was not resident even in Indianot to say in the State of Rajasthan, it could notbo possible for Mr. Godwin himself to file thecomplaint.
Similarly, it was not denied in this Court that the Maharaja, was also in England on thedate of occurrence. It appears from the statement of Madho Chowkidar that Shri Chandrasingh, Officer-in-charge Pharaskhana, Jodhpur, along with two chowkidars, one driver and one other man had gone to the disputed house on 14-10-1954 and they put a lock to its entrance.
P. W. Thakur Jaikirit Singh, Administrator, His Highness' properties, Jodhpur, has also appeared -in the witness box. He has stated that when he received a letter from the Government that a 'Patta' may not be given to Mr. Godwin, he gave instructions to his subordinates to take possession, of the disputed bungalow. Thakur Jaikrit Singh, Administrator, His Highness' properties, Jodhpur and Chandrasingh are both on record in party No. 2.
On the very admission of party No. 2, it is clear that it has taken possession of the disputed property on behalf of the present Maharaja of Jodhpur. The present Maharaja is admittedly a minor. It has also been mentioned above that he was in England at the time of occurrence. It was, therefore, not absolutely necessary to bring him on record in the array of party No. 2. There is a difference between a 'proper party' and a 'necessary party' though he was a proper party, he was not a necessary party to this case.
The Magistrate, as will be discussed at a later stage, was concerned more with a dispute relating to possession than with the question of title. The persons who were really disputants in the matter of possession are on record. The breach of peace, if any, could be occasioned by the acts of these persons and not by Mr. Godwin or the Maharaja of Jodhpur and, therefore, simply because the owners claiming title to tbe property were not brought on record, it cannot be said that the Magistrate had no jurisdiction to proceed in the case.
Learned counsel for party No. 2 has referred to Nagoji Row v. Subbarayulu Naidu, AIR 1917 Mad 742. In that case, it was held that an order for possession cannot be made under Section 145, against a mere servant without the master being brought on the record. It would suffice to say that the parties in the present case are not mere servants, but they are duly authorised agents of the rival claimants and the dispute about actual possession really lies between them.
Learned counsel has also referred to Rupchand Moran v. Bhagalu Singh, AIR 1954 Assam 77. That case is also distinguishable easily on facts, because there the complaint was filed by a mere Chowkidar. His employer Shri Sardar Mall who was the owner of the land and who was in actual possession thereof, was not a party to the proceedings. In the case before this Court, Shri Sohanraj is not a mere chowkidar or a servant, but a duly authorised agent of Mr. Godwin and it was he, who was in actual possession of the property and dealing with the same in the absence of Mr. Godwin, who had gone out of this country. Learned counsel has lastly referred to Pearelal v. Emperor, AIR 1934 All 853, which was also referred to in the Assam case mentioned above.
In that case, the complaint was filed by an agent and the notice was also sent by the Court to an agent of the opposite party. The case had thus, proceeded between the agents and no notice was sent to the masters to file their written statements. In those circumstances, the proceedings were quashed and the Magistrate was called upon to proceed according to law after calling upon the real disputants Sahu Har Prasad and Badrul Jahan Begum to file their written statements.
It may be painted out that in the case of Ali Shabber v. Haider Husain, AIR 1953 All 49 one Haidar Hussain had filed a complaint in place of his father Mujtaba Hussain, who was the owner of the property. Similarly, on the opposite side, the written statement was filed by Ali Shabber, who asserted that his possession was on behalf or his mother and aunt. A question was raised that the proper parties were not on record.
That argument was repelled and the earlier case AIR 1934 All 853 was distinguished on facts. In Nandansingh v. Siaram Singh, AIR 1926 Pat 67 notice was not served to a minor, although he was a party on record. It was held that though he was a proper party being interested in the dispute, he was not a necessary party especially as he would not be a party likely to cause a breach of the peace.
These remarks very fittingly apply to the present case, because even if His Highness, Jodhpur were brought on record, it would have been a mere formality. This was not a civil case in which the question of title to the property was to be adjudicated by the Magistrate and it was not absolutely necessary to implead the minor Maharaja of Jodhpur as a Party. He had not himself taken possession of the property and there was no apprehension of breach of peace from his person.
