EMPEROR Vs. HAKIMKHAN

JUDGEMENT

(1.) 1. Hakimkhan, the, malguzar of mouza Amla, pursuant on a decree for arrears of rent against the recorded occupancy tenant Bhagchand had obtained an ejectment order and accompanied by a peon of the Court was placed in possession of the fields, which are now the subject of dispute, on 19th March 1933. On 13th May when he went to plough the fields he was resisted by party No. 2 who are the nephews of Bhagchand and claimed to be in possession of the fields. The preliminary order of the Magistrate was-passed within two months of 13th May 1933 and in the final order the Magistrate-held that Hakimkhan was lawfully in possession at the time when party No. 2 interfered with his possession on 13th May and directed his possession to be maintained. In referring this case the learned Sessions Judge suggests that there was no evidence that Hakimkhan-was actually in possession and that party No. 2 had been continuously in-possession for 8 or 9 years and that the symbolical possession which was delivered to party No. 1 did not disturb the actual possession of party No. 2. It is suggested that the order of the Magistrate should be reversed and the possession of party No. 2 maintained.

(2.) IN the first pace, it is necessary to point out that the learned Sessions-Judge has misconceived the applicability of the term "symbolical possession.'" That term only has application to that formal possession which is delivered when delivery of actual possession is-impossible, such as occasions where the decree passed by the civil Court is for joint possession of immovable property or where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same-and not bound by the decree to relinquish such occupancy. A provision is made in Order 21, Rule 35, Sub-rule (2) and Rule 36 for the manner in which possession is to be given in such circumstances: no actual possession is given. In the case before me there was an actual delivery of possession. An official of the Court accompanied the decree-holder to the spot and an entry was made on the fields. There is also evidence to the effect that ploughs were taken to the fields for the purpose of emphasising possession by the act of ploughing.

(3.) IT is contended on behalf of party No. 2 in support of the reference that such possession as was given by the Court was of no avail against the continued possession of party No. 2 and two rulings of the Calcutta High Court, Ambar Ali v. Piran Ali AIR 1928 Cal 34 and AgniKumar Das v. Mantazaddin AIR 1928 Cal 610, have been pressed in support of this contention. Those cases do not help the applicant's party No. 2. In Ambar Ali v. Piran Ali A.I.R. 1928 Cal 344. the proposition which was negatived, although propounded by Graham, J., was that when possession has been determined by a civil Court no dispute regarding possession really remains, and it was held that possession given by a civil Court cannot, for the purposes of Section 145, Criminal P.C., be considered to prevail over subsequent actual possession however acquired by another party before the statutory period of two months before a preliminary order Under Section 145 is made. The same question was put in a somewhat different form to the Full Bench of the Calcutta High Court in Agni Kumar Das v. Mantazaddin A.I.R 1928 Cal 610 as follows: