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Agni Kumar Das Vs. MantazaddIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1928Cal610,113Ind.Cas.181
AppellantAgni Kumar Das
RespondentMantazaddIn and anr.
Cases Referred and Akhoy Mondal v. Basir A.I.R.
Excerpt:
- rankin, c.j.1. in this case an application in revision under section 439, criminal p.c., has been made to the court against an order of 13th august 1927, made by the deputy magistrate of comilla under section 145 of that code in proceedings instituted on 9th may 1927. a rule having issued and cause being shown before the division bench, a reference has been made to this full beach. three points are formulated in the order of reference, viz.-(1) do the words 'actual possession' in sub-section (1), section 145, civil p.c., mean actual personal physical possession even though wrongful, e.g., that of a recent trespasser in actual physical possession at the time of the proceedings under section 145.(2) does the word 'dispute' in the same subsection mean actual disagreement existing between the.....
Judgment:

Rankin, C.J.

1. In this case an application in revision under Section 439, Criminal P.C., has been made to the Court against an order of 13th August 1927, made by the Deputy Magistrate of Comilla under Section 145 of that Code in proceedings instituted on 9th May 1927. A rule having issued and cause being shown before the Division Bench, a reference has been made to this Full Beach. Three points are formulated in the order of reference, viz.-

(1) Do the words 'actual possession' in Sub-section (1), Section 145, Civil P.C., mean actual personal physical possession even though wrongful, e.g., that of a recent trespasser in actual physical possession at the time of the proceedings under Section 145.

(2) Does the word 'dispute' in the same subsection mean actual disagreement existing between the parties at the time of the proceedings under Section 145 even though the question as to the right to possession has already been decided by a civil Court.

(3) Has the law been correctly laid down in the case of Ambar Ali v. Piran Ali : AIR1928Cal344 or in the case of Atul Hazra v. Uma Charan [1916] 20 C.W.N. 796 and Akhoy Mandal v. Basir Rai A.I.R. 1923 Cal. 176.

2. By the rules of this Court (Ch. 7, Rule 5, Appellate Sides Rules) the case itself is referred to us and we have not merely to answer the specified points of law.

3. In these circumstances it is necessary to set out the facts. The applicant before us was the 1st party before the Magistrate. It appears that he took a mortgage in 1906 from Moktar and his wife Arjatannessa; that he sued upon it and after the wife's death recovered a mortgage decree on 15th September 1919, for sale against Moktar and the heirs of the wife. On 16th September 1923, he applied to execute the decree alleging that limitation was saved by an arrangement by which in 1920 he was put in possession of certain portions of the land in lieu of interest. In the end this question was concluded by a decree of this Court on 11th December 1925. The finding was that as against the minor heirs of the wife the decree was no longer capable of execution as the arrangement relied upon to save limitation was not so made as to bind the minors. Thereafter the property was sold as against Moktar and purchased by the decree-holder; an application to set aside the sale for non-service of notices, etc., was prosecuted to the High Court and was dismissed, but this Court on 11th May 1925, made it clear that no decision was arrived at, or could in those proceedings be arrived at, on the question whether the original owner was Moktar or his wife or on the question of their shares. On 8th February 1926, the applicant, i.e., decree-holder first party, was put in possession pursuant to his purchase. It is quite clear that he was not put into actual possession of the homestead and the finding is that he was given possession of the scattered plots of agricultural land by the planting of a bamboo.

4. The Magistrate has found possession to be with Montazaddin and Afajaddin of the 2nd party. These are sons of Moktar. Afajaddin is the minor or one of the minors against whom the decree was held to be barred in execution. He is an admitted heir of his mother Arjatannessa. It is clear enough therefore that as against his right to possession or as regards the extent of his share there has been no decision of any Court of law.

5. The applicant contends that the Magistrate had no jurisdiction to take action under Section 145; and, alternatively, that if he did take such action he was bound in law to find that the applicant was in possession by reason of the delivery of possession given by the civil Court on 8th February 1926, some 15 months before the date of the Magistrate's proceedings. This argument proceeds upon the view: (1) that the section refers only to bona fide disputes and not to cases in which the claim on one side is without any rational ground or is made without any real belief in its validity; (2) that the section is intended to make interim provision until disputes are determined by the civil Court and that once the civil Court has determined the matter any dispute is at an end, or at all events [to use the words of Glover, J., Raniganj Coal Ass. v. Hem Lall [1879] 24 W.R. Cr. 17.

There is no more place for a summary order which proceeds not upon title but on mere possession.

6. In support of this line of reasoning the following cases are relied upon : Shama Sundary v. Jardine Skinner & Co. [1866] 6 W.R. Cr. 10. Rai Mohun Roy v. Wise [1871] 16 W.R. Cr. 24, Raniganj Coal Ass. v. Hem Lall [1879] 24 W.R. Cr. 17, In re. Chutraput Singh [1879] 5 C.L.R. 200, Bhola Nath Ghosh v. Mathoor Mundle [1880] 7 C.L.R. 516, Gobind v. Abdool [1881] 6 Cal. 835, Doulat Koer v. Rameswari [1899] 26 Cal. 625, Kunja Behari v. Khetra Pal [1901] 26 Cal. 208, Atul Hazra v. Uma Charan [1916] 20 C.W.N. 796, Abhoy v. Basw Rai A.I.R. 1923 Cal. 176, Behari Gir v. Rani Bhubanesiuari [1919] 5 Pat. L.J. 104.

7. The principle or practical necessity which appears to be at the root of the appellants' contention, and which in not a few of the cases cited has been held to govern the construction of Section 145 and the enactments which preceded it has been stated as follows : That the Magistrate is not competent to interfere with the execution of a decree of the civil Court. That he is bound to maintain the party in possession who has obtained a decree and recovered possession in execution of that decree. That there would never be an end to litigation if the Magistrate will not keep in force the decision of a civil Court regarding lands. These expressions will all be found in the judgment in Rai Mohun Roy v. Wise [1871] 16 W.R. Cr. 24 which is the leading case among those relied on by the applicant. In some of the cases, particularly when the decree in question has been passed or affirmed by the High Court, there is a certain amount of embroidery upon this theme which may well be ignored. But there is a reference to Indian conditions in the Raniganj Coal Ass. v. Hem Loll [1879] 24 W.R. Cr. 17, which may usefully be recalled:

If the law were otherwise it would be worth no one's while to go to the trouble and expense of proving title in a regular suit, for the effect of a decree might be to a great extent nullified by parties contriving to get into some kind of possession (which they could easily do in forest lands like those now in question) and then demanding to be retained in possession till a second suit was brought and decided : Per Glover. J., in Raniganj Coal Ass. v. Hem Lall [1879] 24 W.R. Cr. 17.

8. Now I cannot find that this point, that he had no jurisdiction, was taken before the Magistrate. It appears to me that the applicant contended that he was entitled to an order declaring his possession under Sub-section (4) and although I appreciate that the Magistrate took action on a police report and not on the applicant's complaint, I think the applicant has waited and taken the chance of a judgment in his favour. In these circumstances I should have great difficulty in giving effect to his contention at this stage : Kulada Kinkar Roy v. Danesh Mir [1906] 33 Cal. 33, Basanta Kumari v. Mohesh Chandra [1918] 40 Cal. 982.

9. Secondly, the principle appealed to is not applicable to the facts of this case. It is not true that the applicant has obtained any decision from a civil Court establishing as against Afajaddin his right to possession of these plots. The whole question of the latter's right has been kept open It has not been held that the mortgage decree can be executed against him or that he can be ejected on the strength of the sale held thereunder. The first party has been claiming to be entitled to, and to have obtained, exclusive possession. It has not been determined what the share of Mantajuddin is How in these circumstances it can be contended that the case is outside the jurisdiction given to the Magistrate by. Section 145 is not intelligible to me.

10. However, as the Magistrate has found in favour of Mantajaddin also, I will deal in the third place, with the question whether the jurisdiction given by the section is limited in the manner contended for by the applicant. This raises the second of the three questions stated for our decision by the Division Bench. Does the word 'dispute' in Sub-section (1) of Section 145 refer only to a 'bona fide' dispute, or to a dispute which has not already been decided inter partes by a competent Court? If so does the Magistrate's jurisdiction depend upon a finding: of fact that both parties to the dispute have an honest belief in the validity of their claim to be entitled to possession or has the Magistrate to examine the respective claims as to the right to possession to see whether on both sides there is some reason in the claim. In Gobinda Chunder Moitra's case [1881] 6 Cal. 835, at 841, Field, J., said:

I take it that the term dispute...means a reasonable, dispute, a bona fide dispute, a dispute between parties who have each some semblance of right or supposed right.

11. What exactly is this test?

12. Again, where there has been a decree inter partes determining the question of right but no delivery of possession in execution thereunder, is the jurisdiction under Section 145 ousted? In point of logic it would seem that a decree deciding the right would be enough, and the language of the judgments in Rai Mohun Boy's case [1871] 16 W.R. Cr. 24 and the Raniganj Coal case [1879] 24 W.R. Cr. 17 is to this effect. Though in the former case there had been delivery of possession, tin the latter case no such fact appears from the report. On the other hand the principle involved cannot be said on the authorities to be applicable in the absence of delivery of possession or its equivalent.

13. Again, in holding the principle to be applicable reliance has in several cases been placed on the fact that the decree or delivery of possession thereunder has been recent or 'within a time not remote' (per Prinsep, J. in Doulat Koer's case [1899] 26 Cal. 625 or within a very short time, that is within three months : Kunja Behari's case [1901] 26 Cal. 208.

14. The question arises whether it is for the Magistrate to enquire whether the claim of one of the parties is based on a reasonable case consistent with the decree, e.g., on subsequent transactions between the parties and whether in the absence of such a case any decree however old will oust his jurisdiction.

15. Other questions arise : as regards decrees which on a complicated narrative and argument are said to be wholly without jurisdiction and a nullity whether because minors were not duly represented or for other reasons; as regards decrees to set aside which proceedings have been taken or are threatened; as regards decrees which are statute-barred for execution purposes. If in any such case the person who recently, or whose predecessor in-title years ago, failed before the civil Court claims to be in actual possession or is found to be in actual possession is the Magistrate's jurisdiction under Section 145 ousted altogether or dependent upon his being satisfied by an examination of the claim to title that it is consistent with the civil Court's decree? In Abhoy Mondal's case A.I.R. 1923 Cal. 176 A had obtained symbolical possession in a suit against B before a Court which on the Magistrate's view had no jurisdiction. The Magistrate acting on a prior entry in the Record-of-Rights held B to be in possession. The High Court held that it was not for the Magistrate to question the validity of a decree that hid not been set aside by a competent Court. His order was set aside as being grossly irregular, but it was not said to be without jurisdiction.

16. The difficulties to which I have referred arise from the doctrine that because a decree has at some time been passed inter partes and possession has at some time been delivered thereunder there is no dispute or no bona fide dispute or no such dispute as is contemplated by Section 145. In my opinion the doctrine itself and much of the reason upon which it has been rested are erroneous and I much regret in the interests of the public peace and of the Magistrate whose duty is to preserve the peace that these questions have not long ago been brought before a Full Bench in order that the jungle of decisions might be reduced to order. In Syed Ambar Ali v. Teran Ali : AIR1928Cal344 may be found lists of contradictory decisions and that the contentions advanced before us by the applicant have failed after over fifty years to establish themselves in our case law may be shown by a reference to that case and to such cases as Kuloda Kinkar Roy v. Danesh Mir [1906] 33 Cal. 33 and Shahabaj Mandal v. Bhajahari Nath A.I.R. 1922 Cal. 364. In my judgment they have failed so to do : (1) because they are wholly without warrant in the statute and represent an unworkable and unreasonable attempt to thrust into the section qualifications and conditions which are rejected by its letter no le3S than by its general intention; (2) because these qualifications and conditions have their sources in misapprehension of certain principles of law.

17. In exhibiting the law as I find it in the Code I will take note first of the fact that Section 145 is not the only weapon with which a Magistrate is entrusted for the maintenance of the peace in connexion with dispute over land. He has a power specially adopted to cases of urgency under Section 144 and he has a power under Section 107 which in some cases will suffice. It is clear enough that whatever force be given to the word 'shall' in Sub-section 1, Section 145, it need in no way embarrass any Magistrate in exercising his discretion. If he is of opinion that an order under Section 107 will meet the case and proposes to make one he has only to make it to justify himself in holding that the dispute no longer is likely to cause a breach of the peace; he can do this either without taking action under Section 145 or at any stage of proceedings under that section. If he thinks that the case calls for action under Section 144 he can take such action and if ha thinks this sufficient to prevent the likelihood of a breach of the peace he can postpone all action under Section 145. Whether in the midst of Section 145 proceedings he can on making an order under Section 144 drop such proceedings is a particular question on which I say nothing. In exercising his discretion the Magistrate will regard as supreme the necessity of maintaining the public peace. The attempt to classify cases as appropriate to one section or another can be carried only a little way and it is not to be wondered at if the decided cases contain little general advice of practical utility. The discretion is to be exercised on the particular facts of each case considered as a whole and by an officer with knowledge of the local conditions. I am not saying that under the present Code it cannot be controlled or corrected in revision. But I do say first that it is an error to suppose that decree-holders are a class of men so favoured by the law that in any conflict between their convenience and maintenance of the public peace the latter must give way under Section 145; and secondly, that the conditions of jurisdiction are reasonably plain and complete under each section of the statute.

18. Where the express conditions are satisfied and the Magistrate has acted under Section 145, according to its terms, it is still possible that for special reasons the re-suit of his action may give just cause of complaint. Thus in Aran Sardar v. Hara Sundar A.I.R. 1923 Cal. 95 the Magistrate had made a previous order under Section 145 between the same parties in interest declaring the first party to be in possession he second party's successor-in-interest disobeyed this order and secured a footing on the land. Instead of taking steps to enforce his previous order the Magistrate drew up a new proceeding under Section 145 and made an interim attachment of the land. The High Court held this to be an abuse of his powers.