His property was being administered by an Administrator duly appointed by the Government. It was the Administrator on whose orders, Shri Chandrasingh had proceeded to take possession of the property in dispute and when both of them are on record, the Magistrate had certainly jurisdiction to proceed in the matter. In Langar Mahton v. Radha Mahton, AIR 1954 Pat 135, it was urged that one Mst. Sokrania who was a minor daughter-in-law of Bacha Mahto, was not brought on record and, therefore, the Magistrate had no jurisdiction in the matter,
It was held that although the possession of Bacha Mahto was merely as an agent or a guardian and was not that of a proprietor, yet his possession was such as was contemplated by Section ,145 Cr. P.C. It would thus, appear that an application under Section 145 Cr. P.C. cannot be dismissed simply because it is not filed by the owner of the property or that he is not brought on record.
If the Magistrate finds that an application is brought by some person like a Chowkidar or a mere servant, he is himself not involved in the dispute and who is not in actual possession over the property and if it is also found that the owner or the person in actual possession is knowingly not coming forward for some reasons, then he may be Justified in dismissing such an application but it Would not be correct to dismiss an application in which the actual parties are on record.
The object of Section 145 Cr. P.C. is to prevent breach of peace arising out of dispute relating to immovable property and if the Magistrate is satisfied that such a dispute is likely to cause breach of peace, he should make an order stating the grounds of his satisfaction and require the parties concerned in such a dispute to attend his court and file written statements of their respective possession over the subject of dispute.
It may be pointed out that the actual words used in Section 145 Cr. P.C. are 'parties concerned in such dispute.' In the present case, the parties who are actually concerned in the dispute were before the court, because it was Sohanraj who was in actual possession of the property for about twoyears after Mr. Godwin's departure for Englandand the persons who tried to dispossess him were members of party No. 2.
Simply because the rival owners of the property, who were in England were not impleaded the application cannot be dismissed. As observed by learned Judges in ILR 30 Cal 155, the whole object of Section 145 Cr. P.C. would be defeated, if such an order is made. This is not a civil case for deciding the question of title and, therefore, the owners are not indispensable parties. I find no force in this argument and it is fit to be dismissed.
12. The next argument raised by learned counsel for party No. 2 is that Mr, Godwin's possession was that of a mere servant and the provisions of Section 145 Cr. P.C. do not apply to a dispute between a master and a servant over an immoveable property belonging to the former. It is contended that according to party No. 1 itself, this property belonged to His Highness, Jodhpur before 1948, Mr. Godwin was put in occupation thereof because he was in the service of His Highness . and so he could be turned out by his master at any time.
According to learned counsel, Mr. Godwin's possession was simply that of a licensee. It is further urged that he was not in possession of the property in the legal sense of the term possession, but only in occupation thereof on behalf of his master. It has also been urged that party No. 1 may have been forcibly dispossessed but it was not wrongfully dispossessed and, therefore, the provisions of Section 145 Proviso 4 do not come into play.
13. Learned counsel has in this connection, drawn attention of this Court to the following passage appearing in Salmond's Jurisprudence, 10th Edition at page 286:
'Possession may exist in fact, but not in law. Thus, the possession by a servant of his master's property is for some purposes not recognised as such, by the law, and he is then said to have detention or custody, rather than possession.'
14. It may be remarked that this passage occurs in Chapter XIII, where the learned author has brought out the distinction between possession in fact and possession in law. It is true that the possession of a servant of his master's property on his behalf is the master's possession with regard to third persons. But, if there is a dispute between the master and the servant, themselves, about the possession of the property, then the word possession will have to be interpreted in the sense of actual physical possession.
The term 'possession' connotes an intricate and subtle legal conception, which changes with circumstances. Section 145 Cr. P.C. deals with disputes about actual physical possession and, therefore, it cannot be said that in no case its provisions can be invoked, if the dispute is between a master and a servant. In the present case, party No. 2 has not brought on record any document to show under what conditions, Bungalow No. 17 was given to Mr. Godwin for his residence.
In the absence of any documentary evidence, it cannot be said that his occupation of the building was merely that of a licensee. It is not denied even by learned counsel for party No. 2 that Mr. Godwin's occupation of the building was not like that of a Chowkidar, who is deputed only to keep a watch over the building.
His position was also not that of a lodger only. It is common ground between the partiesthat he was officer-in-charge of State Aviation, when he was given that building for his residence. If that building was given to him for his residence free of rent as one of the conditions of his service, i.e. if the rent free residence was a part of his emoluments, then he would be a tenant within the meaning of Section 105 of the Transfer of Property Act, according to which a lease of irnmoveable property is a transfer of a right to enjoy such property made for a certain time, express or implied, not only in consideration ot money, but also in consideration of service.
