Rampini and Mookerjee, JJ.
1. This is a Rule obtained by a decree-holder auction-purchaser, calling upon the judgment-debtor and another person, both claimants under Section 335 of the Civil Procedure Code, to shew cause why an order made by the Munsiff of Uluberia under that section should not be set aside. The facts, which have given rise to these proceedings, are practically undisputed. The present petitioner Rrajabala obtained an ex-parte decree for rent against Gurudas Mundle, on the allegation that she was the landlord of an agricultural holding in the possession of the latter. Gurudas made an application to have the ex-parte decree set aside, but was unsuccessful. The decree-holder then took out execution, the property was sold and purchased by herself. She then obtained delivery of possession, with the result that the judgment debtor Gurudas was ousted from the holding. An application was thereupon made under Section 335 of the Civil Procedure Code, to the Court, which had delivered possession to the decree-holder, auction-purchaser, by the judgment-debtor Guiudas and another person, Behari Lal Roy Chowdhry, who claimed to be the landlord of the holding in the occupation of Gurudas and alleged that he had been in possession of it by receipt of rent from the latter. The application was resisted by the purchaser on the ground that it was not maintainable under Section 335 of the Civil Procedure Code. The learned Munsiff overruled this objection, and holding upon the evidence that the second claimant held as tenant under the first claimant, ordered that the applicants do recover possession of the land claimed. The auction-purchaser thereupon moved this Court and obtained the Rule now under consideration.
2. In support of the Rule it is argued, first, that so far as the judgment-debtor was concerned, it was not competent to him to make an application under Section 335 of the Civil Procedure Code, Secondly, that so far as the first claimant was concerned, as he claimed to have been only in constructive possession, he could not be said to have been dispossessed within the meaning of Section 335 of the Civil Procedure Code and was consequently not competent to maintain an application under that section, and thirdly, that in any event, an order could not be made in favour of the first claimant as he could not be restored to possession in the manner previously enjoyed by him, without restoring the judgment-debtor himself to possession, which was obviously not contemplated by the law.
3. In our opinion, the first and third grounds must prevail, but the second must be overruled.
4. In support of his first contention, namely, that the judgment-debtor is not competent to make an application under Section 335 of the Civil Procedure Code, the learned vakil for the petitioners relies upon the language of that section, which refers to resistance or obstruction by, or the dispossession of, a person other than the judgment-debtor. Section 334 of the Civil Procedure Code makes it obvious, that if a judgment-debtor resists or obstructs the auction-purchaser, the provisions of the Code embodied in Sections 329 and 330 shall apply, and the judgment-debtor may either be removed from the property under Section 318 of the Civil Procedure Code or punished under Section 330 of the Civil Procedure Code. It is manifest therefore that the application to the Court below in so far as it purported to be on behalf of the judgment-debtor , should not have been entertained. The first ground taken on behalf of the petitioner must consequently prevail.
5. In support of the second ground taken on behalf of the petitioner, it is argued that the term 'possession' in Section 335 of the Civil Procedure Code, means tangible and physical possession and that a person, who claims to have been in constructive possession by receipt of rent, is not competent to apply under that section. In support of this position reliance is placed upon the cases of Kisori Lal Goswami v. Lala Shib Lall (1897) 1. C.W.N. 343 and Ibrahim Mullick v. Ram Judy Rakshit (1903) I.L.R. 30 Calc. 710. It is contended, on the other hand, on behalf of the opposite party that the term 'possession' is not used in a restricted sense, but includes, not merely tangible or physical possession, but also constructive possession or possession in law, and in support of this proposition, reliance is placed upon the case of Banee Madlmb Butt v. Nund Lall Mojoomdar (1874) 22 W.R. 123. In order to determine which of these arguments ought to prevail, it is necessary to examine in the first place the provisions of the Code. It is obvious that Section 335 of the Civil Procedure Code has to be read with Section 334 of the Civil Procedure Code, and refers to two classes of oases, namely, (i) resistance or obstruction and (ii) dispossession. If these two cases are treated separately and the section was made self-contained it would stand as follows:
(1) If the purchaser of any immoveable property sold in execution of a decree is resisted or obstructed by any person other than the judgment-debtor, claiming in good faith a right to the present possession thereof, the Court on the complaint of the purchaser shall enquire into the matter of resistance or obstruction and pass such order thereon as it thinks fit.
