1. This is a petition by the Agra Bank to revise an order of the First-class Magistrate of Ootacamund under Sections 145 and 146, Criminal Procedure Code, attaching two plots of land as to which he was not able to decide whether the Bank or the counter-petitioner, Mr. Leishman, was in possession. The admitted facts are that in 1885 the Bank sold a portion of the Bella Vista property in Ootacamund to the Murree Brewery Company. Shortly afterwards, in 1885 or 1886, some sort of survey was made, and the Brewery Company put down demarcation stones to show the limits of their purchase and planted gum trees to mark the boundary. Matters so continued till Mr. Leishman agreed to purchase the Brewery Company, at the end of 1892. He was put in possession of the machinery and buildings, but in 1893, after survey of the boundaries by a Mr. De Lima, he became of opinion that the boundaries as defined by the stones put down by the Brewery Company were not in accordance with their title-deed, and that he was entitled to more land than was included within those boundaries. In order to rectify these deficiencies Mr. Leishman took upon himself to remove the boundary, stones and to peg out a line and fence to show what his boundaries really were, and it is his action in this respect that led to the breach of the peace which caused the Magistrate to intervene.
2. The Magistrate held (i) that he had to determine if either of the contending parties was in possession at the time of his writing his order, and (ii) that there was no presumption that the Bank had retained plots 1 and 2 after 1885. In consequence of his holding upon this second point, the Magistrate held he had not to determine whether Mr. Leishman had obtained de facto and physical possession and the language used by the Magistrate appears to intimate that had it not been for this opinion his decision might have been different.
3. We are of opinion that on both these points the Magistrate was in error. There is a consensus of authority that the possession to be inquired into is the possession at the time of the institution of the proceedings Krishna Dhone Dutt v. Troilokia Nath Biswas I.L.R. 12 Cal. 539; Bechu Sheik v. Deb Kumari Dasi I.L.R. 21 Cal. 404 In the matter of the petition of Jai Lal I.L.R. 13 All. 362 and In the matter of Huchapa and Shivagangava I.L.R. 15 Bom. 152 It is obvious that the words in Section 145, Criminal Procedure Code, 'the fact of actual possession,' must have reference to some fixed point of time. It cannot, as pointed out in the Bombay case, have reference to some date long anterior to the date of the proceedings being instituted, nor can it refer to a point of time subsequent to the commencement of the inquiry. The time to be taken is obviously the date of the Magistrate being satisfied there is ground for his intervention under Section 145, in other words, the date of the institution of the proceeding's.
4. Nor can we agree with the Magistrate in his opinion that there is no presumption that the Agra Bank retained possession of plots 1 and 2. There is a general presumption that when a vendor sells part of a property he retains all that he does not sell. In this case it is admitted that the two plots lie outside the boundary stones put down by the Murree Brewery Company. This would of itself be sufficient to throw upon Mr. Leishman the onus of proving that he was in possession. There is, however, no room for any presumption at all about the matter, for in his evidence Mr. Leishman states: 'On November 4th, 1893, I took possession of disputed block No. 2. Of land on Murree Brewery side of fence in No. 1, I took possession on 4th November, 1893, and the portion of No. 1 on Bella Vista side in March 1894.' There is thus a clear admission that up to these dates possession was with the Agra Bank, and the sole question for determination is whether there is evidence that the Bank has been dispossessed since those dates....
5. From this it appears that no effective possession was taken by Mr. Leishman in March as he claims, and the Bank still remained in possession up to May notwithstanding the trespass.
6. On these grounds we must set aside the order of the Magistrate attaching plots 1 and 2, declare that the Agra Bank is entitled to retain possession till evicted in due course of law, and forbid all disturbance till such eviction.