19. Where orders are made under more than one section the Magistrate must be careful that his action as a whole does not operate to defeat the rights of the party in possession. It would be obviously wrong to use Section 144 to forbid a party in possession to exercise any rights of possession and then later on to hold under Section 145 that no one is in possession and attach the land: cf. Joyanti v. Middleton [1900] 27 Cal. 785. Nor could a Magistrate properly so use his power as to defeat, revisional jurisdiction, e.g., by commencing a fresh proceeding under Section 145 pending the decision of a rule granted by the High Court to set aside a previous order of the same character: cf. Pran Ballav Mitter v. Rash Behari Mitter [1906] 4 C.L.J. 418. Nor can the section be applied to disputes between parties who are in joint-possession as a matter of fact as distinct from actual exclusive possession of separate plots, Basanta v. Mohesh [1918] 40 Cal. 982. These illustrations will serve to show that it is not always enough for a Magistrate to be within the letter of the section. He must be within the true construction of it and even then he must not abuse his power. The contentions of the applicant before us, however, are not justified by these considerations.

20. I dissent altogether from the doctrine that the words 'dispute likely to cause a breach of the peace' refer only to bona fide disputes or only to reasonable disputes. The first sub-section is concerned with the maintenance of the public peace and with the reality of disputes, the danger of disputes. It matters little to a broken head whether it be broken in good faith or in bad and the Magistrate can have no preference. When he finds from a police report that he must take action, he can hardly be in a position to enter into such question. The section requires him to call for written statements and to enquire only as to the fact of actual possession. The nature of the claim to title may affect the question of fact as to possession, but he is expressly debarred from enquiring, into the merits of the claims. It has been contended before us that he may and must enquire into the bona fides and the reasonableness of claims under Sub-section 5, but it is clear to me that this, provision is made with no such object. I do not know that it is generally true in India or elsewhere that unreasonable or mala fide disputes are less dangerous than others or more readily accommodated. A Court of law might as, well commit itself to the proposition that family disputes are always the, mildest. The section is based upon the notion that whether a man has the best or the worst claim in the world he must not take the law into his own hand and so disturb the public peace.

21. Nor, on the other hand, is it clear to me that disputants with mala fide or unreasonable claims are specially amenable to orders for security under Section 107. The Magistrate's discretion in such matters must be determined by the facts as a whole. In particular everything depends upon the question which party is now in actual possession? To say that where the claim of one party is mala fide or is unreasonable the Magistrate cannot act under Section 145 and should act under Section 107 is both bad advice and bad law. If the party who seems to have no case ontitle is out of possession there can be no reason why the other party's possession should not be declared. But if he is really and actually in possession what then? Let us suppose that the case cannot be brought under Pro., Sub-section 4, Section 145 or under Section 522. Is a Magistrate whose power to restore possession so strictly limited to say to one party that he may take possession at his own hand and to the other party that if he does not withdraw or let himself be evicted peaceably he will have committed an offence (what offence?) and forfeited his security. I cannot think it at all clear that the words in Section 107 'or to do any wrongful act that may probably occasion a breach of the peace' can reasonably or legally be pushed so far; and, if want of bona fides in one party is to justify an indirect order for recovery of possession. I fear that Magistrates will be busy and that the public peace will suffer even more than civil justice from this magisterial form of title suit. While a Magistrate acting under Section 145 is under no duty to enquire into the question of right there may be some rare cases in which both parties being out of possession the right of one party is so very clear as to make it more just and reasonable that he should act against the other under Section 107 than that he should attach the property so as to compel the former party to bring a suit. But there is great danger in inviting Magistrates to act upon their view as to the right of parties, and jurisdiction under Section 145 or Section 146 cannot possibly be affected by any consideration of this character. Even in clear oases of this character the maintenance of the peace may make it wiser to attach under Section 146 than to order security under Section 107.

22. It is not a proposition of law, but I think it is a sound opinion, that when the Magistrate cannot after due enquiry decide as to which party is in possession, he will almost always act wisely in attaching the property under Section 146, and unwisely in attempting to deal with the matter under Section 107. As to Section 144 it is sufficient to point out that it is intended for eases requiring an 'immediate prevention or speedy remedy': Section 145 is an ordinary measure of precaution when breach of the peace is 'likely.' How little substance there is in this part of the appellant's contention may be seen from the definition of 'criminal trespass' in Section 441, I.P.C. This shows the importance which the substantive criminal law attaches to possession. For the rightful owner to enter upon land in the possession of a mala fide claimant with intent to intimidate or annoy him would be an act of criminal trespass. Finally, upon this part of the argument I would observe that the supposed need for bona fides and reasonableness has no special reference to the rights of decree-holders.

23. But the main ground upon which the appellant's contention rests and has not seldom been put, is a notion that it is the duty of the Magistrate 'to maintain the civil Court's decree.' There are senses in which a true meaning may be given to such a phrase, but for the present purpose and in the sense required by the argument it is the statement not of a principle but of an error.

23. In civil suits there is a limited class of cases in which the plaintiff is allowed to ask for no relief beyond a declaration of his rights. It is common in this province for a plaintiff who claims to be in possession to ask for 'confirmation of possession,' an ambiguous phrase which may cover several forms of relief which might be more accurately described. Again, it is a common-much too common-practice to ask for ancillary declarations in addition to the ordinary relief. Now where a plaintiff stands in need of relief other than a declaration it is for him to ask for it and to see that he gets it by execution of the Court's decree. Suits for ejectment are important examples of this principle. It is only in the case of decrees for joint possession or for delivery of immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy that the Civil Procedure Code knows anything of 'symbolical possession.' That is to be given by affixing a copy of the warrant and proclaiming the substance of the decree.

24. In other cases the Code directs that possession of immovable property is to be delivered to the party or to such person as he may appoint and if necessary by removing any person bound by the decree who refuses to vacate the property. It may or may not be useful to signalize the event, e.g., by planting a bamboo; but it is the business of the Court's officer to give actual possession to the party under Order 21, Rule 35(1) and to the purchaser under Rule 95. Rule 97 et seq of the same order make provision enabling any resistance to be overcome. The judgment-debtor or his creatures may be sent to jail bona fide claimants are protected. A decree-holder or purchaser who is entitled to possession can get it and if the Court's officer does not give it the Court will make him give it if applied to at the time. Once he is put into possession and the officer has effected the delivery the decree-holder has had his remedy. For purposes of further litigation he has incidental advantages in that partly or wholly he has cleared his title in a way readily proved and is entitled to the benefit of the doctrine of res judicata. But otherwise he is in no different position from that of a person who has come by the possession of land by inheritance from his grandfather or by purchase at a private sale. There are cases in which an injunction to restrain trespassers may be obtained but a previous decree is no necessary condition. The decree-holder, like any one else must maintain his own possession once he has obtained it. The law gives him the same assistance in this behalf as it gives to others and on the same terms in all material respects. It leaves to him the same liberty to part with his possession. Indeed he may be a decree-holder as against A and a trespasser as against B.

25. Now for the present purpose the duty of the Magistrate is to obtain possession; not to 'maintain the decree.' The terms upon which the Magistrate is to maintain any man's possession are laid down in the Criminal Procedure Code and in the Penal Code which have no separate law for decree-holders as a class. Against forcible and wrongful entry within two months of the proceedings the Magistrate can maintain possession under Section 145 by restoring it even after it has been lost : he can act after a conviction for criminal trespass under Section 522 in cases of a certain character and without any limit as to the date of the trespass. Whether be can, restore possession indirectly under any other of his powers may be a question. But the substance of the matter is clear enough. It is the civil Court's duty to give possession on the ground of right : it is the Magistrate's duty to maintain possession against force or show of force To say that when a Magistrate twelve months after a civil Court peon has delivered possession, finds that the judgment-debtor is back in possession of the land, he is interrupting or interfering with the execution proceedings of the civil Court, if he acts under Section 145, is a violent abuse of language. On the other hand it is true that if on a given date the plaintiff has been put into possession by the civil Court, however inefficiently or irregularly, then on that date the plaintiff got possession as against the defendant. The defendant's actual possession has been broken as a matter of fact even if only for the moment. This is as true of symbolical possession improperly so called as of any other possession though what happened at the time of delivery may well be important on the question whether the plaintiff continued in possession very long or was ousted in the following week. Still it is an error to hold in such cases that the decree-holder was never in possession [cf Atul Hazra's case [1916] 20 C.W.N. 796] or to ignore the delivery to him. This is a particularly grievous error in oase3 of boundary disputes or disputes as to outlying portions of the land delivered. Cases in which it has been said that the Magistrate has interfered with or nullified the civil Court's decree will on examination be found to be cases where the Magistrate has come to a wrong finding on the fact of possession by reason of this error : e.g., Shama Sundery's case [1866] 6 W.R. Cr. 10, Rai Mohun Roy's case [1871] 16 W.R. Cr. 24, Chutraput Singh's case [1879] 5 C.L.R. 200, Bhola Nath Ghose's [1880] 7 C.L.R. 516.

26. When large tracts of forest land or churs or inaccessible areas are recovered in ejectment it may well be true that the owner may find it difficult to look after his property or even to come to the Magistrate while dispossession is recent. This, however, does not show that it will be almost idle to appeal to a civil Court if Section 145 be applied to the actual facts of a case when breach of the peace is likely, in spite of the civil Court's decree. Still less does it justify a Magistrate in allowing breaches of the peace to take place when he can obviate them. It shows, that certain kinds of property are somewhat inconvenient possessions.

27. The same considerations seem to me to afford an answer to the contention that once the civil Court has pronounced upon the right of one party as against another there is no place for an order under Section 145 which proceeds upon mere possession. If the party is out of possession and is attempting to retake possession at his own hand forcibly so as to disturb the public peace, I am at a loss to know why the Magistrate should not require him to assert his right in the proper way. A civil Court by its decree can give possession. It does not attempt in the same suit to keep the plaintiff in perfect peace because this is impracticable; new causes of action require a fresh consideration of the facts The Magistrate is not there to give a form of execution that the civil Courts cannot give His duty in substance is to maintain possession because the forcible disturbance of possession is contrary to the criminal law. This is clear enough from the words 'until evicted therefrom in due course of law' which contrast with the words used in Section 146. Where possession cannot be shown in spite of a previous decree, and cannot be taken without a breach of the peace, the Magistrate is to take the land into his own possession by attachment and to hand it over not to the person whom he thinks to be entitled but to the person whom the civil Court decides to be entitled A breach of the peace requires the Magistrate to act : necessarily it makes place for an order which proceeds on 'mere possession' because it makes place for a Magistrate who is not the judge of titles or the bailiff of a ?civil Court.

28. On this question of jurisdiction to act under Section 145 I have discussed the principles involved in view of dicta in the decided cases. I do not propose to discuss all the cases, but there are a few old cases which have done much to introduce false doctrine on this subject. Shama Sundery's case [1866] 6 W.R. Cr. 10 may possibly have been one in which the Magistrate's order literally and not as a matter of hyperbole interfered with the execution of a civil Court's decree. The dates are not given nor is it quite clear what case was then pending in the miscellaneous department. But it is no authority on the question of jurisdiction to act under Section 145 if only for the reason that the Judges suggest that the Magistrate might have made an order under Section 319 of the Code of 1861 i.e., under the present Section 146. The same may be said of Ram Mohun Roy's case [1871] 16 W.R. Cr. 24, where it is said that the decree should have been maintained under Section 319.

29. In this case the delivery of possession would seem to have been given several years before the Magistrate's order but it was said that the Magistrate was not competent under Section 318 to 'interfere with the execution.' Both these were cases of disputed possession and the ruling seems to be : (1) that the Magistrate should have decided that neither party was in possession or that he could not satisfy himself as to which was in possession, (2) that then the previous decree of the civil Court would have under Section 319 enabled him to give possession to the decree-holder. This latter proposition seems to be highly questionable. These views do not seem to have been adopted in later eases but dicta in the judgments are often quoted. In the Raneegunj Coal case [1879] 24 W.R. Cr. 17, which was an undefended case, Glover, J. arrives for the first time at the full doctrine that once a civil decree is passed Magistrate's duty is to 'maintain the decree,' that he cannot institute proceedings under the present Section 145 and that he must cope with any breach of the peace by taking security. Chatraput Singh's case [1879] 5 C.L.R. 200 is no authority on the question of jurisdiction to act under Section 145 because the order made by the High Court was to declare him entitled to retain possession until ousted in due course of law. Possession of a hat had been given by the Nazir in March or April 1879. The Magistrate's final order was on 10th July of the same year, so the dispute followed close upon the delivery of possession. It appeared that the Nazir gave possession by a proclamation at the hat and by planting a bamboo elsewhere. The decree-holder maintained his possession by trying to collect his dues but the old proprietor also collected dues, and with more success. The Magistrate ignored the delivery of possession and went solely upon actual receipt of dues. The case was one in which the Magistrate came to a wrong finding as to the fact of possession. It was said that the Magistrate was not competent to nullify the action of a civil Court. Bhola Nath Ghose's case [1880] 7 C.L.R. 516 was exactly similar; it was a case of a wrong finding of fact that a person evicted from possession was still in possession on the ground that the landlord decree-holder had done no acts of cultivation. Here too the case arose immediately after the eviction and by his wrong notions as to possession the Magistrate had nullified the civil Court's degree by failing to recognize and maintain existing possession thereunder.