(2) If in delivering possession of any immoveable property sold in execution of a decree, any person other than the judgment-debtor, claiming in good faith a right to the present possession thereof, is dispossessed, the Court on the complaint of the person so dispossessed shall enquire into the matter of the dispossession and pass such orders thereon as it thinks fit.
6. When the section is thus analysed it is found that the first proposition is a counterpart of the provision of Section 331 of the Civil Procedure Code, which treats of resistance or obstruction in case of delivery of possession of property comprised in a decree; the second proposition is a counterpart of the provision embodied in Section 332 of the Civil Procedure Code, which deals with dispossession in execution of a decree for delivery of property. Now the terms 'possession' and 'dispossession' are used not only in Section 335 but also in Sections 331 and 332 of the Civil Procedure Code and the scope and object of these sections indicate that these terms are used in the same sense throughout. If then we turn for a moment to Sections 318 and 319 of the Civil Procedure Code, we find that the former deals with delivery of actual physical possession and the latter treats of the delivery of constructive possession, both referring to delivery of property sold in execution of a decree. Provisions precisely analogous are to be found embodied in Sections 263 and 264 of the Civil Procedure Code, both of which refer to the delivery of immoveable property covered by a decree. Prima facie, therefore, it is difficult to see why the term 'possession' in Section 335 of the Civil Procedure Code should be narrowly construed and why it should be limited only to the case of actual physical possession. We must hold accordingly that the term 'possession' is not used in a restricted sense as relating to a mere tangible or physical possession, but includes constructive possession or possession in law, by receipt of rent or otherwise. The view we take is supported by a large body of authorities to which we shall presently refer.
7. In the case of Collector of Begrah v. Kristo Indur Roy (1869) 11 W.R. 191 the question arose as to the meaning of the term 'possession' in Section 230 of Act VIII of 1859, which substantially corresponds with Section 332 of the present Civil Procedure Code, and it was argued that a person in constructive possession cannot be said to have been dispossessed within the meaning of that section by delivery of possession. The learned Judges (Norman and Jackson JJ.) overruled this contention and held that a landlord must be taken to be in possession of the land which is occupied by his tenants from whom he is receiving rents and that if symbolical possession of the land is delivered by the Court to some other person, the landlord is so far dispossessed or put out of possession as to have a right to come in and ask for redress under Section 230 of Act VIII of 1859. The same view was taken in Bhyrub Sircar v. Sham Manjee (1871) 15 W.R. 70 where Bayley and Dwarka Nath Mitter, JJ. held that the possession by receipt and enjoyment of rent is as good in law as actual occupation-and that the section ought not to be restricted to cases in which, the party seeking for relief is in personal occupation. A similar view was adopted in the cases of Asgur Alt v. Asgur Ali (1873) 20 W.R. 373, and Banee Madhub v. Nund Lall (1874) 22 W.R. 123, in the former of which it was ruled that possession through a mortgagee was sufficient to sustain a claim under the section.
8. The case of Zuhoorun Begum v. Syud Mahomed Wajed (1872) 18 W.R. 87, turned upon the construction of Section 269 of Act VIII of 1869, which corresponds substantially with Section 335 of the present Civil Procedure Code, Sir Richard Couch, C. J., in delivering the judgment of the Court, observed that, what gives jurisdiction to a Court to entertain an application under that section is the executing of the decree by either the actual delivery of possession, when the property is in the occupancy of the defendant, or by the symbolical delivery of possession, when the property is in the occupancy of a tenant and there is a resistance or obstruction. It may be observed that the language of Section 269 was more specific than that of Section 335 of the present Code, and referred expressly to a claim to possession of the property 'as proprietor, mortgagee, lessee or under any other title,' It is difficult, however, to hold that the omission of these words has necessarily the effect of narrowing the construction, which ought to be placed upon the term 'possession.'