In Hughes v. Chatham, Overseers, (1843) 5 Man. and G. 54 the master rope-maker in a royal dockyard was given a house in the dockyard for his residence, of which he had the exclusive use, without paying rent, as part remuneration for his services. The house was stated to belong to the lords of the admiralty. It was held that if the master rope-maker had not that house, he would have an allowance for that house in addition to his salary and, therefore, he occupied the house as a tenant.
It is conceded by learned counsel for party No. 2 himself that if there is a dispute between a landlord and a tenant over the possession of an immoveable property, the provisions of Section 145 Cr. P.C. can certainly be invoked. I need not go further into this question, because, in the present case it has been vehemently urged by party No. 1 and not without justification, that his or Mr. Godwin's possession was not that of a mere servant, at least after the year 1951.
It has been strenuously urged by learned counsel for party No. 1 that from the date of the birth of the present Maharaja of Jodhpur, i.e. 13th of January, 1948, Mr. Godwin's possession over the building was that of a donee in his own right, since the property in dispute was given away to Mr. Godwin as a gift on account of his services and the birth of Maharaj Kumar. Learned counsel for party No. 2 has urged with equal vehemence that the gift may be in contemplation of the Late Maharaja of Jodhpur, but there was no complete gift, because no registered document was executed ir; favour of Mr. Godwin, nor any 'Patta' was given to him.
This brings for consideration, the next point which has been referred to by learned District Magistrate. It appears from his report that he is also of the view that there was no gift in favour of Mr. Godwin, because no registered document was executed as required by Section 123 of the Transfer of Property Act. It is true that according to Section 123 of the Transfer of Property Act, the transfer must be effected by a registered instrument, signed by or on behalf of the donor and attested by at least 2 witnesses in order to make a valid gift.
It is, however, urged by learned counsel for party No. 1 that the Transfer of Property Act came into force in Marwar in March, 1949, that the oral gift was made on 13-1-1948, when the said Act was not in force and, therefore, a registered document was not necessary. Learned counsel for party No. 2 has stoutly denied the existence of an oral gift on 13-1-1948.
Learned counsel for party No. 1 has urged that this denial on the part of party No. 2 is wrong in view of the language of Ex. A-2. Ex. A-2 purports to be letter written by Mr. Godwin to the Financial Adviser to His Highness on 10-5-1951. In that letter, he had written that His Highness the Maharaja Sahib Bahadur was graciously pleas-ed on the occasion of the birth of Shri Maharaj-kumar Sahib to present him with 'a bungalow, which he was occupying on that date, but he had not received the patta or the transfer documents in spite of the reminders and, therefore, the Financial Adviser was requested to 'ascertain if necessary, from His Highness and have steps taken for the grant of the patta to him.'
On this document, there is a note to the effect that the said letter be submitted for con-firmation and that the property will have to be transferred through proper channels and necessary steps will be taken after His Highness has confirmed. The copy on record does not bear the signatures of any officer on this note, but below it there appears the following words, 'Approved -- Sd/- Hanwantsingh.' According to party No. 1, these signatures were that of the Late Maharaja ot Jodhpur.
It is urged that when His Highness approved the above note, it meant that the bungalow was really gifted away on the occasion of the birth of Shri Maharajkumar Sahib. On the other hand, learned counsel for party No, 2 has urged that even if the note Ex. A 2 be taken to bear the signatures of Maharaja Hanwantsinghji, it only shows that he had under contemplation the gift of the bungalow to Mr. Godwin, but that gift could not be completed so long as the transfer was not made through proper channels according to the note itself.
I have given due consideration to this argument and I think that it would neither be safe nor proper to decide in this case the question, whether there was a completed gift and whether it was valid or not, because this Court is not called upon to decide these questions in criminal proceedings. It would be for a civil court to decide these matters, if and when a civil action is brought by one of the parties.
The Financial Adviser or the Household Comptroller who are the members of the Advisory Committee, have not been examined by either parties in this case and so long as all those circumstances under which His Highness the then Maharaja is said to have spoken to Mr. Godwin on 13-1-1948 are not brought on record, it cannot be said whether there was only a promise for gift on that day or whether a gift was actually and finally made.
