SUCHIT CHAUBEY Vs. RAM CHANDER TEWARI

JUDGEMENT

(1.) This is a reference by the learned District Magistrate of Ballia in a case Under Section 145 Code of Criminal Procedure recommending t at the order dated 26th October 1952 passed by a 1st class Magistrate of the district declaring Ram Chander Tiwari in possession of the disputed property and directing release of the attachment in his favour be set aside.

(2.) It appears that Ram Chander Tiwari made an application Under Section 145 Code of Criminal Procedure against the opposite-parties in respect of certain plots on the allegations that he was in possession of these plots and the opposite-parties wanted to take forcible possession of them and on account of it there was an apprehension of breach of the peace. The plots in dispute were attached on the police report and both the parties were directed to file their written statements. The learned Magistrate after considering the entire evidence on the record was of the opinion that on the relevant date Ram Chander Tiwari was in possession of the disputed plots. He therefore passed an order in his favour. In revision the learned District Magistrate relying on a decree dated the 20th October 1949 in favour of Harihar Chaubey held that the applicant was not in possession of the disputed plots and the order in his favour wrong. He has therefore recommended that the order of the learned Magistrate should be set aside and the plots in dispute should be released in favour of Harihar Chaubey.

(3.) The reference has been opposed on behalf of the applicant. It is contended that the only question which can be taken into consideration in deciding a case Under Section 145 Code of Criminal Procedure was the question of actual possession on the date of the preliminary order or within two months preceding it; that the question of title could not be taken into consideration in deciding the question of possession and that the learned District Magistrate has been influenced in the decision by a decree of the revenue court Under Section 59 of the Tenancy Act declaring Harihar Chanbey as the tenant of the disputed plots. It is no doubt true that the learned District Magistrate has been influenced by the declaratory decree obtained by Harihar Chaubey Under Section 59 of the Tenancy Act inspite of the fact that there was no decree for possession and that there was a dakhalnama prior to this decree in favour of the applicant. The question therefore that arises for consideration, is how far the decision of the learned District Magistrate is correct. In Pahalwan alias Pan v. State through Nihore Nonia son of Gulab,1951 AllCriR 21 it was held by P.L. Bhargava, J. that a declaratory decree, Under Section 59 of the Tenancy Act, cannot always be accepted as a guide in cases Under Section 145 of the Code of Criminal Procedure, where the Magistrate is really concerned with the question of possession. In this case the learned Magistrate found the opposite parties in possession of the disputed land and directed the release of attachment in his favour. This order was affirmed in revision by the learned Sessions Judge. The applicant went up in revision before the High Court and one of the grounds that was taken in revision was that the lower courts had ignored two decrees of a compentent revenue court Under Section 59 of the U.P. Tenancy Act in favour of the first party and that in face of those decrees the order in question could and should not have been made. It was held that the decrees which were merely declaratory in nature were not sufficient in those proceedings to prove the actual possession of the applicant on the relevant date and as such the courts below were entitled to ignore these decrees. It has not been disputed before me that in a proceeding Under Section 145 Code of Criminal Procedure the Magistrate has to determine the actual possession on the relevant date and not the title of any party. Even if a person is the owner of a certain property and has been dispossessed from it and on account of it there is an apprehension of breach of the peace the learned Magistrate before whom the case Under Section 145 Code of Criminal Procedure is pending in respect of it will only determine the actual possession on the relevant date and restore the possession to the person who was in possession on such date inspite of he fact that he is a trespasser and has no title to the property. It will be then open to the true owner to file a suit for possession in a competent civil court against the trespasser and obtain a decree for possession against him. In this connection reference may be made to the case of Mst. Hosnaki v. State through Sheo Baran Rai,1955 AWR 654. It was held in this case by a Division Bench of this Court after a consideration of the entire case law on the subject that a decision of a competent court on a question of title even if followed by delivery of possession to the successful party, is not conclusive evidence of party's possession. In an inquiry Under Section 145(4), a Magistrate is not bound by any law to give his finding in accordance with the decision regardless of the actual evidence. If the evidence satisfied him that the other party was in actual possession, he is bound by law to declare him to be in possession despite the decision of the Civil Court or the delivery of possession by it. It was further held if the decision relates only to title it was wholly irrelevant because an enquiry into tide was expressly barred and it cannot be admitted in evidence at all. Even if the declaration of title in favour of the successful party implies a finding of his being in possession (because if he was not in possession, he would not have been granted declaration) or even if there was a specific issue of possession and it was decided in his favour, it is not admissible to prove his possession in the inquiry under Sub-section (4).