1. Atul Chandra Mandal, the petitioner, is the first party in a proceeding under Section 145, Criminal Procedure Code, which ended in an order in favour of the second party, Srinath Laik and Kamalakhi Dasi.
2. The petitioner's case is that the land which formed the subject of the proceeding was held by his father under one Mohendra Chakravarty and that his father let it out to some. Lohars in 1302 B. S.; that the latter failed to pay the rent, and the petitioner obtained a rent decree against them, caused the property to be sold in execution, bought it himself on Jane 13th, 1918, and took possession through Court on August 5th 1918.
3. The case for the second party is, this', that one Sujay Chandra Das was in possession of the village in which the land is situated, that be let the land in dispute to one Sarbeswar Mandal in 1912, that Sarbeswar let it to some Lohars, bat bought it himself in 1915 in execution of a rent decree against them, that in 1324 B. S. Sarbeswar sold his rights to Kamalakhi Dasi wife of Sujay Chandra Das and that she let the land to Srinath Laik on May 2nd, 1918.
4. It is common ground, therefore, that some Lohars were in possession untilrecently and that Srinath was not in actual possession until May 1918, and Atul not until August 1918.
5. The trouble arose a few days after the delivery of possession to Atul on August 5tb, 198, but the proceedings were drawn up on December 12th, 1918, and the question which the Magistrate bad to decide was which of the two parties was in possession on that date.
6. The grounds taken on behalf of the petitioner are three:
(1) that the learned Magistrate has gone into ancient history, instead of confining bis attention to the one question of which party was in possession on December 12th, 1918;
(2) that as one party said the land was in Village Parulia while the other said it was in village Chaoari, an adjudication on that point was necessary to a decision of the case; and
(3) that the learned Magistrate ought to have held himself bound to uphold the order of the Civil Court patting Atul Chandra Mandal in possession.
7. the first ground needs very few words. It is clear that the learned Magistrate appreciated that the question was who was in possession on December 12th, 1918, but to answer that (ideation he had to examine the stories told by both sides.
8. As to the second ground, there is no dispute regarding the identity of the land: whether it is within the boundaries of one village or Another makes no difference as to actual possession, although it would have an important bearing on title.
9. The third ground, however, is the one that has been pressed most, strenuously and it is, no doubt, on this ground that the Rule was issued. The decree to which reference is made was a rent decree obtained by Atul Chandra Mandal against some Lohars: in execution of that decree the holding was put up ' to sale and bought by Atul on June l3th 1918: possession was given to him by the Civil Court on August' 5th, 1918. With regard to that decree it is to be noted that the defendants were not the Lohars mentioned by the second party, and that neither Srinath Laik nor Kamalakhi Dasi-the' members of the second party-nor any of the Lohars mentioned by them were parties to the decree and that the decree was Obtained exparte. There has, therefore, been no adjudication by a competent Court between the parties now litigating. It is urged that this fact is of no consequence and that the second party should have been left to seek redress under Order XXI, Rule 100. It is quite true that that provision gives a remedy to one who has been dispossessed, but their case is that they were not, in fact, dispossessed, and that appears to be the finding of the learned Magistrate although it is not very clearly expressed. Numerous authorises have been quoted before us on the question of the weight to be attached in proceedings under Section 145, Criminal Procedure Code, to a decree of the Civil Court regarding the property in dispute, but I do not thick it necessary to refer to them in detail, for they have been discussed at some length in the case of Kulada Kinkar Roy v Danesh Mir 33 C. 33; 2 C. L. J. 27l; 10 C. W. N, 257; 2 Cr. L. J. 670 (F. B.). If was there held that a previous order of the Civil Court relating to the property in dispute might throw light upon the matter, but the evidentiary value to be attached to such a piece of evidence must depend upon the particular circumstances of the individual case. This, I think,' is the view that has been taken by the learned Magistrate, for be points out Several facts about that rent suit, all tending to the conclusion that it was not a bona fide suit by a landlord against tenants in actual possession.
10. In my judgment the learned Magistrate has not committed any error in his treatment of the proceedings in the Civil Court. As the grounds taken by the petitioner fail, the Rule must be discharged.
Shamful huda J.