30. There is nothing in this case that can be questioned save for the approval of dicta in Rai Mohan Boy's case [1871] 16 W.R. Cr. 24 and in the Raneegunj Coal case [1879] 24 W.R. Cr. 17. In Gobind Chunder's case [1881] 6 Cal. 835 the same Magistrate had found under the Land Registration Act, that A was in possession and under Section 530, Criminal P.C., 1872 that B was in possession and not A. This latter proceeding was instituted while the former proceedings were still pending before the Commissioner. The case was a wretched instance of mishandling, and it appeared that there were no reasons for supposing that either A or B would commit a breach of the peace. There is nothing in the judgment of Pontifex, J., which can well be questioned, but Field, J., refers to the dicta in Rai Mohan's case [1871] 16 W.R. Cr. 24 and elaborates them. The dispute must 'be bona fide and reasonable, the dispute is at an end, the Magistrate must maintain the rights of the successful party, he must not neutralize the effect of the decree, he has no power to institute proceedings under Section 530(149) but must take security under Section 491(107). In Doulat Koer v. Rameswari [1899] 26 Cal. 625 A was given possession on 29th August under order made inter partes by the Civil Court and on 1st November initiated proceedings under Section 145. The Magistrate declared that Dulin Saheba was in possession, on the strength of some rent receipts from raiyats. It was held that the Magistrate bad no jurisdiction under Section 145. It is said by one Judge that he should have contented himself with declaring that the orders of the civil Court should be maintained : by the other Judge that he should have directed Dulin Saheba to assert her rights as she might be advised. Under the Code as it then stood the Court held' that it could only interfere on a point of jurisdiction, and from the judgment of Prinsep, J., it would appear that the jurisdiction was ousted by reason that the decree was 'within a time not remote.' The same circumstance is stressed in Kuhja Behari's case [1901] 26 Cal. 208 where the decree was still under appeal and the Magistrate is said to have 'ignored' the decree. These cases show an inclination to resile from the broad dicta of previous cases as to the effect of a decree. They also show an increasing haziness as to whether it is the final order of the Magistrate which is ultra vires if he does not 'maintain the decree' or whether the whole proceedings are without jurisdiction in view of the decree.

31. In S. Gordon Sims v. Johurilal [1901] 5 C.W.N. 563 both parties produced civil Court decrees and the Magistrate held that one party had decrees which applied to the land in question and made an order in his favour under Section 145. This was affirmed by the High Court as being in accordance with the case of Doulat Koer [1899] 26 Cal. 625. The decree in question was not inter partes. The Court stated:

We are aware of no ruling which prescribes; that the Magistrate is to maintain a party in possession in accordance with the decree of the, civil Court only when the opposite party is a party to that proceeding.

32. Another case in which appeal was made to the principle that the Magistrate must

maintain the possession given by the Civil Court though the parties are not the same

is Kulada Kinkar Boy v. Danesh Mir [1906] 33 Cal. 33. In that case the language used in the cases of Gobind Chunder [1881] 6 Cal. 835, Doulat Koer [1899] 26 Cal. 625, and Gordon Sims v. Johury Lal [1901] 5 C.W.N. 563 was shown to be too broad and, it was laid down that while possession given previously under a decree may be presumptive evidence it has to be taken along with other circumstances and other evidence as to the fact of possession at a later date.

33. It Atul Hazra's case [1916] 20 C.W.N. 796 the Magistrate1 found that five or six months after delivery of possession under a decree inter partes the party against whom the civil Court had decided was back in possession. The Court held that the party ought not to be allowed to assert this and seem to have thought that proceedings under Section 145 were improper. The same principle that a party ought not under Section 145 to be allowed to assert that he is in possession even when the fact is so, if his possession is not lawful possession but the possession of a trespasser and a wrongdoer, was affirmed by Graham, J., in Syed Ambar Ali v. Teran Ali : AIR1928Cal344 . In my opinion this line of reasoning must be discarded for all purposes in applying Section 145 for the reason that it is plainly contrary to the express provisions of the section and inconsistent, as I have endeavoured to show, with the principles applicable to the subject. In order to maintain the peace and take effective action the Magistrate has to deal with the facts: estoppels between the disputants are only in place on a question of right as between one party and another. In this jurisdiction the interests of the public are supreme. Suum cuigue tribuendo is not the function of the Magistrate: that object must be achieved at a later stage and by more appropriate means.

34. As regards the second contention of the applicant that if the Magistrate had jurisdiction to act under Section 145 at all he was bound in law to find possession according to the civil Court's decree and therefore to find that fifteen months after the delivery of possession given as against Mantajaddin that the applicant was in possession, the fallacy of this contention is in my opinion sufficiently exposed by what I have already said. If a case is within Section 145 the Magistrate acting under the section must deal with it as the section prescribes. It is clear on the facts of the present ease that on 9th May 1927 the applicant was not in possession.

35. It remains only to deal formally with the three questions stated in the order of Reference. If the word 'personal' be deleted-it is a word whose meaning in this connexion is ambiguous-I think that the first question as well as the second should be answered in the affirmative. As regards the third question I am in general agreement with the judgment of Cuming, J., in Syed Ambar Ali v. Porlal Ali : AIR1928Cal344 , but I do not think it necessary or advisable to answer this question as framed. The application in revision should be dismissed.

Suhrawardy, J.

36. As I am a party to some of the decisions referred to in this connexion I should like to say a few words in defence of the position I am advised to take after giving the point raised my anxious and earnest consideration. I have had the advantage of reading the judgments of my Lord the Chief Justice and my learned brother Mukherji, J., which have lucidly presented both sides of the picture. They have given me a much desired opportunity of looking at the question from all points of view and1 weighing the arguments for and against. I, however, feel great diffidence in differing from a line of decisions from 1861 downwards pronounced by very high authorities, specially in view of the fact that the legislature has not yet thought fit to intervene to clear up the matter. I do not propose to discuss the cases cm the point as they have been so thoroughly examined by the learned Chief Justice and Mukerji, J. But as notes of dissent have now been definitely struck, I should like to approach the question untrammelled by precedents and treat it as a, case of first impression. I therefore content myself with recording my opinion on the various points raised.

37. The term 'dispute' in Section 145(1) has not been defined anywhere in the Code but to my mind it has been clearly and sufficiently explained in the section itself as meaning a dispute which is likely to cause breach of the peace. To add any other explanation to the term will not be, in my opinion construing the Act but legislating. The requisites to attract the jurisdiction of the Magistrate under Section 145, Criminal P.C., are (a) dispute, (b) which is likely to cause a breach of the peace, (c) which concerns land or water etc. To say that the dispute must be bona fide or reasonable is to restrict the jurisdiction of the Magistrate given him by the statute. 'Bona fide' is an expression which is extremely elastic and may depend upon the ethical, moral or equitable notion of the speaker. If two persons are fighting over possession of a piece of waste land or a newly formed chur to which both of them know they have no title, can the dispute be called bona fide or reasonable? An ordinary man with normal moral ideas will call it otherwise. I do not see any reason why it should be supposed to be bona fide or reasonable in law and I take it that those who maintain that 'dispute' in Section 145 must be bona fide or reasonable will hesitate to oust the jurisdiction of the Magistrate under that section in such a also.

38. Now it cannot be doubled that a decree of the civil Court must have its due force and it is not desirable that one arm of the law should fight the other. But this is a concern of the legislature and not of Courts, however just and expedient it may seem to avoid such a conflict. It is argued that once the difference between the parties on the question of title to the land has bean settle by a civil Court there is no further dispute that remains to be decided under Clause 6 of Section 145 and therefore the Magistrate cannot regard such a dispute as one within the section. The logical conclusion from this view is that if a person obtains a decree for recovery of possession in the civil Court he need only go to the land with some lathials and create a disturbance there and the Magistrate is bound to put in possession, thus acting as the Court of execution of the civil Court decree This apparently impossible position was conceded by the learned advocate who appeared in support of the rule. But my learned brother Mukherji, J., does not go so far and maintains that in order to oust the jurisdiction of the Magistrate the decree must have been executed. I do not see, in principle, any difference between an executed and unexecuted decree so far as the meaning of 'dispute' is concerned. Clause 21, Rs. 35, 95 and 98 give sufficient facilities to a decree-holder or auction-purchaser to obtain actual possession. If he cannot retain such possession no one but himself is to blame for it. If the decree-holder is a peaceful citizen and is dispossessed his only course is to bring a fresh suit or if he is within time, to avail himself of Section 9, Specific Relief Act. If he is a turbulent person and by recourse to criminal force threatens breach of the peace, the Magistrate, according to the petitioners' contention, is bound in law to put him in possession. This position seems to me unreasonable : it is setting a premium on lawlessness. Take for example the facts of the present case. The judgment-debtors are allowed to remain in unobstructed and apparently peaceful possession for more than a year. The decree-holder on ode day after such a long time takes it into his head to collect men and attempts to make a forcible entry. From the point of view of criminal administration of justice the decree-holder is the party against whom punitive or preventive measures should be taken as the apprehension of the breach of the peace comes from his side. Does it stand to reason that the Magistrate should tell the judgment-debtor:

You must lie low and give up your peaceful possession because the other side is armed with a civil Court decree backed up by hirelings ready to use criminal force

39. In my opinion the word 'dispute' is used in its ordinary sense meaning a disagreement, struggle, scramble or quarrel for possession of land, etc., which is likely to cause a breach of the peace, without reference to the respective claims of the disputants.

40. It is possible that the legislature has not entirely overlooked oases like the present. If the decree-holder or auction-purchaser obtains actual possession through the civil Court or such possession as in the eye of law is equivalent to actual possession and is subsequently dispossessed by the judgment-debtor he can come; to the Magistrate within two months under Clause (4) and the Magistrate will reinstate him in possession. If he does not do so and sleeps over his right his claim for reinstatement by the criminal Court, so to speak, becomes barred by limitation. For the foregoing reasons I will answer the questions referred to the Full Bench in the way the learned Chief Justice proposes to do.

B.B. Ghose, J.

41. The facts on which the reference was made are as follows : The first party who is the petitioner in this Court obtained a mortgage decree against the second party and in execution of his decree purchased the property in question. The judgment-debtors, second party, were in possession of the property and the petitioner as auction-purchaser was put into possession under Order 21, Rule 95, Civil P.C., on 8th February 1926. The finding is that although the petitioner was entitled to obtain possession by evicting the judgment-debtors that was not done and he obtained what is called 'symbolical possession.' It cannot, however, be questioned that such 'symbolical possession' as against a judgment debtor amounts to actual possession in law and it should be taken as such. In spite of such delivery of possession the judgment-debtors, opposite party, continued in possession of the lands. In May 1927 a dispute arose regarding the possession of the land and proceedings were taken by the Magistrate on 9th May 1927 under Section 115, Criminal P.C. The Magistrate having found that the opposite parties were in actual possession made an order under Sub-section (6) in their favour. The petitioner obtained the rule against that order which has occasioned this reference to the Pull Bench. It should, how-, ever, be stated that it appears that the execution proceedings against one of the second party, Afazaddin, were ineffectual and so possession cannot be 'Said to have been delivered as against him by the civil Court.

42. I shall now deal with the arguments advanced on behalf of the petitioner. It is argued that where the civil Court has already decided the question of title and possession between the parties in controversy there is no jurisdiction in the Magistrate to take proceedings under Section 145, Criminal P.C. It is urged that the dispute referred to in Sub-section (1) means bona fide dispute. Reference is made to Sub-section (6) and it is argued that the Magistrate's order under Section 145, is to remain in force only until the decision of the civil Court, but where a civil Court has already decided the right of a party to possession of the property and has actually put him into possession it should be held that the Magistrate has no jurisdiction to take proceedings under this section. It is further argued that to hold otherwise would be to place a person in the position of the petitioner under great difficulty as he may be dispossessed by a lawless and turbulent antagonist who has been worsted in the litigation by a decree passed against him in the civil Court and against whom possession has been delivered, if that person is retained in possession by the Magistrate. The result may be that the rightful owner would be compelled to go again and again to the civil Court and continue the process without ever getting possession of the land.

43. It is conceded that a construction of the section according to the ordinary meaning of the words used would go against the contention of the petitioner, but it is urged that owing to the obvious inconvenience of construing, the section in that manner, the construction contended for should be accepted. Further it is argued that the construction contended for has been accepted in numerous decisions of this Court and those-decision should not be departed from.

44. In order to hold that the plain natural meaning of the words in Section 145, Criminal P.C., should not be accepted it is necessary to consider the object aimed at by orders under its provisions. It has been, said by the Privy Council with reference to similar orders in the case of Dinomoni v. Brojomohini [1902] 29 Cal. 187:

These orders are merely police orders made to prevent breaches of the peace. They decide no question of litle; but under Section 145, Criminal P.C., 1882 (relating to disputes as to immovable property) the Magistrate is, if possible to decide which of the parties is in possession of the land in dispute; and if he decides that one of the disputants is in possession, the Magistrate is to make an order declaring such party to be entitled to retain possession until evicted in due course of law, and forbidding all disturbance of such possession, until such eviction. The Criminal Procedure Acts in force in 1866 and 1876 were to the same effect.

45. If the Magistrate is required to decide whether a dispute is bona fide or not it would be to require him to go into the question of the merits or the claims of a party to a right to possess the subject of dispute, which he is forbidden to do by Sub-section (4). For unless he goes into the question of the rights of the parties, how is he to decide whether the dispute is bona fide? Bona fides does not merely depend upon the fact that one party has obtained a decree in a civil Court. A person may have as clear a right by reason of succession as on the basis of a decree. But it is not contended that the Magistrate should consider any such right. The argument therefore that the word 'dispute' should be read as 'bona fide dispute' cannot in my judgment be accepted. Nor does the argument that the Magistrate has no jurisdiction to take action under this section where actual possession had been delivered to one of the parties by the civil Court appear to be sound. Where there is a dispute likely to cause a breach of the peace as contemplated under Sub-section (1) what is the Magistate to do? He cannot sit idle and allow the contending parties to settle their dispute by a free fight. It is argued that he should proceed under Section 107. No doubt he can do so as provided in Sub-section (10), Section 145, and I think the Magistrate would take action under that section if he finds that the possession given by the civil Court is being sought to be disturbed by the unsuccessful litigant in the civil Court. But can it be said that when such a person is found to be in peaceful possession at the time of the order under Section 135(1), notwithstanding that the other party was put into possession by the civil Court, that the person in peaceful possession should be proceeded against under Section 107 because his possession is without right? He is not going to commit a breach of the peace, but it is the other person who desires to take the law into his own hands.