It has also not been brought on record as to what formalities were necessary for making a valid irrevocable gift by the Ruler to his subjects on such occasions. This does not, however, mean that Ex. A. 2 and Ex. A. 3 are of no importance in the present case, because they do tend to show that rightly or wrongly, Mr. Godwin was under an impression that the Ruler had given away the bungalow, he was occupying, as a gift to him.
This is why, he moved the financial adviser to get patta or transfer documents. There is a further note dated 14-5-1951 on this very document, which purports to be written by Financial Adviser to the effect that His Highness was pleased to approve the transfer of the bungalow to Colonel Godwin.
He went on to say that 'after this' bungalow will be Colonel Godwin's private property with full rights of disposal, sale, etc. It is not clear as to what the Financial Adviser meant by 'after this'. In other words, it is ambiguous, whether he meant to say after this date or after the transfer of the bungalow through proper channels. Party No. 1 has also produced another document, Ex. A-7,which purports to be signed by 3 members of the Advisory Committee and says that Mr. Godwin was permitted to sell the property subject to certain conditions regarding the closure of the gates in the compound.
It is urged by learned counsel for party No. 2 that the members of the Advisory Committee were not authorised to write this letter and to permit Mr. Godwin to sell away the property. It would suffice to say that this Court cannot decide in the present case, whether the Advisory Committee had any authority to write such a letter, but these documents certainly show that Mr. Godwin had set up a title adverse to that of the present Maharaja, long before he departed from this country.
My attention has also been drawn to Ex. A-21 dated 27-10-1952. It purports to be written by Shri Ramgopal, Comptroller of Household, Jodhpur to Shri Maghraj Bhansali, Advocate. It appears from the statement of Thakur Jaikiritsinghji, Administrator, His Highness' properties, Jodhpur, a member of party No. 2 that this was written by Shri Ramgopal at his direction.
It shows that Mr. Godwin had endorsed to the Comptroller of Household, a copy of his letter to Mr. Maghraj dated 19-10-1952. It was asserted in this letter that the bungalow was private property of His Highness, but it was suggested that until Mr. Godwin establishes his title in a competent civil court, it would be better to lease out the bungalow on rent.
Shri Maghraj was also asked to send a list of the furniture, which was in the bungalow. I may also refer to Ex. A-4, in which Shri Ramgopal had written to Mr. Godwin on 22-10-1952 that the furniture was separate from the bungalow and as such, he was asked to return the same to the Palace Farrashkhana.
These documents make it quite clear that the Household Comptroller and the Administrator, His Highness' Properties, Jodhpur knew full well that Shri Godwin had set up a title adverse to that of the present Maharaja. He claimed the bungalow as his own and the Comptroller, Household wanted him to return the furniture and he had also requested Shri Maghraj, Advocate to let out the bungalow on rent, so long as Mr. Godwin did not establish his claim in a civil court.
This was the position in October, 1952, For two years after that date, i. e., till 14-10-1954, party No. 1 again continued to be in possession of the disputed property. Having allowed party No. 1 to remain in possession of the property for more than 2 years, in spite of its claiming adverse title to the property, it was not open to party No. 2 in law to throw out party No. 1 out of the possession of the property by use of force and without having due recourse to law,
15. It may be observed that not only Section 145, Criminal P. C., but even the Civil Law contemplates that a person in possession of an immove-able property should not be dispossessed by another except in due course of law. Section 9 of the Specific Relief Act provides that if any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit.
It may again be pointed out that the title of a person in adverse possession, may be perfected if he is allowed to remain in possession for a period prescribed by the Indian Limitation Act. In N. Varada Pillai v. Jeevarathnammal, AIR 1919PC 44, the donor had not effected a registered gift deed, but allowed the donee to enter into possession of the gifted property and the donee had thus remained in possession for over 12 years. It was held by their Lordships of the Privy Council that the donee's title had become perfected as against the donor's heirs on account of adverse possession,
It is not meant to suggest that party No. had perfected his title to the property in the present case. What I mean to say is, that a title can be perfected even by adverse possession based on a gift about which the gift-deed is not registered, and the proper course in such cases is to approach the Civil Court for redress, rather than to take the law in one's own hands and throw the person in possession of the property forcibly.