9. A question somewhat similar to the one now raised before us, was considered by the Bombay High Court in the case of Maneharam v. Fakrchand (1901) I.L.R. 25 Bom. 478. The majority of the learned Judges, who heard that case, held that the term 'possession' as used in Section 331 of the Civil Procedure Code, is not limited to actual physical possession, but includes also constructive possession, such as possession through a tenant; where, therefore, premises sought to be recovered in execution, are in the occupation of tenants and the landlord of such tenants obstructs the officer executing the decree, the claim of such landlord may be investigated under Section 331 of the Code. Mr. Justice Candy reviewed many of the earlier authorities on the point and came to the conclusion, that there was a current of decisions in favour of the view, that under that section a claim might be preferred by a person, other than the judgment-debtor when such claimant was not in personal occupation of the land, but claimed to be in possession through some other person, who was in actual occupation. No doubt, there are points of difference between Sections 331 and 335 of the Civil Procedure Code. For instance as pointed out in Mahip Rai v. Dwarka Rai (1905) 2 All. L.J. 132, whereas a proceeding under Section 231 of the -Civil Procedure Code is in substance a suit for property in which the question of title and not merely that of possession is determined, a proceeding under Section 335 of the Civil Procedure Code leaves it open to a party to have the question of title litigated in a separate suit, which, when instituted, cannot be treated as a continuation of the summary application, but can only be brought in a Court of competent jurisdiction. We are not unmindful that even in respect of a proceeding under Section 331 of the Civil Procedure Code, it has been held in Mahomed Isub v. Bashotappa (1903) I.L.R. 27 Bom. 302, that the only issue which properly arises is not one of title, but merely whether the person obstructing was in possession on his own account or on account of some person other than the judgment-debtor. But whichever view of the scope of Section 331 of the Civil Procedure Code is accepted, it appears to us to be clear, that the terms 'possession' and 'dispossession' as used in Section 335 of the Civil Procedure Code have the same meaning as they have in the analogous provisions of Sections 331 and 332 of the Civil Procedure Code, and we are entirely in accord with the view taken by the learned Judges of the Bombay High Court, that such possession includes -actual and physical occupation as well as constructive and symbolical possession. This view is also supported by the observations of the learned Judges of the Madras High Court in the Full Bench case of Chidambara Patter y. Rama Samy Patter (1903) I.L.R. 27 Mad. 67. The cases of Kiseri Lal Goszcami v. Lala shib Lall (1897) 1 C.W.N. 343 and Ibrahim Mullick v. Ram Jadu Rakshit (1903) I.L.R. 30 Calc. 710 are really not opposed to this view. In the first of these cases the applicant under Section 335 of the Code of Civil Procedure did not allege that he had been dispossessed by the delivery of symbolical possession of the lands to the auction-purchaser, and it was found, as a matter of fact, that his possession had not been interfered with, and he was actually in receipt of rent from the tenants. Under these circumstances, the Court held, and in our opinion rightly, that the provisions of Section 335 of the Code of Civil Procedure did not apply to the case, and that the applicant had no right to any relief under that section. In the second case similarly, the applicant under Section 335 of the Civil Procedure Code was found to be in possession in spite of the proceedings for the delivery of symbolical possession, and the learned Judges held that as he had not been dispossessed he was not entitled to apply in the summary way authorized by the section. The facts of the case now before us have, therefore, no similarity to the circumstances of the case then before the Court. Here the first claimant alleges that the second claimant as his tenant and on his behalf was in physical occupation of the property, and as by delivery of possession of the land to the purchaser, the tenant has been actually ousted, his own possession to that extent has been interfered with, and he himself has been dispossessed within the meaning of Section 335 of the Civil Procedure Code. This argument appears to us to be sound. As pointed out in the case of Znhoorun Begum v. Siud Mahomed Wajed (1872) 18 W.R. 87 the object of this provision of the law is that there should be a power in the Court to prevent anything, which would be an offence against the public peace, taking place in execution of decrees, and whether the obstruction or resistance is due to a person other than the judgment-debtor claiming to be in actual or constructive possession of the property, the Court has jurisdiction to investigate into the matter. If, therefore, the Court has jurisdiction in a case of resistance or obstruction by a person either in actual or constructive possession, the inference is irresistible, that the Court has the same jurisdiction in a case of dispossession, whether the person deprived of possession was in physical occupation or in symbolical possession. We must hold accordingly that the first claimant was entitled to make the application under Section 335 of the Civil Procedure Code, although he alleged that he was in possession through his tenant, who had been ousted from the land by the delivery of possession to the purchaser. The second point, therefore, must be answered against the petitioner.
