1. This Rule is directed against an order made by the Deputy Magistrate of Faridpur declaring the 1st party to certain proceedings under Section 145 of the Code of Criminal Procedure to be entitled to possession of the land in disputed forbidding disturbance of such possession until their eviction in due course of law.
2. For the disposal of the Rule it is, in my opinion, sufficient to say that on his own finding the Deputy Magistrate was not competent to make the order complained of.
3. The order under Section 145, Sub-clause (1), was made on the 23rd of June 1916, and on the evidence adduced the Deputy Magistrate finds that the petitioners, who were the 2nd party to the proceedings, took possession and the 1st party were dispossessed on the 5th of April 1916, that is, two months and eighteen days before the initiation of the proceedings.
4. It next appears that on the 8th of April, i.e., three days after the dispossession, the Sub-Divisional Officer of Faridpur made an order under Section 144 of the Criminal Procedure Code, directing the 1st party to abstain from entering upon the land in question. The possession taken by the present petitioners on the 5th of April having been wrongful, the Deputy Magistrate is of opinion that it should not be held to have continued during the period the order made against the opposite parties under Section 144 on the 8th of April remained in force. He, therefore, deducts this period of two months and so brings the case within the first proviso to Sub-section (4) of Section 145.
5. On the Magistrate's finding that the petitioners had taken possession on the 5th (and so were in possession on the 8th of April), his exclusion of. the two months during which the injunction against the opposite parties continued cannot be defended on any intelligible principle, and no attempt has been made before us to support this part of his judgment.
6. But it is urged that the materials on which the Magistrate finds that the petitioners took possession and that the opposite parties were dispossessed on the 5th of April are insufficient and that the Magistrate in fact did not mean what he said. But there is evidence in support of this finding and into the question of its sufficiency, I am of opinion, we ought not to enter. The suggestion that the Magistrate intended to come to a different finding is also one I am unable to entertain. No doubt, having come to his finding regarding dispossession the Magistrate does a little later on say: 'The possession of the Raja's men (i.e., the petitioners) was established by erection of houses daring the period the injunction order was in force against Probhat Babu (i.e., the opposite parties).' Here no doubt the Deputy Magistrate used the word 'established' in the sense of 'strengthened' or 'confirmed' and the passages I have cited and other passages cannot, in my opinion, be held to affect the clear and unambiguous finding that possession was taken and the dispossession effected on the 5th of April. That the Magistrate intended to come and did come to this finding is, if possible, made still more clear by (his, that it is only by availing himself erroneously of the proviso to Sub-section (4) that he conceives that he is entitled to make the order he has done.
7. For these reasons the order complained of, I am of opinion, must be set aside.
8. I agree that the order of the Magistrate declaring the 1st party entitled to possession must be set aside.
9. The two main points urged against the order are that the Magistrate ought to have treated the Collector's order in the survey proceedings on the same footing as a Civil Court decree, and that on his finding that the 1st party was dispossessed on the 5th April, i.e., more than two months before the preliminary order under Section 145(1), the order ought not to have been made.
10. I must confess that in the somewhat confused state of the record I am not sure that I correctly appreciate what happened in the survey proceedings. So far as lean gather, the Collector made an order under Section 41 of Act V of 1875 (B.C), the effect of which was that the land in question was surveyed as in the estate of the 2nd party. It is not for the Magistrate in a proceeding under Section 145, Criminal Procedure Code, to criticise the proceedings of the Collector which resulted in that order, he ought only to look to the effect of the order, viz., that it has the same effect as a decree of the Civil Court. There have been a number of decisions to the effect that, where possession has been delivered as the result of a decree of a Civil Court, the Magistrate ought to maintain that possession. Here though there is no question of possession having been given as a result of the survey proceedings, the Collector's order had the force of a decree of a Civil Court declaring possession and should have been maintained by the Magistrate.
11. As to the second point the Magistrate's language is confusing, and the sentence in which he states his finding 'that Probhat Babu's tenants were in possession of the disputed land on 5th April 1916, on which date they were dispossessed by the Raja's men by the forcible erection of certain huts', would at first sight suggest that he intended to find that the 1st party lost possession on the 5th April. It is a sufficiently startling proposition that the erection of three huts on an area of 800 bighas would at once pass the possession of the whole of that area and if a Magistrate advanced such a theory, one ought to carefully examine the specific facts found in order to see whether he really appreciated the meaning of the language used. But if the sentence quoted is read with two other passages in the judgment following shortly after, it becomes, in my opinion, clear that the Magistrate did not intend to come to the finding attributed to him. He says: 'The Sub-Divisional Officer without taking any evidence of possession passed an order of injunction against Probhar Babu and his men on 8th April 1916, and the possession of the Raja's men was established by erection of houses during the period the injunction order was in force against Probhat Babu. I discussed before that the Raja's men did not actually occupy the houses at the time of the investigation by the Sub-Inspector on 6th April 1916', and again: 'The Legislature could not have contemplat--ed such a case as the present, when the 2nd party were practically helped by the Magistrate in getting adverse possession against the 1st party.' Although then in terms in the first sentence quoted the Magistrate speaks of dispossession on the 5th April, he speaks of possession being established by the 2nd party at a later date and of the order under Section 144 helping the 2nd party to get possession at a later date. The Magistrate seems to have intended to find that though dispossession of the 1st party began on 5th April, they were not dispossessed of the whole land till a much later date.
12. The difficulty of upholding the Magistrate's order, however, lies in another circumstance. The proceedings were instituted on the 23rd June when the 2nd party was in possession. Unless then the proviso to Section 145(4) applied the order should have been in favour of the 2nd party. But it cannot be said that while the 1st party was restrained by the Magistrate's order under Section 144 from going on the land they were forcibly and wrongfully dispossessed. The proviso, therefore, did not apply and the Magistrate ought to have proceeded on the possession on the 23rd June.
13. This result only shows the care that should be exercised before an one-sided order under Section 144 is made.