46. It is, however, argued that he is doing a wrongful act, a continuing tortious act, by remaining in wrongful possession and so brings himself within the provisions of Section 107. I do not think that that section refers to any such act as retaining wrongful possession, as it refers to a person 'likely to do any wrongful act.' But even assuming that such person is ordered to execute a bond to keep the peace the rightful owner cannot be put into possession unless fee himself intends to get it by force. It has not been argued that the person in possession being bound down the other would be entitled to remove him from possession by force. But the argument leads to that result. To hold that the Magistrate may by an order under Section 107 enable the rightful owner to take possession without recourse to the Court, would be to delegate the function of the civil Court to the Magistrate. Nor do I think that the Magistrate can take action in such a case as this under Section 144, as was suggested, and remove the person in possession. I do not also think that it would be right to hold that the word 'dispute' in Section 145 means a dispute not decided by the civil Court. In my opinion, when two parties are quarrelling over possession, which is likely to endanger public peace there is a dispute under the section. The plain meaning of the words in the section should be adopted and there is no reason why there should be a strained and fictitious meaning given to the words where the maintenance of peace is concerned.

47. Then with regard to the question of expediency I think that the Magistrate has ample powers to maintain the person put into possession by the civil Court in such possession if he takes prompt action. It seems to me that the distinction between an act of trespass and wrongful possession of a trespasser has not always been borne in mind. In the latter case if the person who was put into possession by the civil Court allows the judgment-debtor to remain in possession for more than 12 years he loses his right to the property altogether. He has 12 years to bring his suit for recovery of possession in the civil Court : see Hari Mohan v. Baburali [1897] 24 Cal. 715, Bhulu Beg v. Jatindra A.I.R. 1923 Cal. 138. It is conceded that after the lapse of 12 years from the delivery of possession the Magistrate may take action under this section as the right of the petitioner would then be lost. But it is argued that the Magistrate has no jurisdiction to take action under Section 145 if the dispute arises within 12 years of the delivery of possession. This brings us back again to the question of the Magistrate's exercising the functions of a civil Court. The simple way would have been to extend the period under Prov. 1, Sub-section (4) to 12 years if that was the intention of the legislature. This argument also does not seem to me logical, as the exercise of the power of the Magistrate is said to depend on the fact whether the petitioner has a subsisting right.

48. No doubt where the question of pas-session is doubtful on the evidence or where the land is not effectually in the possession of either party or the possession is by collection of rents and in cases of like nature the Magistrate would be well advised to find possession with the person who was put into possession by the civil Court as against the judgment-debtor. The Magistrate also may not take any action under Section 145 if the person who has been put into possession is sought to be proceeded against by the defeated party who seeks to raise a dispute for disturbing the possession of the former and in that case take action under Section 107. Nor should the Magistrate take action if it appears that the provisions of Section 145 are sought to be abused. The argument that it is the duty of the Magistrate to maintain the possession awarded by the civil Court presupposes that such person is in possession at the time in question. But where the judgment-debtor is found to be actually in possession, notwithstanding the possession delivered by the civil Court some time previously and the decree-holder or auction purchaser did not take appropriate steps in proper time against the judgment-debtor when his possession was disturbed but allowed the judgment-debtor to retain possession and later on seeks to take possession without recourse to law, which act is likely to cause a breach of the peace, he cannot complain if the Magistrate makes an order in favour of the judgment-debtor who is found to be in possession. In my opinion the Magistrate has jurisdiction to take action under Section 145 when the dispute is likely to cause breach of the peace in such a case. I do not propose to discuss the cases cited during the course of the argument in detail. It seems to me if the cases are analyzed it would appear that the decisions were based upon the special facts of each case although the observations in some of the decisions taken unconnected with the facts support the contention of the petitioner about the Magistrate's power. In the case of Rai Mohan v. Wise [1871] 16 W.R. Cr. 24 the civil Court gave possession to the first party after settling a disputed boundary. The Magistrate fixed another 'boundary line. The decision was that the Magistrate should maintain the possession of the first party. It should be noticed that the Magistrate was unable to determine which party was in actual possession. In Ranigunge Coal Association v. Hem Lall [1879] 24 W.R. Cr. 17 the land was forest land and the possession given by the civil Court was sought to be nullified by the defeated party by taking some sort of possession which was no real possession. The case of In re Bholanath Ghose v. Mothoor Mandal [1880] 7 C.L.R. 516, is instructive and the circumstances of that case are now provided for under the proviso to Sub-section (4) of Section 145. There the landlord was put into actual possession in execution of a decree against the tenant. The tenant attempted to take forcible possession of the land. The landlord complained; the Magistrate did nothing. The tenant then obtained possession forcibly. The Magistrate acting under the old Section 530, Criminal P.C., awarded possession to the tenant. This order was set aside. In the view I take I-do not think it necessary to examine the other eases. It seems to me that where the finding of the Magistrate did not appear to be justified on the facts the learned Judges interfering with the decision made use of expressions regarding the jurisdiction of the Magistrate which cannot be accepted as of general application having regard to the provisions of the section.

49. To conclude: when a civil Court has delivered possession to a person the Magistrate should maintain that possession as against a party to the suit if the unsuccessful party seeks to disturb such possession, as in fact the possession of every person should be protected against disturbance. If the unsuccessful party takes forcible possession the Magistrate has the power to put the rightful owner into possession under Prov. 1, Sub-section (4), Section 145. If, however, the successful party in the civil Court allows the unsuccesful party to get into and retain possession for a sufficiently long period of time, precluding the application of the above proviso, it cannot be said that the Magistrate has no power to take proceedings under Section 145. In such a case he may make a declaration in favour of the unsuccessful party in the civil suit if he clearly finds possession in his favour.

50. As to the merits of this case there is not much to be said. One of the second party does not seem to be affected by the delivery of possession by the civil Court as the execution proceedings against him were ineffectual. No argument can therefore be put forward against the order retaining him in possession. Again, the case made by the petitioner before the lower Court was that he was actually in possession of all the lands except the homestead, which has been found to be untrue. Having fought out his case on the basis that he was in possession and lost, he cannot be allowed to come up here in revision and urge that the Magistrate ought not to have taken action under Section 145. I agree with my Lord the Chief Justice in the answers proposed by him to the questions referred to. I also agree that the rules should be discharged.

Mukherji, J.

51. In this reference we have, in the first place, to answer the questions that have been formulated for the decision of the Pull Beach and, nextly, to decide the case itself.

52. At the outset I must observe that I find it somewhat difficult to answer the questions in the form in which they have been put, because they are not capable of one set of answers only, but the answers to them would depend upon the precise circumstance of each particular case. This difficulty necessitates a consideration, in the first instance, of the points which are involved in a case of the kind contemplated by the reference, before an attempt is made to deal with the questions, themselves. The reference proceeds upon a set of facts as found. Whether they are really the facts of the particular case before us need not, at the present moment be considered; it will be convenient to treat those facts as constituting a hypothetical case. In the words of the order of reference the facts are as follows:

The first party are auction-purchasers and the second party are judgment-debtors. It would seem to be the first party's case and this seems to be one of the facts found that possession was delivered to the first party by the civil Court. As far as can be seen this possession was delivered by the planting of a bamboo. But it is also found as a fact that in spite of the delivery of possession the judgment-debtors were never dispossessed but remained on in possession. The Magistrate found that actual possion was with the judgment-debtors.

53. This statement of facts requires to be supplemented by stating a few more facts about which there is no controversy: The subject-matter of the case is a homestead and several plots of arable land. Possession was delivered under Order 21, Rule 95, Civil P.C., which is the only provision that cm apply to a case in which the property is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequent to the attachment of such property, and the property not having been in the occupation of a tenant or other person entitled to occupy the same in which case Order 21, Rule 96, Civil P.C., would have applied. As already stated, possession was delivered by the planting of a bamboo but the judgment-debtors who were in occupation of the homestead were not removed. As regards the plots of arable land, this procedure amounted in law and in fact to delivery of khas or actual possession; while as regards the homestead, since the judgment-debtors were not bodily removed, though in law the auction-purchasers got khas or actual possession as opposed to symbolical possession contemplated by Order 31, Rule 96, Civil P.C., in point of fact the judgment-debtors continue in occupation. Delivery of possession took place on 8th February, 1926. The proceedings under Section 145, Criminal P.C., that have given rise to the rule were drawn up on 9th May 1927. The referring order states that in: spite of this delivery of possession the judgment-debtors continue in possession and that thereupon proceedings under Section 145, Criminal P.C., were instituted between the auction-purchasers as the-first party and the judgment-debtors as the second party and that the Magistrate declared the latter as entitled to possession as provided for in Clause (6) of that section.

54. On the facts recited above upon the arguments that have been addressed toils two questions arise for consideration: 1st, Had the Magistrate jurisdiction to institute the proceedings under Section 145, Criminal P.C., or, in other words, to take action under Clause (1) of that section? and 2nd, Had he jurisdiction to make the order that he did under Clause (6) thereof; I use the word 'jurisdiction' in formulating these questions, as the word has been used in the course of the arguments and also because it finds place in some of the decisions to which our attention has been called. In using this word I wish it to be understood in the sense of 'the authority by which judicial officers take cognizance of and decide cases' and to restrict its meaning further with reference to the nature of the subject matter over which authority is to be exercised as distinguished from the territorial or pecuniary limits of that authority. As pointed out in the Pull Bench decision of this Court in the case of Hridoy Nath Roy v. Ram Chandra Barna Sarma [1920] 24 C.W.N. 723, an examination of the cases in the books discloses numerous attempts to define the term 'jurisdiction' and that although there is a clear distinction between jurisdiction and the exercise of it,

the extent to which the conditions essential for creating and raising the jurisdiction of a Court or the restraint attaching to the mode of exercise of that jurisdiction that should be included in the conception of jurisdiction itself is sometimes a question of great nicety.

55. If there is authority to entertain and decide the cause, jurisdiction would not depend either upon the regularity of the exercise of the authority or upon the correctness of the decision pronounced, for to quote the celebrated dictum of Lord Hobhouse in Malkarjun v. Narahari [1900] 25 Bom. 337, 'a Court has jurisdiction to decide wrongly as well as rightly.' It is from the point of view of this restricted, and I may also say true, significance of the word that I propose to consider the two questions aforesaid. Looked at from this point of view the matter is purely one of construction.

56. Legislation regarding disputes concerning land likely to cause a breach of the peace and for the adjustment of those disputes and by such adjustment preventing them from culminating in a breach of the peace began with Reg. 49 of 1793 and continued practically on the same lines down to the current Act, viz., Act 5 of 1898. The tribunal by which the adjustment was to be made was changed by Reg. 15 of 1824, but the method as laid down by Reg. 49 of 1793 has continued without a break in all subsequent legislations : see Reg. 14 of 1793, Reg. 32 of 1803, Reg. 6 of 1813, Reg. 15 of 1824, Reg. 2 of 1829, Act 4 of 1840, Act 25 of 1861, and the more recent enactments of the Code of Criminal Procedure. That method was to bring before the Court the disputing parties, to ascertain, if possible, which of them was in actual possession irrespective of any consideration as to which of them was entitled to possession, and to say to all the other disputants that the person found in actual possession was to be left in such possession and that such possession was not to be disturbed until that person was evicted in due course of law. The prescribed method was to be resorted to, if the dispute related to land and was of such a character that there was a likelihood of a breach of the peace resulting therefrom. The object to be attained was the prevention of the dispute from culminating in a breach of the peace. The object and the method have remained the same all through. Apart from any cases and upon the plain words of the statute the conclusion that I come to, I can express in no better words than in those of Hill, J., in the Pull Bench case of Krishna Kamini v. Abdul Jabbar [1903] 30 Cal. 155, whose judgment was concurred in by Prinsep, Ag. C.J., and Brett and Henderson, JJ., and, so far as this matter was concerned, was not dissented from by Banerjee, J., who differed in that case on other points from the rest of his colleagues. He said:

Then as to the question of jurisdiction : On being satisfied of the existence of a dispute likely to cause a breach of the peace concerning land, etc., within his local jurisdiction, the duty, which is imperative, is cast upon the Magistrate of taking action under Section 145. The two essentials are that there should be a dispute likely to cause a breach of the peace, and that the dispute concerns land, etc The section does not primarily can template cases in which there have already been acts of violence. All the disputants may be persons of peaceable disposition, but if the dispute is in its nature of such a kind that it is likely, having regard to the known conditions of society, to lead to a breach of the peace, that is enough to warrant the Magistrate's intervention and to give him jurisdiction over the subject of dispute. Upon the existence of these conditions and these conditions only, is the jurisdiction of the Magistrate in my opinion dependent. The object, I think, is to take the subject of dispute out of the hands of the disputants, and to constitute one of them, whose possession the law will protect, its custodian until the other has established his right (if any) to possession in a civil Court;

or, to be more correct, until the other has been evicted therefrom in due course of law if the order is one under Section 145, Clause (6), or until a competent Court has determined the rights of the parties thereto or the persons entitled to possession thereof, if the order is under Section 146. As regards the decision : for it to be in excess of the Magistrate's jurisdiction, it must be in violation of some express direction of the law, e.g., where the law says that the decision shall be one way or that it shall not be that way and he has decided otherwise. These are the fundamental principles that have to be borne in mind in an attempt to answer the two questions that I have set forth above, read with reference to the case as recited in the reference. That there was an apprehension of a breach of the peace is admitted on all hands. That there is no provision of the law which forbids an order under Clause (6), Section 145, being made against the auction-purchaser who has been put in possession in execution of a decree is also not challenged. The law only says, except as to a case of dispossession coming under the first proviso to Clause (4) that

if the Magistrate decides that one of the parties was in such (meaning, actual) possession of the subject he shall issue an order, etc.

