(1.) The plaintiff's case was that he was a co-owner with the defendant of certain properties which his co-owners leased to him, and so was entitled to exclusive enjoyment. While in this exclusive enjoyment he was disturbed in his possession by the defendants. He filed a petition under Section 145, Criminal P. C., and as a result of the enquiry the Magistrate was unable o say who was in possession. He therefore attached the property and put it in the possession of the local Tahsildar, directing the parties to file a civil suit. Instead of filing a regular suit, the plaintiff filed a suit under Section 9, Specific Relief Act within six months of the date when, according to him, he was dispossessed by the defendants. That suit has been allowed.
(2.) Two questions arose for decision. One was whether in view of Section 145, Criminal P. C. proceedings, a suit under Section 9, Specific Relief Act was maintainable and (2) whether a suit will lie by one co-owner for possession against other co-owners.
(3.) As to the first point, it is argued that since the property is in custodia legis, no suit for possession against the defendants who were no longer in possession would lie. The learned advocate for the petitioner relies on Leo Moore v. Manoranjan Guha, 7 C. L. J. 547: (12 C.W.N. 696). That was a somewhat similar case, except that the date of dispossession alleged by the plaintiff in his suit under Section 9 was not the date when he was originally dispossessed prior to the Section 145 proceedings, but the date on which he alleged that he was dispossessed by the defendants in pursuance of the order under Section 145, Criminal P. C. The learned Judges there held that such a dispossession was, in the words of Section 9, Specific Relief Act, dispossession in due course of law and so would be a bar to a suit under Section 9 (4). When a similar case came up before another Bench of the Calcutta High Court in Azimuddin Ahmed v. Alauddin, 43 I. C 153: (A. I. R. (5) 1918 Cal. 137), Teunon J. who dictated the principal judgment, stated :