1. This is a Rule granted in' respect of Section 145, Criminal Procedure Code, proceedings taken by the Sub-Divisional Officer of Uluberia with regard to So plots of land. All these plots are held by the tenants on a yearly rent of half the produce. The parties to these proceedings are first party, the perchaser at a putni sale and so no putnidar, and second party, the lakherajdar. The dispute between them is, which of them has the right to collect this rent. The order of the Magistrate is not very happily worded but it is easy to see what he means. He has found that the rent of certain plots has been received by the first party and of certain other plots by the second party, and has declared that each party should remain in possession of the plots of which they have been respectively receiving the rents.
2. As regards 20 of the plots, there is no dispute as to what tenants are in possession. As to the remaining 13 there is a dispute. It is covious that with regard to those 13 the Magistrate ought not to have passed any order in these proceedings in the absence of the tenants, because they might be very seriously prejudiced by an order in favour of one or other of the parties to these proceedings.
3. With regard to plots No. 10 in Nasirchak, Nos. 1 and 6 in Salageria and No. 1 in Charberia, they are not claimed by the second party and the first party may properly remain in possession of the rents of these plots. So also with regard to plots Nos. 1 and 15 in Panadhara. That makes six plots of which the first party is entitled to collect the rents. With regard to plots Nos. 1 to 5 and 7, 8, 9 and 11 of Nasirchak, there is no dispute as to which tenants are in possession, nor is there any dispute as to the tenancy of plots Nos. 8 and 9 in Fanadliara and Nos. 3, 4 and 5 in Salageria. The order, therefore, of the Magistrate with regard to these plots may stand.
4. The plots in respect of which the tenancy is in dispute are plots Nos. 1 to 7 and 10 to 14 of Panadbara and No. 2 in Salageria. As to those 13 the order must be set aside.
5. We should refer to the argument which has been put forward on behalf of the first party that Section 145, Criminal Procedure Code, could not refer to a half share of the produce. That argument appears to us to be based on a fallacy. It is perfectly true that if it was a question of dividing a hitherto undivided share, the section might not apply. But here it is a question of rout and it so happens that the rent is half the share of the produce, but there is no question of shares as between the two parties to the proceedings. The question of division of the produce only arises when the tenant comes to pay his rent.