57. It is clear, therefore, that to consider the question of jurisdiction, as regards the first question the true meaning of the word 'dispute' and as regards the second question that of the expressive words 'possession' and 'actual possession' will have to be investigated and it will have to be seen whether in the circumstances of the case recited above and in the eye of the law there was a 'dispute' between the parties, or the second party were in 'actual possession.' It will be convenient at this stage to deal with the relevant cases that are to be found in the books.

58. In the case of Shama Soondery Debya v. Jardine Skinner & Co. [1866] 6 W.R. Cr. 10 the petitioner Rani Shama Soondery had been put in possession of a share in certain lands under a decree of a civil Court which had been confirmed by the High Court, the amin having given her khas possession of that share. The opposite party, Messrs. Jardine Skinner & Co., who were parties to the suit, raised a dispute alleging that they were in

actual and tangible possession of certain lands which had not been actually defined or interfered with by the amin.

59. They set up a right of occupancy as tenants in those lands. They contended that the word 'khas' as used in giving possession was 'an error.' Their objection to the delivery of possession was pending in appeal. The Magistrate finding that there was an apprehension of a breach of the peace made an order in favour of the opposite party. Seton-Karr and Markby, JJ., said:

We are clear that the order of the Magistrate is illegal and cannot be permitted to stand.... We hold that it was not competent to the Magistrate to interfere under Section 318, Criminal P.C., with the execution of a decree of the civil Court, affirmed as it has been by the highest Court of the country, and to say that the word 'khas' as used in giving possession must be an error, or to lay it down that the petitioner had no right to come on the lands 'except as collector of rent.' Moreover, we are informed that the case giving the Rani possession is pending in appeal in the miscellaneous department, and if there had been any doubt as to the exact meaning, intent and object of the decree the matter was one which ought to be adjudicated on in that department and not in the criminal Court. In fact, looking to the possession of the parties and to the state of the dispute the Magistrate, if called in to interfere under Ch. 22, Criminal P.C., because he was apprehensive of a breach of the peace, should have kept the Rani in possession under Section 319, as the party who had been actually placed in possession by a decree of the civil Court. We quash the proceedings of the Magistrate under Rule 318 and declare them null and void.

60. The word 'jurisdiction' does not appear in the decision, but the competency - which is more or less the same thing - of the Magistrate to take action under Section 318, was held against and the proceedings instituted and decided under that section were quashed and declared null and void; but it was also held that if by reason of the apprehension of a breach of the peace the Magistrate was called upon to interfere at all under Ch. 22, he should have kept the Rani in possession under Section 319. The decision was not a clear authority on the question of jurisdiction. The learned Judges further observed that in passing the aforesaid order they were acting in strict accordance with a previous decision of the High Court (Loch & L.S. Jackson, JJ.,) dated 27th July 1864, in the case of Kali Soondery Chowdhurani.

61. In the case of Rai Mohan Roy v. J.P. Wise [1871] 16 W.R. Cr. 24 the facts were as follows : There was in 1848 a proceeding under Act 4 of 1840 which was decided in favour of the predecessors of Wise. The Roys brought a suit to set aside the possessory order passed by the criminal authorities, obtained a decree and got possession through the Court in execution of the decree. There was a dispute on which proceedings under Section 318, Criminal P.C., were started. The Roys contended before the Magistrate that Wise was attempting to take possession of a portion of the land decreed to them by the civil Court and prayed that the Magistrate would be pleased to maintain them in the possession given to them in execution. Wise on the other hand urged that the land in dispute was outside the decree and belonged to his estate and that he had all along been and still was in possession of it. The Magistrate went to the locale and after enquiry decided that the Roys should be maintained in possession of the land on the east of a line drawn by him and that Wise should remain in possession of the land, to the west of that line. Onoocool Chunder Mookerjee, J., said:

The Magistrate is not competent to interfere under Section 318 with the execution of a decree of the civil Court. He is bound to maintain the party in possession who has obtained a decree from the highest Court of the country and recovered possession in execution of that decree.... The point, therefore, for his decision was, in the first instance, whether the decree covers the land which is the subject of the dispute in the present case. If he finds that point in favour of the Roys he should, under Section 319, maintain them in possession, but if he finds that the lands are not the land decreed in 1865 he should try to find out who is in de facto possession.

62. H. Jackson, J., observed:

I think that it is the duty of the Magistrate in proceedings taken under Section 318 when it appears that a civil Court decree has been passed regarding the whole or any portion of the disputed land, to maintain that decree. The Magistrate's powers under Section 318 relate to land regarding which there is a dispute which has not been decided by a civil Court, and his order for possession remains in force only until such decree is passed. When such decree has been given the Magistrate has no power again to institute a Section 318 proceedings regarding the land covered by it. The dispute regarding the land has been finally determined and it is then the Magistrate's duty to treat the decree-holder in the civil Court as the owner of that land and give him every protection and enjoyment of it. If after making every enquiry, the Magistrate cannot ascertain where the boundary line is, he must act under Section 319. There would never be an end to litigation if the Magistrate will not keep in force the decision of the civil Court regarding landd.

63. Reading the judgment of Mookerjee, J., it would appear that all that he meant to lay down was that it was not competent for a criminal Court to upset by proceedings taken under Section 318, Criminal P.C., the result of delivery of possession in execution of a decree passed by a civil Court and that the criminal Court is bound to maintain in possession a party who has obtained such possession in execution of decree. E. Jackson, J., appears to have gone very much further. His judgment, in the first place, indicates that if in such a ease proceedings are taken under Section 318, the duty of the Magistrate is to try and find out what the civil Court has done and, if he succeeds in doing so, to maintain the same, and if he is unable to find that out then to act under Section 319. To this extent, the view of E. Jackson, J., was very similar to, if not quite in agreement with, that of Mookerjee, J., quoted above. E. Jackson, J., went a good deal further because his judgment indicates that in such a case namely, when a, dispute has been determined by the civil Court - the criminal Court should regard the dispute at an end. He, however, did not say that for that reason or on that account the Magistrate has no jurisdiction or is not competent to take proceedings under Section 318, while on the other hand, he pointed out how the Magistrate should proceed and what decision he should make and under what circumstances in those proceedings. Nextly, his judgment speaks of the decree of the civil Court as having finally determined the dispute; but it may be that in reality he was thinking of the dispute as to possession having been determined by the delivery of possession in execution, because towards the end of his judgment he said:

That line (namely, the line drawn by the Magistrate) has not been drawn as being the boundary in the civil Court decree and execution proceedings.

64. In Raneegunj Goal Association Ltd. v. Hem Lall Ghatwal [1879] 24 W.R. Cr. 17, the Ghatwal was unsuccessful in a civil suit which he had instituted against the Coal Company and thereafter obtained an order from and was put in possession by the Magistrate under Section 530 of Act 10, 1872. It was thus said by Glover and Mitter, JJ.:

When a civil Court decree is once passed the right as between the litigants is decided; and there is no more place for a summary order which proceeds not upon title, but on mere possession. It having been once declared by a competent Court that the parties now represented by the Ranigunge Coal Company were the owners of the disputed land no further proceedings could be taken. If the law were otherwise, it would be worth no man's while to go to the trouble and expense of proving title in a regular suit, for the effect of a decree might be to a great extent nullified by parties contriving to get into some kind of possession (which they could easily do in forest lands like these now in question), and then demanding to be retained in possession till the second suit was brought and decided.... We therefore quash the Assistant Magistrate's order passed under Section 530. Criminal P.C., and direct him to abstain from interference with what he admits to be the Coal Company's property. If he is apprehensive of a breach of the peace between the parties he can proceed in the usual way under Chap. 37 of the Code.

65. This judgment, it will be observed, says that in the circumstances no further proceedings could be taken under Section 530. It is noteworthy also that the dispute, that there was between the parties, was of a nature that could be determined by the decree itself by which the Ghatwal's suit was dismissed - presumably a suit for possession on declaration of title - and it was not necessary for any execution proceedings to settle the dispute any further.

66. In Nobin Chandra Koondoo v. Jogandra Nath Bhattacharjya [1876] 25 W.R. Cr. 18 the auction-purchaser had taken possession in execution of a decree against a third party. Glover and Mitter, JJ., said thus:

If it had appeared that in a final decree binding between the parties before him the question of title had been conclusively determined he would have been justified in refusing to proceed under Section 530.... The proceeding, namely, of the peon in execution against a third party does not take away the power of the Deputy Magistrate to enquire into the disputed question of possession between parties before him under Section 530, Act 10, 1672.

67. The decision seems to be an authority not on the question of jurisdiction but rather on the question of propriety, the word used being 'would have been justified in refusing to proceed.' The case was not one of delivery of possession inter partes, but the decree-holder had been put in possession against a third party not a party to the decree.

68. The case of Sheikh Mungloo v. Durga Narain Nag [1879] 25 W.R. Cr. 74, in which the contest as to possession was between the auction-purchaser, the judgment-debtor and the auction-purchaser's gomastha on the one hand, and certain persons who, on the other hand, claimed to be ijaradars and so entitled as against the judgment-debtor to collect the rents from the tenants in occupation, Garth, C.J., said:

Now it is quite true that as against a party (namely, the ijaradar) who is proved to be in such actual possession of the rents from the ryots the fact of such symbolical possession would not be entitled to much weight, but it is impossible to say that it is not some legal evidence of possession which the Magistrate was bound to take into consideration.

69. Kemp, J., expressed the view that such symbolical possession would be no evidence against the ijaradar upon which the Magistrate could proceed in enquiring and deciding which party is in actual possession of the subject of dispute. The case has very little relevancy for our present purposes.

70. In the matter of Ram Soondaree Debee [1877] 1 C.L.R. 86 was a very important case decided by White and Mitter, JJ., In that case, the applicant was, so far back as 1866, by an order of the Magistrate, pub in possession of the land, which was the subject-matter of the proceedings under consideration, as against one B.B. then instituted a suit for establishment of title in which he succeeded as regards part of the land and failed as regards the remainder. He, however, did not have execution of the decree. Then there was, nearly ten years later than the Magistrate's order, a fresh proceedings under Section 530, Act 10,1872 and an order of attachment was made under Section 531 of the Act. White, J., attached no importance to the decree inter partes, obviously for the reason that it had not been executed, but as regards the previous order of the Magistrate passed ten years back he observed:

Taking it that possession of the land was in 1866 awarded to the applicant, it is clear that she is entitled to retain possession of it until ousted by law and the only fact that could give the Magistrate jurisdiction to entertain an application under Section 530 would be if it were shown that the applicant had lost possession of the land and a new dispute had arisen as to the fact of actual possession.

71. The case may be treated as an authority for the proposition that a decree for possession, even if inter partes if not executed by delivery of possession, does not conclude the question of actual possession that a Magistrate has to determine, and also for the proposition that a previous magisterial order of possession would deprive the criminal Court of jurisdiction to take similar proceedings even ten years after unless in the meantime two conditions have come into existence, viz., the party put or declared in possession by the previous order had lost his possession and a new dispute has arisen.

72. The view expressed by E. Jackson, J., in Rani Mohan Roy v. Wise [1871] 16 W.R. Cr. 24 was entirely concurred in by Morris and Prinsep, JJ., in In the matter of Chutraput Singh [1879] 5 C.L.R. 200, in which case the plea of a judgment-debtor questioning the fact of delivery of possession in respect of some property as also the fact of the property being included in the decree, was overruled, the learned Judges observing as follows:

The sole object of a Magistrate in taking action under Section 530 is to prevent a breach of the peace between rival claimants to a particular property. For that purpose he satisfied himself as to the party actually in possession at the time that the proceedings were instituted, and declares such party entitled to retain possession until ousted in due course of law. In other wards he declares one party entitled to retain possession until the civil Court declares which party has the better right, and puts such party in possession. Here the Nazir, acting under the authority of the civil Court had in due course of law, put Chutraput Singh into possession of the land in dispute, and yet in the view taken by the Magistrate he cannot be allowed to retain the possession whioh the Nazir gave him, until a fresh order has emanated from the civil Court and another Nazir has put him in possession. Such a course of proceeding seams to us manifestly improper, as it defeats the objects for which Section 530 was framed.

73. In this case a purchaser claimed that a certain haut which appertained to a mouzah in respect of which he had obtained a decree on a mortgage and that he had been put in possession of the haut as well in execution of the said decree. The judgment-debtor after the delivery of possession had refused to give up actual possession of the haut maintaining that it was debutber property of which he was the Shebait and had remained in such possession. Proceedings under Section 530, Act 10, 1872 were started. The Nazir had delivered possession by planting a bamboo, though not in the haut itself and by proclaiming by beat of drum mentioning the haut in his proclamation. The Magistrate held that actual possession of the haut had remained with the judgment-debtor and made an order in his favour. In the result the learned Judges declared the auction-purchaser entitled to retain the possession that he purported to have obtained through the civil Court. The decision of the High Court, broadly stated, is an authority for the proposition that whatever may be the nature of the delivery of possession, if the delivery purports to be of actual possession against a judgment-debtor, actual possession retained by the latter against such delivery does not count in proceedings under Section 145, Criminal P.C.