10. The third point taken on behalf of the petitioner is that as an order under Section 335 of the Civil Procedure Code could not be made in favour of the judgment-debtor, who is the second claimant, no order could be made in favour of the first claimant, who could at most claim to be restored to possession as alleged to have been enjoyed by him previous to dispossession. In our opinion, this contention is well founded and must prevail. The order of the Court below, as we understand it, has the effect of replacing the judgment-debtor in actual possession of the land, and of declaring that the first claimant is entitled to be in constructive possession by receipt of rent from him. The manifest result of this order is to nullify the effect of the provisions of Sections 334 and 335 of the Civil Procedure Code, under which the judgment-debtor is not entitled to be restored to possession of the land, which has been sold as his property. If A purchases immoveable properties at an execution sale as the property of a judgment-debtor B, and in obtaining delivery of possession dispossesses Y, who is found to be in actual occupation, Y is undoubtedly entitled to maintain an application under Section 335 of the Civil Procedure Code, but if Y' does not choose to apply, X, who claims to be the landlord of Y and who alleges that he has been in possession through Y, is also entitled to apply under Section 335 of the Civil Procedure Code, because as soon as Y is dispossessed, his eviction amounts in law, to a dispossession of X. Upon an application by Y, if the Court finds, that A was not entitled to dispossess Y, i.e., a person other than the judgment-debtor, the purchaser A must be deprived of the possession, which he has obtained through the Court. Where, however, B and Y happen to be the same individual, A is entitled to possession as against B, and B is precluded from making an application under Section 335 of the Civil Procedure Code, the consequence is that X, who claims to be the landlord of B or Y, although he may not be incompetent to apply under Section 335 of the Civil Procedure Code, merely by reason of the fact that he claims to have been in constructive and not actual possession, cannot get any relief under-that section, because, if he is placed in actual occupation, the Court gives him a possession which according to his own allegations he never enjoyed before, and on the other hand, if the Court restores him to possession through the person, whom he alleges to be his tenant, the Court practically restores the judgment-debtor to possession in contravention of the provisions of Sections 334 and 335 of the Civil Procedure Code. Under such circumstances we must hold that the first claimant is not entitled to an order in his favor under Section 335 of the Civil Procedure Code. It was argued by the learned vakil, who appeared to show cause, that, as observed in the case of Znhoorun Begum v. Spud Mahomed Wajed (1872) 18 W.R. 87, the Court is not bound under Section 335 of the Civil Procedure Code to pass any particular order, and as the Court has a discretion in the matter, this Court, in the exercise of its revisional jurisdiction under Section 622 of the Civil Procedure Code, ought not to interfere. No doubt, this Court is very slow to interfere in revision with an order made by a subordinate Court in the exercise of its discretion. In the present case, however, the effect of the order of the Court below is to nullify the provisions of Section 335 of the Civil Procedure Code. As to one portion of the order, namely, so much of it as is in favor of the judgment-debtor and directs him to be restored to possession, it is clearly without jurisdiction; for when a Court, upon an erroneous view of the scope of a section of the Code, applies it to a case, to which it has no application, it acts without jurisdiction; see Shivanathaji v. Joma Kashinath (1883) I.L.R. 7 Bom. 341, Nusser-wanjee v. Meer Mynoodeen (1855) 6 M.I.A. 134, 155 and Jagodanund Singh v. Amrita Lal Sircar (1895) I.L.R. 22 Calc. 767. As to the other portion of the order, namely, so much of it as is in favor of the first claimant, and directs him to be restored to possession, it is based upon and inseparably connected with the order in favor of the judgment-debtor, and as it has the effect of making Section 335 of the Civil Procedure Code practically inoperative, it may be regarded, if not as an order made without jurisdiction, at any rate, as an order made in the illegal exercise of jurisdiction; see Mohunt Bhagwan Ramanuj Das v. Khettermoni Dassi (1896) 1 C.W.N. 617. The case therefore falls within the -terms of Section 622 of the Civil Procedure Code, and upon the merits we are satisfied that it is one which calls for our interference.
11. The result, therefore, is that this rule must be made absolute and the whole of the order made by the Munsiff on the 9th September 1905 discharged. The petitioner is entitled to costs both here and in the Court below.