1. The plaintiff's case was that he was a co-owner with the defendant of certain properties which his co-owners leased to him, and so was entitled to exclusive enjoyment. While in this exclusive enjoyment he was disturbed in his possession by the defendants. He filed a petition under Section 145, Criminal P. C., and as a result of the enquiry the Magistrate was unable o say who was in possession. He therefore attached the property and put it in the possession of the local Tahsildar, directing the parties to file a civil suit. Instead of filing a regular suit, the plaintiff filed a suit under Section 9, Specific Relief Act within six months of the date when, according to him, he was dispossessed by the defendants. That suit has been allowed.
2. Two questions arose for decision. One was whether in view of Section 145, Criminal P. C. proceedings, a suit under Section 9, Specific Relief Act was maintainable and (2) whether a suit will lie by one co-owner for possession against other co-owners.
3. As to the first point, it is argued that since the property is in custodia legis, no suit for possession against the defendants who were no longer in possession would lie. The learned advocate for the petitioner relies on Leo Moore v. Manoranjan Guha, 7 C. L. J. 547: 12 C.W.N. 696. That was a somewhat similar case, except that the date of dispossession alleged by the plaintiff in his suit under Section 9 was not the date when he was originally dispossessed prior to the Section 145 proceedings, but the date on which he alleged that he was dispossessed by the defendants in pursuance of the order under Section 145, Criminal P. C. The learned Judges there held that such a dispossession was, in the words of Section 9, Specific Relief Act, dispossession in due course of law and so would be a bar to a suit under Section 9 (4). When a similar case came up before another Bench of the Calcutta High Court in Azimuddin Ahmed v. Alauddin, 43 I. C 153: A. I. R. 1918 Cal. 137, Teunon J. who dictated the principal judgment, stated :
'In support of this view (the view that a suit would lie) and of the view contended for by the opposite party, we have been referred to two cases, one decided by the High Court of Allahabad and reported as Jwala v. Ganga Prasad, 30 All. 331 : 5 A. L. J. 297 and another decided by the High Court of Bombay and reported as Nagappa v. Badruddin, 26 Bom. 353 : 3 Bom. L. R. 919. These oases would seem to be in point, except in so far that it does not appear that in those cases there was any intervening attachment. But we are not bound to follow those decisions, though they are entitled to our utmost respect, and indeed, if the matter were res integra I am not prepared to say that I might not have been disposed to take the same view.'
The learned Judge then went on to say that he was bound by Leo Moore v. Manoranjan Guha, 7 C. L. J. 547 : 12 C. W. N. 696, which he was unable to distinguish. Huda J., who added a few words after the principal judgment had been dictated, said:
'I wish only to add that but for the intervening attachment I would have held that the mere order under Section 145, Criminal P. C., was not sufficient to deprive the plaintiff of the right to relief in a suit under Section 9, Specific Relief Act.'
As already pointed out, Leo Moore v. Manoranjan Guha, 7 C. L. J. 547 : (12 C. W. N. 696, can be distinguished from the present case, in which the plaintiff relies on his dispossession on a date prior to the 145 proceedings, a dispossession which had, up to the time of filing suit, kept him out of possession. I find myself in respectful agreement with the decisions in the cases cited before the learned Judges in Jwala v. Ganga Prasad, 30 ALL. 331: 5 A. L. J. 919, which Teunon J. would have followed had he not found himself bound by the earlier Calcutta decision.
5. Although the possession of the plaintiff has been superseded by the attachment of the criminal Court. I am unable to see why that attachment would be a bar to the filing of a suit under Section 9. The criminal Court was merely holding the property until the parties established their rights in a civil Court. If in a suit the plaintiff has established his right to possession, the criminal Court will respect that finding and deliver up possession to the plaintiff. The cause of action in this suit arose, as I have already said, out of the disturbance of the plaintiff's possession by the defendants prior to Section 145 Criminal P. C., proceedings.
6. It has been argued that since the proceedings under Section 9 are of a summary nature, they can stand on no better footing than the proceedings under Section 146, Criminal P. C. and that therefore if the plaintiff is to be given any relief it can only be the result of a regular suit, The plaintiff can however only be barred from obtaining relief in a suit under Section 9 if his suit is not maintainable or if, on account of some prior decision, the matter is subject to the bar of res judicata. As neither of these conditions have been fulfilled, the plaintiff was entitled to a decree if his allegations were found to be true
7. If the plaintiff is to succeed in a suit against his co-tenants it could only be on the ground that he was entitled to exclusive possession. He put forward a case that he was entitled to such exclusive possession, because his co-tenants had leased the land to him. The lower Court seemed to have accepted the plaintiff's case on that point. The plaintiff was therefore entitled to the relief he prayed for. The petition is dismissed.