74. Bhola Nath Ghose v. Mothur Mundle [1880] 7 C.L.R. 516 is a very important decision. It was a case in which the tenant of a jote having failed to pay his rent the landlord brought a suit, obtained a decree in ejectment and got possession delivered to him under Section 263, Civil P.C., then in force. The tenant applied for setting aside the execution, failed, and then somehow or other regained possession, grew crops on the land (vide at p. 520) and there was a dispute. The Magistrate took proceedings under Section 530, and awarded possession to the tenant. Garth, C.J., (Macloan, J., concurring) observed thus:

Thus the latter (i.e., the tenant) was directly rewarded by the Magistrate for persistently disregarding the process and the authority of the civil Court.... The case certainly illusrates in a very remarkable way how grievously the powers given to Magistrates by Section 530 may be misapplied, and how useless it is for suitors in this country to establish and enforce their rights in the civil Courts unless the Magistracy will lend their aid with vigour and good will to protect those rights when they are once established. But in this ease the landlord had already not only established but enforced his right in the civil Court. He had been placed in possession, of the 13 bighas of land by the only process which the law provides for that purpose.... He (i.e., the Magistrate) seems to imagine that when a party to a suit is placed in possession of land by a civil Court, unless he at once begins to cultivate, or to exercise some acts of ownership over it, he must be taken after a reasonable time, to have relinquished his rights, and that, if the other party, against whom he has recovered his decree, re-enters upon the land under such circumstances and a quarrel consequently ensues a Magistrate has a right to proceed under Section 530, to try the question of possession between the parties with regard to the decree and execution of the civil Court. If this were the law, it is difficult to see how the right to land could ever be finally determined. It is dear that the Magistrate is quite in error; and if anything were required to show that he is so the cases referred to by the District Judge are directly in point Rai Mohan Roy v. E. Wise [1871] 16 W.R. Cr. 24 and the Raneegunj Coal Association v. Hem hall Ghatwal [1879] 24 W.R. Cr. 17. In both these cases it is clearly laid down that when a civil Court decree has once been passed, determining the rights of parties to disputed land, it is the Magistrate's duty to uphold that decree, and he cannot (as between the parties) proceed under Section 530 to decide afresh upon the question of possession.

75. In another part of the decision the learned Chief Justice commenting on the error made by the Magistrate in appreciating the nature of the possession that had been given by the civil Court observed:

The Magistrate seems to have been under the impression that what is symbolical possession was given to the landlord; but this is a mistake. Symbolical possession is given under Section 264 (Order 21, Rule 36) and is only applicable to cases where the party entitled, to execution does not obtain actual possession of the land, but only the right to receive the rent of it. Here under Section 263 (Order 21, Rule 36) the landlord obtained actual possession; and from that time the possession of the tenant was at an end.

76. In Considering the effect of this decision, one should not lose sight of the fact that the case itself was one in which the decree was inter partes and that the decree was executed and possession was taken under it under, the usual process available under Section 263 of the then Civil P.C., Leaving aside the concluding words of the former of the two passages quoted above, which merely repeated the principle which Rai Mohan Roy case [1871] 16 W.R. Cr. 24 and the Raneegunge Coal Association case [1879] 24 W.R. Cr. 17 laid down as regards the conclusive cbaracter of decree in relation to Section 145, proceedings inter partes, two propositions definitely emerge from the decision : 1st, that possession taken by a decree-holder against a judgment-debtor under Section 263 (Order 21, Rule 35), which in the case of a purchaser would correspond to the kind of possession taken under Order 21, Rule 95, is actual and not symbolical in the eye of the law; an and, that where there has not only been an adjustment of rights but also an enforcement thereof by the process of the civil Court, it is the clear duty of the Magistrate to uphold the effect of such enforcement.

77. In the matter of the petition of Govind Moitra [1881] 6 Cal. 835, the facts were that in proceedings under the Land Registration Act the Deputy Collector decided in the presence of one party that the other party, Govinda Chandra Moitra, had proved his possession. While the said proceedings wore pending certain ryots submitted a petition of complaint alleging that certain other ryots at the instigation of Govinda Chandra Moitra were going to do certain acts which tended to a breach of the peace. On that a police report was called for. This report showed that there was a dispute inasmuch as it stated that two persons claimed to be rival landlords and certain of the ryots took the part of the one side and others of the other side. The Magistrate took proceedings under Section 530, and though he happened in his capacity as Deputy Collector to have decided the land registration proceedings a short while ago-a fact on which, in my opinion, nothing turns-declared the other party, namely, the party antagonistic to Govinda Chandra Moitra, to be in possession. Pontifex, J. said:

Now in my opinion the fact, that these registration proceedings were pending at the time the application was made for interference under the Criminal Procedure Code, should have made the Deputy Magistrate extremely careful not to make any order as to possession under Section 530 unless he was quite satisfied that a bona fide dispute existed, and that a breach of the peace was imminent.

78. Field, J, said:

There is another ground upon which it appears to me that the order of the Deputy Magistrate in this case should be set aside; and that is because there was no such dispute as is contemplated by Section 530. When once a Magistrate has recorded the preliminary proceeding under the section, and has called upon the parties concerned in the dispute to appear before him, the express language of the section does not provide for any further inquiry info the fact of the existence of a dispute likely to induce a breach of the peace. When the parties appear before the Magistrate the law expressly requires only that the fact of actual possession be inquired into. It appears to me that the essence and basis of the jurisdiction, which a Magistrate can exercise under Section 530, depends upon there being a dispute likely to create a breach of the peace; and that when the parties appear before the Magistrate if they are able to show, or if it otherwise appears to the Magistrate, that there is no dispute, or no such dispute as is likely to induce a breach of the peace, the Magistrate should hold his hand and not proceed further. I take it that the term 'dispute' in Section 530 means a reasonable dispute, a bona fide dispute, a dispute between parties who have each some semblance of right or supposed right. It has been decided by this Court, in the case of Rai Mohan Roy v. Wise [1871] 16 W.R. Cr. 24, that when a decree has been passed by a civil Court regarding the land in dispute, it is the duty of a Magistrate to maintain it, and he has no power again to institute proceedings regarding such land under this section of the Criminal Procedure Code. The principle of this decision is this that when the rights of parties have been determined by a competent Court, the dispute is at an end, and it is the duty of the Magistracy to maintain the rights of the successful party. In other words, the defeated party will not be allowed to go to the criminal Court, and alleging the existence of a dispute, invoke the aid of the Magistrate and the police to neutralize the effect of the decree of a competent civil Court. When the rights of the parties have been determined, there is no longer a 'dispute' within the meaning of Section 530; and the proper course for a Magistrate to pursue, if the defeated party does any act that may probably occasion a breach of the peace, is to take action under Section 491, Criminal P.C. and require from such person security to keep the peace. In the case of Rai Mohan Roy v. Wise [1871] 16 W.R. Cr. 24, the question of title had been definitively determined by the civil Court, and no case has, so far as I am aware, as yet arisen in which the principle of that decision has been carried further, or extended to cases in which there has been merely assuming adjudication upon the question of possession. I think, however, that the proceedings under the Land Registration Act, are proceedings to which the same principle-should be extended.

79. I have carefully considered the terms of the police report to which reference was made in the judgment of Pontifex, J., and I have no doubt whatever that there was a dispute between the two landlords each claiming the property for himself and a number of men siding with one landlord and a number again siding with the other. It was, therefore, a dispute that existed in fact. The terms of the police report, so far as they may be gathered, however, do not appear to be sufficiently specific as regards the likelihood of a breach of the peace. But the absence of an apprehension of a breach of the peace as emanating from the dispute is not the only ground upon which either of the learned Judges proceeded. Apart from that circumstance, they examined the nature of the dispute and both of them dealt with its bona fides as dependent upon the circumstance that it had already been decided by the civil Court. I understand the judgment of both the learned Judges as meaning in substance, that when the dispute as to possession has already been determined by a civil Court, it can no longer be regarded as a bona fide dispute which the criminal Court will take notice of. The defining words

a dispute between parties who have each soma semblance of right or supposed right

used by Field, J., may not be quite happy. The judgment of Field, J., it may be noted, appears to have been before the legislature when the Code was redrafted in 1882. His complaint of the omission on the part of the legislature to provide for an inquiry into the question is to whether in fact there was a dispute, sifter a preliminary order was once recorded, was duly taken notice of, and his words

when the parties appear before the Magistrate, if they are able to show, or if it otherwise appears to the Magistrate that there is no dispute, or no such dispute as is likely to induce a breach of the peace the Magistrate should hold his hand and not proceed further,

were reproduced almost verbatim in para. 4 of the section as it was introduced by Act 10, 1882 which came into force on 1st January 1883, and is, in the Code of 1898, Clause (5) of the section. If the legislature did not amend or modify the section with this judgment before them, the inference, in my opinion, is irresistible that this is the interpretation that should be put upon the section.

80. The decision in the case of Doulat Koer v. Rameswari Koeri [1899] 26 Cal. 625, lays down very generally what the duties of a criminal Court are in relation to decrees and orders of a civil Court. It was not a case of delivery of actual possession against a party to the proceedings. The possession, to quote the words of Prinsep, J., in his judgment in that case, was 'possession of some sort' that was given by a civil Court, and for all that one can see it may have been a case of symbolical possession only. Prinsep, J., appears more to have been concerned with the evidentiary value of a decree or order declaring the rights of the parties, for he says:

It is consequently his (i.e., the Magistrate's) duty when that right has been declared within a time 'not remote' from his taking proceedings under Section 145, to maintain any order which has been passed by any competent Court, and, therefore, to take proceedings which necessarily must have the effect of modifying or cancelling such order, is to assume a jurisdiction which the law does not contemplate.... The duty of the Magistrate was to carry out the orders of the civil Court and to maintain those orders by assisting the possession of the person whose title is found by the Court. Under such circumstances we are of opinion that the proceedings under Section 145 were without jurisdiction and that a Magistrate, on a breach of the peace being certified to him, ought to have contented himself by declaring that the orders of the civil Court should be maintained. In this view we think that the proceedings under Section 145 were without jurisdiction and must be set aside, and the possession of Doulat Koer maintained until a competent Court awards possession to some other persons.

81. Now with the utmost respect to the learned Judge I find it exceedingly difficult to treat this decision of his as laying down anything else than a very general proposition for the guidance of Courts in the matter of the weight to be attached to decrees or orders passed by a civil Court with reference to their age. I cannot regard it as a pronouncement of any very high value, as the word 'jurisdiction' seems to have been used only in order to make out a case for interference, the Code of 1898 having only recently taken away the ordinary revisional powers of the High Court in respect of oases under Section 145, and I cannot understand how, if the proceedings were to be set aside as being without jurisdiction, any order could again be passed under that section maintaining the possession of one of the parties. Wilkins, J., said that he generally concurred in what was said by Prinsep, J. His own judgment, however, raises points of difficulty into which it is not necessary to enter, for, as I read it, it suggests that when a person who gets into possession is a trespasser there is no question of possession within the power of the Magistrate to decide-a propositson which, in the form in which it has been put, is not supportable.

82. Doulat Koer v. Rameswari Koeri [1899] 26 Cal. 625 was followed in Kunja Behari Das v. Khetra Pal Singh [1901] 26 Cal. 208, and symbolical possession given as against one of the opposite parties, at least to the proceedings, was held to determine possession in favour of the decree-holder auction-purchaser against all the opposite parties. The learned Judges, Ghose and Taylor, JJ., emphasized, on the lines of the case of Dowlat Koer v. Rameswari Koeri [1899] 26 Cal. 625, the fact that the delivery of possession by the civil Court was 'recent' having taken place only three months before the proceedings, and purported to give effect to the decree of the civil Court as well as to maintain the possession that had been taken under it. It may be mentioned in connexion with this case that there is no very intelligible ground why the possession delivered by the civil Court was considered 'symbolical' only.

83. Shortly after there was another case decided, namely, that of Gordon, Sims v. Johuri Lal [1901] 5 C.W.N. 563, which purported to go far beyond any other case and professing to follow Dowlat Koer v. Rameswar Koeri [1899] 26 Cal. 625, but really taking it a step further, laid down that

the duty of a criminal Court in a case under Section 145, Criminal P.C., where there is a decree of a civil Court for possession in respect of the disputed land is to find which party held such civil Court decree, and then to maintain that party in possession; it is not necessary that such decree should be a decree for possession as between the parties to the proceeding under Section 145, Criminal P.C.

84. It was followed in the case of Krishna Alhadini Dasi v. Radha Syam Panday [1902] 7 C.W.N. 117 and in that case the possession given by a civil Court was maintained, though it was a case in which, unlike the case of Gordon Sims v. Johuri Lal [1901] 5 C.W.N. 563, the decree was inter partes. Gordon Sims v. Johuri Lal [1901] 5 C.W.N. 563, however, was soon dissented from, and not being founded on any good reason or principle, need not be further discussed.

85. A definite note of dissent was struck in the case of Lowsen Santal v. Kali Charan Santal [1904] 8 C.W.N. 719 where a twenty-years old decree had been considered by the Magistrate conclusive on the question of possession.

86. In Guljar Marwari v. Sheikh Bhatu [1905] 32 Cal. 796. Henderson and Geidt, JJ., reversed an order of attachment that had been made by the Magistrate under Section 146, Criminal P.C., in spite of a delivery of possession by the civil Court by which one party had obtained possession in execution of a decree against a person, under or in collusion with whom the other parties claimed, only eight days before the initiation of the proceedings under Section 145, Criminal P.C. It was held that the order under Section 146 was passed without jurisdiction and an order was made in favour of the party who had been put in possession by the civil Court, presumably because the proceedings themselves were not without jurisdiction. The same learned Judges in Kedar Prosonna Laihiri v. Lalit Mondal [1905] 2 C.L.J. 147, while holding that possession found by a criminal Court is not such as can be treated in the manner in which recent possession given under the decree of a civil Court is treated in cases under Section 145, Criminal P.C., very clearly laid down that in proceedings under Section 145, Criminal P.C., the Magistrate should uphold possession given by a civil Court, so that a person who has obtained a decree declaring his right to possession and had been put in possession might not find himself again forced to litigate his title. There is little doubt that the learned Judges were speaking of delivery of possession inter partes.

