1. This criminal revision petition is against the order passed by the Additional First Class Magistrate of Chingleput under Section 145 of the Code of Criminal Procedure in M.C. No. 34 of 1943. The petitioner in the present case was the petitioner in that case. The leanaed Additional First Oass Magistrate found that the tenants of the petitioner were in possession. He considered however that he was unable to make an order declaring the petitioner to be in possession until evicted in due course of law because the tenants and not the landlord were in actual possession and because the tenants were not parties to the petition for this view of the law he relied on the decision of Pandrang Row, J., in Rama Raju v. Jagannath Rao. 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 and held that the first respondent 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 'entirety necessary to a decision of the case. The first respondent, it appears from the judgment itself, had sold a large portion of the land and so could not have been in possession himself by virtue of the possession of other persons. In Ranga Raju v Jaeanna Rao1, Pandrang Row, J., referred to two decisions of the Calcutta High Court in Agni Kumardas v.. Mantazaddin 2 and Ambar Ali v. Piran Ali. It was no doubt held in the first of those cases that the words ' actual possession ' meant actual physical possession even though wrongful, and in the Second that ' actual possession meant possession in the sense of the possession of a man who has his feet on the land, who is sowing it and ploughing it and so forth. In neither of those cases, however, did the question arise whether the tenants' actual possession is the landlord's actual possession. The questions were whether wrongful possession could be actual physical possession and whether ineffective delivery of possession obtained in execution of a Civil Court decree or symbolical possession obtained in execution of such a decree could be regarded as actual possession. I know of no casein 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 (pages 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.
2. It is contended for the respondents that no difficulty would have arisen if the tenants had been made parties to the petition. No doubt, if the tenants had been parties, a declaration could have been given in their favour; but, if the tenants' actual possession cannot be regarded as the landlord's actual possession no declaration could be given in favour of the landlord. To the best of my knowledge it has been the practice of Courts in this Provinc6 in cases under Section 145 of the Code of Criminal Procedure to treat the possession of a tenant as the possession of the landlord and to give a declaration in favour of the landlord even though the tenant is not a party to the proceedings; and I am not prepared to hold that this practice is illegal in default of authority which binds me. There may of course be cases, as when the tenant has occupancy rights, in which a declaration in favour of the tenant may be best suited to the nature of the dispute. But if a declaration can never be given, in favour of a landlord unless he himself is in possession in the sense that he is actually cultivating the land, the most unexpected and undesirable consequences may ensue. A landlord might find it difficult to evict a tenant while the order under; Section 145 was in force; or if the lease expired and the tenant did not renew the landlord would be without protection against the opposite party. In my opinion, therefore, on the facts found by the Additional First Class Magistrate a declaration should have been given in favour of the petitioner, and an order will accordingly issue declaring the petitioner to be entitled to possession until evicted in due course of law.