ABDUL GHAFFAR AND ANOTHER Vs. STATE

JUDGEMENT

(1.) This is a revision arising out of proceedings under Sec. 145 Code of Criminal Procedure on the following admitted or proved facts and circumstances:

(2.) The learned Counsel for the parties have argued this case at great length. Mr. C.S. Saran appearing for the first party has urged that even according to the evidence of the second party it was the first party (Abdul Ghaffar and. Abiul. Sattar) who was, in actual cultivatory possession of the plots, even though that cultivation may be as Mukhtaream of Smt. Hameedan, on half Batai system. His contention is that for the purposes of Sec. 145 Code of Criminal Procedure the only possession with. Which the courts are concerned is the actual physical possession of a party on the date of the preliminary order or within two months next thereof. In other words, even if the possession of a party is with the permission of the other party, such permissive possession would entitle the possessor to retain the same for the purposes of Sec. 145 Code of Criminal Procedure i.e. the man who has his feet on the land or plots in question would be entitled to protection Under Sec. 145 Code of Criminal Procedure. In support of his contention Mr. Saran has relied upon the case of Thakur Jaikrit Singh and Ors. v/s. Sohan Raj (1) (AIR 1952 Raj. 63).

(3.) In the above case it was laid down that although as against third parties the possession of the servant or agent would be deemed to be that of the master or the principal, but where there is a dispute between the master or the principal on the one hand and the servant or agent on the other about the possession of the property, then the word 'possession' will have to be interpreted in the sense of actual physical possession, inasmuch as Sec. 145 of the Code of Criminal Procedure deals with disputes only about actual physical possession; and as such, the provisions thereof can be invoked in a dispute between a master and a servant or principal and agent themselves in respect of possession of any immovable property. Therefore, if the master or the principal is in constructive possession through his servant or agent & the latter claims possession in himself, it would be the possession of the servant or the agent, which would be maintained in proceedings under Sec. 145 Code of Criminal Procedure. I am in respectful agreement with this proposition of law. In the instant case, let us therefore see whether Abdul Ghaffar who was the Mukhtare am of Smt. Hameedan, and his brother Abdul Sattar were in actual physical possession of the disputed plots on 24.4.64, when preliminary order was passed or within two months next there -of. In this connection, it may be noted that apart from filing a joint application and joint written statement along with his brother Abdul Ghaffar, Abdul Sattar did not even file his affidavit to show that he was in actual physical possession of the disputed plots. According to the affidavits of Abdul Ghaffar and four other persons, who supported because, the possession of the first party was by means of ploughing and sowing the land as well as by paying its rental.