87. Some of the above cases were considered in the case of Kuloda Kinkar Roy v. Danesh Mir [1906] 33 Cal. 33 by Rampini and Mookherjee, JJ. That was a case in which what the Court was concerned with was a previous order under Section 530, Act 10 (?) of 1872 made 21 years, and the civil Court decree 17 years, before the date of the proceedings then under consideration, and the lands, to which the said order and the decree related had been washed away in the meantime. It was held that there is no inflexible rule of law that a Magistrate in deciding the question of possession under Section 145 is concluded by every previous order of a civil Court or criminal Court relating to the subject of dispute, and the weight to be attached to any such previous order depends on the facts and circumstances of the particular case. It should be noted that this decision does not purport to consider the effect of delivery of possession in execution of a decree in relation to proceedings under 8. 145 inter partes subsequently instituted.

88. Leaving aside eases of lesser importance we come to the case of Atul Hazra v. Uma Gharan Chongdar [1916] 20 C.W.N. 796, in which a clear cut proposition was laid down by Chitty and Walmsley, JJ. In that case one of the parties to a proceeding under Section 145, had obtained a decree against a member of the other party and a stranger, and purchased in execution the undivided one-fourth share of the said defendant in the properties which subsequently formed the subject-matter of the proceedings under Section 145 and obtained delivery of possession of that share through Court. The Magistrate finding that the other party to the proceeding was in actual possession of the property notwithstanding the said delivery of possession and had grown the crops made an order in their favour. The learned Judges set aside the order observing:

It seems contrary to all principles of justice that a judgment-debtor should be allowed to retain possession against the decree-holder who has actually been given possession against him by a civil Court and, in a criminal proceeding, to assert that possession and by force of the order of the Magistrate drive the decree-holder and auction-purchaser for a further declaration of his rights.

89. The learned Judges expressed their full accord with the principles laid down in Basanta Kumari Dasi v. Mohesh Chandra Saha [1918] 40 Cal. 982, but held that that case was distinguishable.

90. In the case of a decree inter partes, when one party was put in execution in possession against the other, the possession delivered was held to be symbolical and the Magistrate disregarded that possession and made an order in favour of the other party, Newbould and Suhrawardy, JJ., set aside the order observing as follows:

The Magistrate here has erred in thinking that the decree can be ignored because the Subordinate Judge of Purulia had no jurisdiction over this land and because the delivery of possession was symbolical. It is not for the Magistrate to question the validity of the decree that has been passed by a competent Court. Also when the decree is inter partes it is immaterial whether the delivery of possession is symbolical or not. We hold that in this case in disregarding this delivery of possession the Magistrate acted with gross irregularity and in a manner that was likely to cause a failure of justice.

91. In Akhoy Mondal v. Basir Rai A.I.R. 1923 Cal. 176, the word 'jurisdiction' was not used, but unless the order was without jurisdiction the learned Judges could not have interfered.

92. In the case of Aran Sardar v. Hara Sundar Majumdar A.I.R. 1923 Cal. 95 B.B. Ghose and Chotzner, JJ., held that when a declaration was made in 1919 in favour of one party under Section 145, Criminal P.C., fresh proceedings under Section 145 initiated in 1922 between the parties who were subsequently identical with those in the former proceedings were without jurisdiction. It was said:

The result of such a course would be that the binding effect of an order under Section 145, Criminal P.C., would be disregarded and any number of proceedings may be initiated by any disappointed party leading to no result whatever, a position which would be surely intolerable.

93. The cases of Hazari Khan v. Nafar Chandra Pal [1917] 22 C.W.N. 479, Atul Chandra Mondal v. Srinath Laik [1919] 23 C.W.N. 982 and Shahabaz Mondal v. Bhajahari Nath A.I.R. 1922 Cal. 364, referred to in the order of reference need not be discussed as they were cases in which the delivery of possession was not inter partes and they are authorities for the proposition that the evidentiary value of previous decree or orders of civil Courts, or of delivery of possession against third parties or of delivery of mere symbolical possession depends upon the particular circumstances of each individual case and upon a variety of factors.

94. The last case of this Court that I shall notice is that of Ambar Ali v. Piran Ali : AIR1928Cal344 , the case which practically was the occasion for this reference and in which on a disagreement between Graham and Cammiade, JJ., the matter being referred to Cuming, J., he held that, except in cases coming within Prov. 1, Sub-section (4), the Magistrate is bound to declare, under Section 145, the possession of the person whom he finds to be in actual possession of the land in dispute and that he is not bound to maintain symbolical possession delivered in execution of a civil Court decree where in spite of the delivery of possession to one party actual possession remained with another. The delivery of possession in this ease was inter partes, and the use of the word 'symbolical' only means that the judgment-debtor may not have been turned bodily out of the property. This comment is necessary to understand the exact import of this decision.

95. Turning now to the other High Courts I propose quite shortly to refer to the more important of the cases in those Courts. As regards the Patna High Court, Puri Das v. Kahlu Behera [1916] 1 Pat. L.J. 536 a Bench of three Judges, Chamier, C.J., and Sharfuddin and Roe, JJ., held on a review of the authorities that when the civil Court decree is 'of a very recent date' it should be followed but that there is no inflexible rule that any decree of a civil Court should be followed 'blindly.' Three years later Sultan Ahmed, J., in the case of Rai Bhubaneswari Koeri [1919] 5 Pat. L.J. 104 held that where possession of immovable property has been delivered to an auction purchaser under Order 21, Rule 25, Civil P.C., that is not symbolical but actual possession and a Magistrate acts without jurisdiction in proceeding under Section 145, Criminal P.C., and in making an order against the auction-purchaser under that section.

Indeed

said he,

if a Magistrate would be permitted to start proceedings under Section 145 under the circumstances in this case I cannot conceive any finality of dispute between the decree-holder and the judgment-debtor. I cannot conceive that the legislature ever intended the multiplicity of fruitless actions which must result if an order of this character is upheld.

96. The Allahabad High Court is inclined to the view that when the dispute between the parties has been adjudicated upon by a competent Court proceedings under Section 145, Criminal P.C. should not be resorted to, but preventive measures under Section 107, Criminal P.C., should be taken: Brahmanath v. Sundar Nath [1919] 17 A.L.J. 434. In Baldeo Baksh Singh v. Raj Ballam Singh [1903] 2 A.L.J. 274 which was the case of a decree inter partes, and the question of jurisdiction arose by reason of the fact that the Code of 1898-1923 had excluded orders under Section 145, Criminal P.C., from the ordinary revisional powers of the High Court and such orders during that period could only be revised on the ground of jurisdiction only Stanley, C J., observed thus:

If the applicants were put into actual possession of the property in dispute upon the occasion of the execution of the decree in 1902, I should doubtless have no hesitation in following the decision to which I have referred in the case of Dowlut Koer v. Rameswari Koeri [1899] 26 Cal. 625.

97. He found, however, that the decree dealt merely with the question of proprietary rights of the petitioner and that the opposite party's possession was never disturbed in execution, and on that ground he declined to interfere. The proposition, that the Criminal Court acts wrongly in taking proceedings under Section 145, Criminal P.C., which may cancel or modify the effect of delivery of possession given by a civil Court has not been dissented from in later cases, though orders under Section 145, Criminal P.C., were held to be not open to revision under Statute 24 and 25 Vic. Cap. 104, Section 15 merely because they were tainted with such an error: Maharaja Tewari v. Haricharan Rai [1903] 26 All. 144, Jhingai Singh v. Ram Pratap [1909] 31 All. 150, Sayeda Khatun v. Lal Singh [1914] 36 All. 233.

98. The Bombay High Court concurred in the view of the law enunciated in Dowlut Koer v. Rameswari Koeri [1899] 26 Cal. 625 with the reservation that it applies

where there is no doubt whatever as to what the civil Court has done, that is to say where it cannot be disputed that certain party has been put in possession by the civil Court: In re. Motilal [1904] 6 Bom. L.R. 246.

99. The Madras High Court in the case of Raghava Aiyangar v. Krishnasamy Aiyar [1908] 31 Mad. 416 made a distinction between cases in which there was delivery of possession in execution of a decree and those in which there was not and declined to interfere with a Magistrate's order by which, in a case of the latter kind, the decree had not been respected. There are other cases of that Court in which symbolical possession delivered under Order 21, Rule 96, Civil P.C., was disregarded in an enquiry or to actual possession under Section 145, Criminal P.C., e.g., Ramalinjam v. Raja of Ramnad [1915] 16 Cr. L.J. 736 or a decree determining the question of title only was not followed in the order made under Section 145, Criminal P.C., e.g., Anna Swamy v. Mutkukumara [1914] 15 Cr.L.J. 663.

100. These are practically all the cases in this country since 1861 which may throw any light upon the question as to the views that have been taken with regard to the matters that are involved in the two questions which arise for consideration and which may for the sake of convenience be repeated here, viz, first. Had he Magistrate jurisdiction to institute the proceedings under Section 145, Criminal P.C., or in other words to take action tinder Clause (1) of that section; and second. Had the jurisdiction to make the order that he did under Clause (6) thereof; the word 'jurisdiction' being understood in the strict sense explained above. It must be conceded that the decisions, far from being uniform, present innumerable points of diversity. Some of these decisions, though comparatively few in number, are indefensible, in principle. Others, though correct, do not profess to lay down any principle at all. Of these that purport to proceed on some principle or other, not a few state it wrongly, inaccurately or inadequately. Sitting on a Full Bench we are not handicapped by any of them, and if I have discussed them somewhat in detail I have done so, only in order to appreciate their exact significance and importance. Confining the examination to those decisions only which seemingly purport to look at the matter from the point of view of jurisdiction, one finds that there are infirmities of at least four kinds which mar, or at any rate, detract from their worth. In the first place that the High Courts, during the Code of 1898-1923, when their ordinary power of revision was excluded, often used the word 'jurisdiction' in order to make out a case for interference. Then there are cases in which, while holding that the initiation of the proceedings were without jurisdiction the High Courts have proceeded to pass or have advised the Magistrate to pass possessory orders on the basis of those very proceedings. Again, there are cases in which the initiation of the proceedings, though not approved, was not declared as being without jurisdiction, while the final order was held to be so. Listly, there seems to have been another factor that influenced some of the decisions, viz., that for cases within Section 145 Judges have not liked to hold, in view of the word 'shall' in the section, that the Magistrate had any discretion and so they used the word 'jurisdiction' in order to advise action under Section 107 once the case came within Section 145.

101. The view that the proceedings were without jurisdiction is supportable on the reasoning that when the dispute as-to possession has been effectively determined there is no longer any dispute which requires adjudication and so none of which the criminal Court need take any notice. Ch. 12 of the Code is headed 'Disputes as to immovable property,' but when one looks at the contents of the chapter one finds that Section 135 speaks of disputes...concerning any land or water or the boundaries thereof, while Section 147 deals with 'alleged right of user of any land or water.' The question whether in some cases the two may wholly or partly overlap need not detain us. It is clear, however, that 'dispute' in S 145 cannot mean all kinds of dispute, but only dispute as to actual possession. To take one example out of many. Suppose A and B are quarrelling over a right of pre-emption in respect of property in the possession of C : nobody will think of Section 145 in respect of such a dispute though it may be of the worst character and fraught with immense potentialities as regards imminence of a breach of the peace. The method prescribed, namely, of calling for written statements of the respective claims of the parties as respects the fact of actual possession, and the means provided, namely, that of making an order declaring a party to be entitled to possession or attaching the property makes this perfectly clear. The words 'dispute concerning land, etc.' therefore have to be understood not quite literally but as a dispute relating to actual possession. For a dispute as to actual possession to be effectively determined it is not enough that there has been a decree determining the rights of the parties, unless it is a decree by which a suit for declaration of right and recovery or confirmation of possession has been dismissed thus putting, an end to the plaintiff's rights and claim for possession for ever and beyond all controversy. In cases of decrees which merely determine the rights of the parties, even if they decide that one party is, entitled to possession as against the other the dispute as to possession still remains; and it is only by delivery of possession in execution of such a decree and in favour of one party as against another that the dispute can be said to be determined beyond any controversy. Such possession, however, must be actual or khas possession and not merely symbolical possession because it is actual possession and not a right to possession that Section 145 is concerned with. If all these requisites are present, there is no dispute in the eye of the law, though in point of fact there may be one.

102. Then again the nature of the enquiry contemplated by the section shows that the 'respective claims as respects the fact of actual possession' is to be investigated. A claim when put forward before a tribunal involves an idea of its capability to be adjudicated upon. I find it exceedingly difficult to conceive how one can put forward a claim before any Court saying:

There is a serious apprehension of a breach of peace. I have been turned out of possession by the civil Court. I am still in possession by some means or other. I cannot get the civil Court to decide on my right to possession again. Please declare my possession, maintain the possession that I have, forbid my opponent to disturb it and ask him to go to the civil Court and to request that Court to reopen and reconsider the matter.