16. Learned counsel for party No. 2 has urged that Party No. 1 was a mere trespasser and, therefore, it cannot be said that it has been wrongfully dispossessed of the property, even though he may have been forcibly dispossessed. According, to learned counsel, it is necessary that the dispossession should be both forcible and wrongful in order to attract the provisions of Section 145, Criminal P. C.
In support of his argument, learned counsel, has referred to Hotchand Ramchand v. Emperor, AIR 1940 Sind 167. That case is not helpful to him, because 'there the person who had put an application under Section 145 Cr. P. C. was not in possession of the property, when the application was presented and it was further found that he was earlier ejected by the Railway Authorities under Section 122 (2) of the Railways Act which gave them a right to eject a trespasser.
In the present case, it cannot be said that party No. 1 was a rank trespasser, nor there was any authority in law, which gave a right to party No. 2 to eject him. In Ambar Ali v. Piran Ali, AIR 1928 Cal 344, it was held that in a case under Section 145 Cr. P. C. what the magistrate has to determine is as to who is in actual possession of the disputed property at the time of the preliminary order or within two months preceding and that actual possession means actual physical possession.
It was observed that actual physical possession means the possession of the person who has his feet on the land irrespective of whether he has any title or right to possess it. Actual possession is not the same as a right to possession nor does it mean lawful or legal possession. It may be the possession of a trespasser without any title whatever.
This view was confirmed by a Full Bench of the same court in Agni Kumar Das v. Mantazaddin, AIR 1928 Cal 610. The same view has been taken by the Allahabad High Court in Mt. Gyan Devi v. Rex, AIR 1949 All 144. In that case, it was held, following the Full Bench case of the Calcutta High Court referred to above, that under Section 145' Cr. P. C., a Court is bound to maintain the possession of a person who is found to be in actual possession of the disputed property within two months before the order under Section 145(1), even if he be a rank trespasser, as against any interference by the rightful owner.
The same view prevailed in Patna High Court in Sheonarayan Singh v. Bharath Singh, AIR 1954 Pat 182. In that case, the learned Judges proceeded still further and observed that the view that once there has been a delivery of possession by the Civil Court, the Magistrate has no jurisdiction to take action under Section 145 Cr. P. C., is no more sustainable. They relied on the observations made by Rankin C. J. in the Full Bench case of CalcuttaHigh Court referred to above. They quoted the following observations in their judgment, made by Rankin C. J. :
'It is the Civil Court's duty to give possessionon the ground of right; it is the Magistrate's duty to maintain possession against force or show ot force. To say that when a Magistrate, twelve months after a civil Court has delivered possession finds that the judgment-debtor is back in possession of the land, he is interrupting or interfering with the execution proceedings of the civil court, if he acts under Section 145, is a violent abuse of language.'
17. Nagpur High Court has also followed the same view in Bisan Pusha v. Mayaram, AIR 1953 Nag 356. It is thus, clear that the Magistrate's sole concern is to prevent a breach of the peace and to maintain the possession of the person, who is in actual possession of the disputed property on the date of preliminary order and if the Magistrate finds that any party has within two months next before the date of such order, been forcibly and wrongfully dispossessed, then he may treat the party, so dispossessed, as if he has been in possession of the property on the date of the preliminary order.
If a rightful owner allows even a rank trespasser to remain in possession of the disputed property for more than two months, then the Magistrate would maintain the possession even of that trespasser. In the present case, party No. 1 was certainly in possession of the disputed property within 2 months preceding the date of the preliminary order and, therefore, the Additional District Magistrate, Jodhpur committed no mistake in maintaining its possession,
18. Learned counsel for party No. 2 has in the end, raised a new objection, which does not seem to have been taken before the learned District Magistrate since there is no reference thereto in the report. It has been urged by him that party No. 1 had first presented an application in the court of Extra Magistrate First Class on 22-10-1954, that it was dismissed by him on 4-12-1954 and thereafter, the Additional District Magistrate had no jurisdiction left to entertain another application on the same facts on 11-12-1954. It is contended that the entire proceedings are fit to be set aside on account of the want of jurisdiction.
19. I have given due consideration to this argument and am of opinion that there is little substance therein. It is true that the Extra Magistrate First Class had dismissed the application of party No. 1 on 4-12-1954, but he ordered the papers to be filed by saying that in his opinion there was no apprehension of a breach of peace.
