1. In these proceedings under Section 145, Criminal P.C., there were six parties the first three being the landlords (the first party holding one anna share, the second party three annas share and the third party a twelve annas share in the land in dispute). The fourth party claims to have executed a kabuliyat in respect of the land in dispute in favour of the second and third parties and is now holding over the term of the lease having expired in 1330. The fifth party is the Chittagong Company which claims to hold possession of a portion of the land where it repairs its launches, and sometimes cuts earth and erects a bamboo jetty fencing when the river rises. The sixth party does not claim any title but says he took a verbal bandobust from the maliks. The learned Deputy Magistrate went thoroughly into the evidence and found that none of the parties had been able to produce sufficient evidence of possession within the meaning of Section 145, Criminal P.C., and therefore passed an order under Section 146, Criminal P.C., attaching the land in dispute.
2. This rule was obtained by the first party on the ground that upon the findings arrived at by the Magistrate, he should have been held to be in possession and that the order under Section 146 was without jurisdiction. The second and the third parties, who were the joint landlords with the first party, have not filed any separate application disputing the findings of the Magistrate; but ad the hearing of the rule they have expressed their intention not to object to the rule being made absolute if the first party agreed to treat them as co-sharer landlords of the land in dispute. The first party has said that he has no objection if the joint possession of all the landlords is declared in the land. The real dispute, therefore, is between the landlords on one side and the other parties who claims possession of the land either on settlement from the landlords or by adverse possession on the other. Applications objecting to the order passad by the Magistrate have been filed on behalf of the fourth and fifth parties. Rules have not been issued upon these applications but it is ordered that they should be heard along with the present rule.
3. We have heard all the parties who have appeared before us except the sixth party who is not represented before us by any pleader and we are of opinion that on the findings arrived at by the Deputy Magistrate the order under Section 146, Criminal P.C., must be held to be bad in law. The position is this: The Magistrate has found with reference to the claim of the fourth, fifth and the sixth parties that they were not in possession. His finding is that the land is fallow and lowlying and during the rainy season covered with water. As happens to all fallow lands people who have any occasion to use them and especially the neighbours use them not with an idea of exercising any act of possession but simply for the sake of convenience. Such being the state of the land, the learned Magistrate has found that the acts which the fourth, fifth and the sixth parties have claimed to have done over it are not in assertion of any title or possession and are not therefore sufficient evidence of possession within the meaning of the section. With this finding we do not disagree.
4. The possession claimed by persons other then the landlords having been disbelieved, possession is presumed to be with parties who have title to the land and admittedly the first three parties have title to the land as claimed by them. This possession may not be actual possession within the meaning of Section 145(1) but on the finding of the Magistrate there is no reason to doubt that the possession exercised by the landlords is sufficient to satisfy the requirements of law. Possession under Section 145, Criminal P.C., must be as has been held in the case of Nayan Manjuri Dassi v. Fazley Huq Sardar A.I.R. 1922 Cal. 502 absolute and continuous and not occasional. But it is not intended that possession must be such as should be exercised continuously or every day of the year. By continuous possession is meant such possession which a party in possession; may have occasion to exercise and has exercised and exercises whenever he likes Continuity of possession should be understood with reference to the object over which it is exercised. It is a fallow land act capable of yielding much profit on the bank of a river and gets covered with water at certain seasons of the year. It is found by the Magistrate that the first party stacked some bricks on it, that the second party sometimes allowed people to dry jute on this land, and that the third party held bastu puja on the land. These are the proper uses of a land of this description and on this finding it cannot be said that the landlords were not in actual possession.
5. The fourth party, who claims to hold over, argues that possession should have been found with him of at least a portion of the land in dispute the finding of the Magistrate is that he held land adjacent to the land in dispute, and in common with other people sometimes uses the land in dispute in storing bamboos, thatching grass, etc. On this finding of fast we do not think that he has been able to prove his possession.
6. As regards the fifth party (the Chittagong Company), they have claimed to have used a portion of the land when it gets under water for repairing launches and also to have put up a bamboo jetty fencing and have got a drain passing aoro33 the land. They do not claim any right to the land; but they claim to have possessed the land in the manner above-described for a long time. The Magistrate was not satisfied as regards the erection of the fencing and in his opinion po3Ses3ion exercised by the Company was not continuous as they used the land, only during the season when it goes under water and not to the exclusion of others. The Company have expressed their willingness before us to take settlement of this land from the landlords. We think that the proposal is reasonable. We, however, do not want in this case to decide the legal rights of the parties.
7. The result is that this rule is made absolute and we direct that possession of the land in dispute be declared in the first, second and the third parties a8 one body of landlords until evicted therefrom in due course of law and forbid disturbance of such possession until such eviction.
8. The applications of the fourth and the fifth parties are rejected.