103. That in substance is what a claim of this character comes to. Widely different is the possession of an ordinary trespasser or wrongdoer, whose claim has never been decided by a competent Court; and between him and the rightful owner the criminal Court can hardly give any preference to either except on the footing of actual possession, because to attempt to go on any other footing would be to do the very thing that the law forbids, namely, to decide on the merits of the claim as to the right to possess. This, I understand, is what E. Jackson, J. meant by saying that a Magistrate's powers under Section 318 relate to land regarding which there is a dispute which has not been decided by a civil Court Rai Mohan Roy v. J.P. Wise [1871] 16 W.R. Cr. 24, and Pontifex and Field, JJ. meant by saying that it must be a bona fide dispute, In the matter of the petition of Govinda Chunder Moitra [1881] 6 Cal. 835, and Richards, J., meant by saying that it must be a bona fide or real dispute and not a bogus one: Emperor v. Ram Baran Singh [1906] 28 All. 406. It is this principle of finality that White, J. was thinking of when with reference to a previous order under Section 530, Criminal P.C. he said that it must be shown that the possession thereunder had been lost and a new dispute had arisen: In the matter of Ram Soondaree Debee [1877] 1 C.L.R. 86.

104. It has been urged that determination of the question whether a dispute is bona fide or not involves practical difficulties and so this construction should be avoided. In the first place, it is said, Section 145 by its very terms excludes a consideration as to whether any of the parties have a right to possess, and a determination as to whether a dispute is bona fide and means a determination of a right to persons which is precluded by the section. I am not prepared to accede to this contention, because it is only a fact that will have to be ascertained, namely, whether the aforesaid conditions are satisfied or not. If on the materials on which the proceedings are sought to be found such conditions appear, the proceedings will not be taken. If after the proceedings are taken such conditions are brought to the notice of the Magistrate he will cancel the preliminary order as he is competent to do under Clause 5 of the section. The maxim of English law that

where the title to property is in question the exercise of a summary jurisdiction by Justices of the peace is ousted,

obtained for ages in England, and as observed by Crompton, J. in R. v. Cridland [1857] 7 E. & B. 853, should still he applied there by every Act relating to such matters though not specifically mentioned; or as said by Blackburn, J., in White v. Feast [1872] 7 Q.B. 353, every statute giving summary jurisdiction has the implied restriction as to title. The doctrine, however, has not been consistently applied even in England at all times: see the Full Bench case of Ram Sagar Mandal v. Alek Naskar A.I.R. 1922 Cal. 59, per Richardson, J. In this last mentioned Full Bench case of this Court Richardson, J. also pointed out that in England the superior Courts derive their jurisdiction to decide question of right and title from the common law and may at one time have regarded encroachments with suspicion, while the jurisdiction of the Indian Courts, from the highest to the lowest, depends on statute and that is one of the reasons why the old English doctrine should not be applied in this country.

105. All this, however, does not mean that the Magistrate cannot embark on an enquiry in order to find out whether the case would or would not attract his jurisdiction. An enquiry, however informal, into the character of the dispute has in practice to be daily made in order to find out whether action should be taken under one section rather than another, e g., under Section 107 or Section 144 or Section 145.See the cases discussed in the order of reference in the Full Bench decision in the case of Emperor v. Abbas [1911] 39 Cal. 150, also Emperor v. Ram Baran Singh [1906] 28 All. 406, Kaniz Amina v. Emperor [1918] 3 Pat. L.J. 243, Ganpat Singh v. Emperor [1918] 3 Pat. L.J. 287, Mahadeo Kunwar v. Bisu [1903] 25 All. 537. The Word 'shall' used in Clause (1), Section 145, is no doubt mandatory but much of a mandatory meaning need not be given to it, because it is always open to a Magistrate to take other preventive action and thus put an end to an apprehension of a breach of the peace, and as soon as that element disappears the foundation is gone. I do not see why it should be said, as was said in the arguments, that a trespasser who is continuing in possession cannot be removed from possession by an order against him under Section 107, Criminal P.C., in my opinion the words 'doing a wrongful act' in Section 107, Criminal P.C., are sufficiently wide to include a continuing act of trespass, and although the bond that the trespasser will give under Section 107, Criminal P.C., will require him not to break the peace, if he resists the other party or prevents him from enjoying his exclusive possession and a breach of the peace ensues in consequence, I do not see how the trespasser can escape a forfeiture of his bond. If this meaning of the word 'dispute' he adopted, the initiation of the proceeding under Clause (1), Section 145, being without jurisdiction it logically follows that no order can possibly be made under Clause (6) of that section.

106. If, however, the aforesaid meaning be not attributed to the word 'dispute,' necessity arises to consider the second question. In dealing with this question one has to look at it in its several aspects. Firstly, the object of the proceedings will have to be borne in mind, namely, to prevent a breach of the peace by making a temporary or tentative order which is to be in operation so long only as the rights of the parties are not decided by a competent Court and the rightful party is not put in possession by eviction, if necessary, of the wrongful one (Section 145) or a decision has been passed as to who is the person entitled to possession (Section 146.). The criminal Court thus exercises only a limited jurisdiction, the limits of which must be co-extensive with the exigencies of the object it seeks to attain. As Turner, C.J. put it in his decision in the Full Bench case of Sundaram Chetti v. The Queen [1882] 6 Mad. 203, which was a case under Section 518, Act 10, 1872 (=Section 144 of the present Code):

The Criminal Procedure Code declares the authority of the Magistrate to suspend the exercise of rights recognized by law when such exercise may conflict with other rights of the public or tend to endanger the public But by numerous decisions it has been ruled that this authority is limited by the special ends it was designed to secure and is not destructive of the suspended rights.... I must nevertheless observe that this power is extraordinary and that the Magistrate should resort to it when he is satisfied that the other powers with which he is entrusted are insufficient. Where rights are threatened, the persons entitled to them should receive the fullest protection the law affords them and circumstances admit of. It needs no argument to prove that the authority of the Magistrate should be exerted in the defence of rights rather than in their suspension; in the repression of illegal, rather than in interference with lawful rights.

107. These weighty observations were made in connexion with an order passed, no doubt, under a different section of the Code, but their effect cannot be belittled on that ground. If the Criminal Court finds before it a complete adjudication of the dispute as to actual possession by a competent Court, for it to think of making an order in favour of a party who has been defeated in that Court and to relegate the successful party to get a second adjudication is to ignore the very object which it should have in view and thus would amount to lending countenance to an abuse of the processes of the Court. Nextly, the Civil and the Criminal law are but productions of the same legislature and to permit the criminal Court in the exercise of its limited jurisdiction to override or nullify the proceedings of civil Courts is to attribute an inconsistency to the legislature and to assume against it an intention to create a conflict where harmony is to be presumed. I cannot express my disapproval of such a course in better words than Heaton, J., used, though in a different connexion, in his judgment in the case of In re Markur [1914] 41 Bom. 1. He said:

If we are to administer justice as a civilized country, if we are to avoid conflicts between civil and criminal Courts which ordinarily must be fraught with evil and can produce no good, if, in short, we are to make the actual administration of justice in this country boar a proper relation to that which we profess it to be, then we cannot have criminal Courts trying over again matters which have been thoroughly dealt with and finally decided by a civil Court of competent jurisdiction. It may be that to this principle there would be rare exceptions, founded on, possibly, the discovery of new, cogent and important evidence. But ordinarily that principle must prevail and if that principle must prevail, it is a matter of the first importance, of the very highest relevancy to show to a criminal Court that that matter which the criminal Court is asked to adjudicate on has already been fully dealt with by a civil Court,

108. Thirdly, if the plea of the party who was defeated by the civil Court and ousted from position is nothing more than this that in spite of the delivery of possession by the civil Court he continued in possession, or, in other words, that he was in possession in defiance of that Court, no Court should listen to a plea of that character. In other words in the eye of the law and for the purposes of Section 145, Criminal P.C., such possession cannot be regarded as possession at all. A negative answer, therefore, in my opinion, may be given to the second question also.

109. But the question of jurisdiction, in my opinion, is now a matter of academic interest only, because by the restoration of our ordinary powers of revision under the Code by the amendment introduced in 1923, it is enough to-day, from, a practical point of view, to consider the question of propriety only, as the words used in Section 435, Criminal P.C., are 'correctness, legality or propriety.'

110. Looking at the matter from the point of view of propriety-and not as a matter of jurisdiction-I think I am on much firmer ground when I say that it is improper in the circumstances assumed in the reference either to institute proceedings under Section 145, Criminal P.C., or to pass an order in favour of the unsuccessful party in the civil Court proceedings. In saying this I shall try to define the exact limits within which my anwer should apply.

111. A decree of a civil Court, unless it negatives a right and dismisses a claim to possession, does not determine a dispute as to possession; other decrees, even decrees for possession, do not ordinarily determine such a dispute. This proposition was recognized long ago, and I am not aware that it has been dissented from at any time. In a case under Section 318 of the Act of 1861, it was held by Norman and B. Jackson, JJ., that a party out of possession cannot, even on getting a decree for possession from the civil Court, and without obtaining possession by executing the decree, be declared in possession merely by virtue of the decree itself : Mahant Dhansaj Girt Goswami v. Sripati Giri Goswami [1869] 2 B.L.R. App. Cr. 27. Delivery of possession, to effectively determine the dispute, must be, in fact inter partes or between parties to the proceedings or at least one that may be treated as such. When possession is delivered against a judgment-debtor under Order 21, Rule 35, Civil P.C., or to a purchaser under Order 21, Rule 95, Civil P.C., that is the only procedure by which khas or actual possession may be delivered, and unless there is a refusal to vacate-a case which necessitates the taking of possession by the physical removal of the judgment-debtor-it is as good as any possession may conceivably be.

112. Judged by these tests, in the hypothetical case on which the order of reference proceeds the criminal Court, in my opinion, would have acted altogether improperly in initiating proceedings under Section 145, Criminal P.C., if it at all apprehended the true position at the outset. If it did so at any time during the progress of the proceedings its duty was to drop the proceedings under Clause (5) of the section and to take other suitable measures for preventing a breach of the peace. If it was only at the conclusion of the case that the facts appeared in their true light, the order that the Court passed was, in my judgment, clearly wrong.

113. To turn now to the order of reference.

114. The questions referred are:

(1) Do the words 'actual possession' in Sub-section (1) of Section 145, Criminal P.C., mean actual personal, physical possession even though wrongful, i.e., that of a recent trespasser in actual physical possession at the time of the proceedings under Section 145?

(2) Does the word 'dispute' in the same sub-section mean actual disagreement existing between the parties at the time of the proceedings under Section 145 even though the question as to right to possession has already been decided by a civil Court?

(3) Had the law been correctly laid down in the case of Ambirali v. Poral Ali : AIR1928Cal344 or in the case of Atul Hazra v. Uma Charan [1916] 20 C.W.N. 796 and Akhoy Mondal v. Basir A.I.R. 1923 Cal. 176?

115. My answers are as follows:

(1) If the word 'personal' is omitted from the question, 'Yes;' subject to this that the answer is to apply to oases in which the dispute as to possession has not been determined by a civil Court as explained in the next answer.

(2) 'Yes'--if the decision of the civil Court amounts only to a determination of the right to possession, except in cases where such right and a consequent claim to possession have been negatived by a decree which is either inter partes or may be treated as such, in which excepted cases 'No.' In cases in which khas or actual possession has been delivered by the civil Court either inter partes or between parties who may, in effect, be regarded as parties to the proceedings, the answer is 'No.'

(3) The last two cases correctly laid down the law. As regards the first case I give no answer, because the facts found are not, in my opinion, sufficient to put the case to the tests I have indicated above.

116. Turning now to the case now before us it seems to me that the facts thereof are not exactly what have been stated in the order of reference. In the judgment of my Lord the Chief Justice will be found a careful and accurate summary of the true position. It is apparent that the civil Court has not yet fully and finally adjudicated upon the rights of Afazuddin. It is also clear that the delivery of possession in execution of the decree in favour of the petitioner is of no avail as against Afazuddin, and in the absence of any adjudication as regards Afazuddin's share it was of very little use as an effective decision of the dispute as regards actual possession. I agree therefore in discharging the rule.

Cammiade, J.

117. I agree with my Lord the Chief Justice. The section empowers Magistrates to tak eaction in order to prevent breaches of the peace, and directs them to ascertain who is in actual possession at the date of the order-in writing, referred to in Sub-section (1). The Magistrate is prohibited from enquiring into the merits of the parties claims to, possess. The only exception to the rule laid down that actual possession at the date of the order under Sub-section (1) shall be maintained is that provided in the proviso to Sub-section (4) in cases of forcible dispossession within two months prior to the date of that order. In these circumstances, there can be no room for doubt as to the meaning of the section.

118. There cm also be no doubt that the word 'dispute' used in the section means actual dispute, irrespective of the merits of the parties' claims to possess the land. The object of the section is to prevent breaches of the peace; and it is the duty of the Magistrate to interfere, wherever such a contingency arises, regardless of the good or bad faith of either of the parties. Even if there were no decree establishing the title of one of the parties to the land, bad faith might be imputed and proved. For instance, there may have been an encroachment subsequent to a formal partition by the Collector under the Estates Partition Act or after partition by act of parties followed by execution of a deed. If on each occasion the Magistrate had to enquire into the good faith of the parties before taking action, many breaches of the peace would occur.

119. Disputes such as the one in the present case arise from the fact that decree-holders frequently do not take actual possession. This is especially the ease where the lands are homestead lands in the occupation of the judgment-debtor. If the decree-holder fears violence on the part of the judgment-debtor, and does not cause him to be removed from the land, he must suffer. He must insist on taking actual possession; and he must protect his possession after he has taken it. When the lands are arable lands, the decree-holder, after taking possession, should try and maintain his possession. At the very first act of trespass on the part of the judgment-debtor, he should seek the Magistrate's protection. If he waits till the judgment-debtor has reestablished his possession, the Magistrate will have no authority to restore him to possession. Once the trespass of the judgment-debtor has ripened into possession recognized by law, it is the duty of the Magistrate to maintain that possession and protect it, leaving the other party to seek his remedy in the civil Court.

120. We are unanimous that the rule should be discharged, The order of the Court, therefore, is that the rule is discharged.


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