(1.) This application in revision is directed against the order of Mr. A. Wadood, Magistrate 1st Class, dated 2-6-55, in a proceeding under Section 145 Cr. P. C. by which he declared the possession of the 1st party and forbade all interference with the same by the 2nd party. The dispute related to 385 bighas odd, out of which 370 bighas odd are comprised in one plot, namely, plot No. 196 situate in Mahal Pataura. The 1st party claimed 12 annas interest in the disputed land, the 3rd party claimed 2 annas interest therein and the 2nd party claimed possession over the entire area in dispute. The learned Magistrate declared the possession of the 1st party with respect to 12 annas interest in the disputed land. Mr. S. N. Sahay appearing for the petitioners contended that the order passed by the learned Magistrate was wholly illegal and contrary to the provisions of Section 145 Cr. P. C. and cannot be maintained. I think, his contention is well founded and must be accepted. I am afraid the order of the learned Magistrate cannot be maintained. His order is in the following terms :
(2.) It will appear from the above that the Magistrate has not found the 1st party to be in actual possession of the disputed land. His decision is that the 1st party was entitled to possession of the disputed land to the extent of 12 annas interest. This is exactly contrary to what is enjoined upon a Magistrate under Section 145 Cr. P. C. As will appear from Sub-section (1) of Section 145 read with Sub-section (4), what the Magistrate is to decide in such a proceeding is the fact of actual possession of the subject of dispute at the date of the order. The expression "actual possession" obviously means actual physical possession of the disputed land. What will amount to "actual possession" will certainly differ according to the circumstances of each case. It does not necessarily mean bodily personal "possession. It does mean, however, that the person claiming possession must have actual dominion over the property and it should be capable of such possession as the circumstances of a particular case require. Any way, it is necessary for a correct decision under Section 145 that the Magistrate should come to a definite conclusion about actual possession of the property It is not enough in a proceeding under Section 145 to say that a particular person was in possession of an undivided share. The very foundation of a proceeding under Section 145 is maintenance of peace and order and it is manifest that to attain that object the Magistrate should specify as accurately as possible the land which is the subject-matter of dispute. In absence of clear specification, it will be difficult for the Court or for the parties, to determine what they are forbidden to do. A vague order like the one passed by the Magistrate in this case will frustrate the very object of the proceeding under this section. When the parties are laying claim not to the actual possession of the disputed land, but to specific shares therein, then obviously the provisions of Section 145 has no application. Sub-section (6) of Section 145 really requires that the disputed land should be described as accurately as possible with reference to the survey plot number or its boundaries. Several persons may be jointly interested in common land and may have a valid right to possess the subject of dispute but this consideration is quite foreign to a proceeding under Section 145. The Magistrate has to decide the question of actual possession, irrespective of the merits of the claims of any of the parties to the proceedings, and if in such a case one of the cosharers is in possession to the exclusion of others, it is incumbent upon the Magistrate to declare his possession, regardless of the rights of other cosharers to possess. Where (the dispute relates to possession of an undivided share, it does not come within the ambit of Section 145 Cr. P. C., for the simple reason that the subject of dispute cannot be ascertained definitely. If in a particular case the Magistrate is not able to satisfy himself as to which or the parties is in actual possession of the properly, for instance, where the parties are found to be in joint possession on the date of the preliminary order, or where the land in dispute does not admit of accurate specification the proper course for the Magistrate is to attach the subject of dispute under Section146 Cr. P. C., instead of declaring as in the present case, the right of one of the parties to possession of an undivided share a course repugnant to the nature and scope of such a proceeding.
(3.) The order of the Magistrate was thus clearly illegal.