11. The petitioner purchased the land covered by the proceedings under Section 145, Criminal Procedure Code, in execution of a rent decree and obtained symbolical possession. The sate took place on the 13th of June, possession was delivered on the 5th of August and the present proceedings ware taken on the 13th of August 1918. The Magistrate has put the opposite party in possession of some of the lands purchased by the petitioner, finding that this land was never in 'possession of the tenants whose holding Was sold, that it did not form a part of any such holding and that on the date of the proceedings it was the opposite party that was in actual possession inspite of the execution of the writ for delivery of possession.
12. In support of the Role Mr. Sarbadhikari has contended that the Magistrate had no jurisdiction to go behind the Civil Court decree and be has relied on a number of rulings which support his contention more or less, and decisions taking a contrary view have also been placed before us by the learned Vakil who appeared to show cause against the Rule. These decisions are not wholly reconcilable.
13. In the case of Doulat Koer v. Rameswari Koeri 26 C. 625, 3 C. W. N. 461, it appears that Doulat Koer had obtained Letters of Administration to the estate of her husband after a protracted litigation which went up to the Privy Council. The opposite party Dulin Saheba claimed possession by right of purchase from one Mahadeb, in whose favour Doulat Koer was said to have created a Dur mukarari interest pending the suit for the purpose of defraying the expenses of the appeal to the Privy Council. During the pendency of the suit the property was in the possession of a Receiver, and it appeared that when the Receiver vacated, possession was made over to Doulat Koer. Prinsep, J., held that the Magistrate acted without jurisdiction in, putting Dulin Saheba in possession. He observed: 'it is not for the Magistrate in this summary proceeding to consider whether as against Doulat Koer this confers a perpetual title to possession. 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 any; person Whose title is found by that Court.' In'', Gordon Sims v. Johurry Lai 5 C. W. N. 563, Sale and Pratt, JJ, following the decision in Doulat Koer's case ,said: 'We are aware' of no rulings which prescribe that the Magistrate is to maintain a party in possession in accordance with a decree of Civil Court only when the opposite party is a 'party to that decree.' In the case of Gutra Marwari v. Sheik Bhatoo 32 C. 796; 2 Cr. L. J. 761, a Civil Court decree was held binding even against third parties. The tendency of later decisions has, however, been not to consider a' Civil Court decree binding against third, parties even for purposes of proceedings Under Section 145, Criminal Procedure Code. To this class belong the oases of Bloomfield v. Gangadhar Kundu 4 C. L. J. 562; 4 Cr. L. J. 503, and Jogbandhu; Shaha y. Raj Kumar Roy Chowdhury 15 Ind. Cas. 999; 13 Cr. L. J. 583, Between these two views we may safely adopt a middle course, and I feel no hesitation in following the decision of, Rampini and Mookerjee, J J., in Kulada Kinkar Roy v. Danesh Mir 33 C. 33; 2 C. L. J. 271; 10 C. W. N. 257; 2 Cr. L. J. 670 (F. B.), in which it was observed that there is no inflexible rule of law that a Magistrate is concluded by every previous order of a-Civil or Criminal Court and that every case must depend on its own particular circumstances.
14. Decrees of Courts, so far as third parties are concerned, may have different values in different cases. Where, for instance there has been a real contest between the parties to a suit and upon an adjudication regarding title or possession a party has been awarded a decree and has been put in possession in execution of such a decree, it may not be enough for a party claiming adversely to such a decree to show that he was not a party to it.
15. Cases of money decrees followed by sale of properties would stand on a different footing. In these cases the sale in execution only passes the right, title and interest of the judgment-debtor Consequently, there is no adjudication regarding, his title to the property, except where an attachment gives ,rise to a claim and: there, is an adjudication on such claim or where the delivery of possession leads' to an investigition, under, Order. XXI, Rules 97 to 100 of the Civil Procedure Code.
16. In estimating the, value of delivery of possession against third parties it is also material to see what is that true nature of the possession said to have been delivered.
17. In the present case there was a suit for rent, there was no contest and there was an ex parte There, was no adjudication of any, kind regarding the title and possession of the tenants whose holding was brought to sale and all that was done in, delivering possession, was the positing of a bamboo, and it does not appear i that the second party were present when the bamboo was posted or had any opportunity of offersing resistance to such delivery of possession The Magistrate who tried the case was also not satisfied that the proceedings in the; rent suit were bona file.
18. Under these circumstances I do not think;, the Magistrate went beyond his jurisdiction in disregarding the decree of the Civil Court and I agree with my learned brother in discharging the Rule.