In the first place, this order was wrong, because the locks of both the parties were there on the main entrance of the building and it is obvious that party No. 1 was not prepared to allow party No. 2 to enter the building. Similarly, Party No. 2 was not prepared to allow party No. 1 to go inside the building, because it had also put its lock. The moment one party would have tried to enter thebuilding, there would have been a breach of peace. The circumstances which were related by party No. 1 in its first application and the second application left no doubt about the apprehension of a breach of peace and it cannot be said that the Additional District Magistrate had no good grounds to be satisfied that there was a likelihood of a breach of peace. There was no bar in law to fresh proceedings being taken by the Additional District Magistrate, when the application was made within 2 months of the date of occurrence 14-10-54 when party No. 2 had put its lock on the building.
This was not a case of acquittal of an accused, which could bar his re-trial under Section 403 Cr. P. C. Section 403 Cr. P. C. had, therefore, no application to the present case and there is no other provision in the Code of Criminal Procedure, which barred the fresh proceedings. Even Section 403 Cr. P. C. is clear on the point that the dismissal of a complaint or the discharge of an accused is not an acquittal for the purposes of that section.
This was not even a case of a discharge of an accused and thus, there was 110 bar to a fresh application being entertained by learned Additional District Magistrate. This view finds support in Baida Nath Majumdar v. Niraban Chunder Ghose, ILR 29 Cal 242. In that case, a Subordinate Magistrate had come to the conclusion on receipt of a police report that there were no sufficient grounds for proceeding under Section 145 Cr. P. C. and, therefore, he declined to take such proceedings. On the same police report, the District Magistrate expressed a different opinion and instituted proceedings under Section 145 Cr. P. C.
It was held that the District Magistrate had acted with jurisdiction, and that the order of the Subordinate Magistrate declining to proceed tinder Section 145 Cr, P. C. could not operate as a bar to such action. The same view was confirmed by learned Judges of the same Court in Benoy Chandra Bose v. Kala Chand Bhuimali, AIR 1926 Cal 1049. In that case also the Sub-divisional Magistrate had refused to take action under Section 145 Cr, P. C.
The District Magistrate, however, started proceedings on the same materials. The view taken by the Court in ILR 29 Cal 242 was sought to be distinguished on the ground that in the first case there was another application before the District Magistrate under Section 145 Cr. P. C., whereas in the case of AIR 1926 Cal 1049, there was no such application and hence, the District Magistrate ought not to have proceeded but it was held that there was no bar to the second proceedings being taken by the District Magistrate.
In the case before this Court, party No. 1 had made a fresh application before the Additional District Magistrate and, therefore, even the point taken in case of AIR 1926 Cal 1049 does not arise. In Diwan Singh Maftoon v. Emperor, AIR 1936 Nag 55, it was observed that there is nothing like res judicata in a criminal trial as long as it does not terminte in either acquittal or conviction so as to attract the provisions of Section 403, Cr. P. C.
In Koshi Varghese v. State, AIR 1954 Trav-Co 102, the question for consideration was wheter the District Magistrate could himself start proceedings under Section 145 Cr. P. C. in a case in which the Subordinate Magistrate had declined to take action under that section. It was observed as follows:
'We do not think that there is anything to prevent the District Magistrate from doing so. He has got concurrent jurisdiction with the First Class Magistrate in the matter of taking proceedings under Section 145 Cr. P. C. The mere fact that the First Class Magistrate declined to take action under the section cannot be a bar to the District Magistrate taking action if he deems it necessary to do so for the maintenance of peace. In doing so, he will not be acting in the exercise of his revisional powers. He will be only exercising the jurisdiction vested in him.'
20. In view of the above authorities, there is no force even in the last contention raised by learned counsel for party No. 2. No other point has been raised by him in this Court.
21. It appears from the perusal of Ex. A-21 dated 27-10-1952 that party No. 2 wanted Mr. Godwin to establish his title to the disputed bungalow in a Civil Court on the basis of the gift alleged by him, but since he did not do so for two years, it proceeded to take possession over the property. Party No. 2 was, however, ill-advised in taking this step, because it had no authority left tc take the law into its own hands.
Party No. 1 being in possession of the property, party No. 2 could not compel it or drive it to establish its title in the Civil Court. The proper course for party No. 2 was to take recourse to Civil Court in order to recover its possession over the property, if it so desired. It has already been discussed above that the grounds on which learned District Magistrate has made this reference are not tenable and so his recommendations cannot be accepted. The reference is, therefore, rejected.