EMPEROR Vs. RAMZAN

JUDGEMENT

(1.) 1. The parties Nos. 1 and 2 are cousins. Party No. 1, Ramzan, filed an application Under Section 145, Criminal P.C., alleging that party No. 2 had, in his absence, broken open the lock of the house in which he lived and taken forcible possession. Party No. 2 replied that the dispute related not to the house at all, but to a room in the house, that the house itself, which consisted of five rooms of which party No. 2 occupied three and party No. 2 occupied two was their joint property; that they, party No. 2, had been in occupation of the room in dispute for three years; that there had been no forcible dispossession and that the complaint was false. The City Magistrate found that the complaint by party No. 1 was a false complaint, that there had been no forcible dispossession at all and no breaking of the lock and that the dispute concerned a room only. It was found that Ramzan had not occupied the room in question for at least two years and that party No. 2 had been in occupation since that time. The concluding paragraph runs as follows: Hasan Khan and Ahmad Khan have undoubtedly been in occupation of the room since some time past and the story about breaking the lock on 4th March 1933 has merely been invented in order to bring the case of Ramzan within the 1st proviso to Section 145(4), Criminal P.C. In the absence of convincing evidence about forcible and wrongful dispossession it would be unjust to eject person in possession. For these reasons I declare that Hasan Khan and Ahmad Khan are entitled to possession of the room in question until evicted therefrom in due course of law, and I forbid all disturbance of such possession until such eviction.

(2.) THE learned Additional Sessions Judge considers that this order is without jurisdiction on the ground that party No. 2 claimed joint possession and never opposed the right of party No. 1 for getting joint possession. The learned Additional Sessions Judge in making the reference continues: Such 145, Criminal Procedure Code, contemplates a dispute between two parties, each of which asserts a right to hold actual possession of the property as against the other. Section 145 does not cover cases where one party claims to hold joint possession and the other party contests such rights. In such cases an order allowing one party to remain in possession till evicted by law is bad and is without jurisdiction.

(3.) RELIANCE has been placed by party No. 1 on Surb Narain Singh v. Biri Mohun Thakur (1896) 23 Cal 80. This related to a dispute as to the right of realization of rent of an undivided village share which is manifestly not definable and tangible property, in respect of which physical possession can be asserted. Neither is the case of Tarujan Bibee v. Asamuddi Bepari (1900) 4 CWN 426 of any assistance. There the order which was revised in the High Court was the obviously improper one that both parties were entitled to joint possession, an impropriety which was aggravated by the direction that one of them was entitled to hold-actual possession until evicted by law. The contention that the learned Magistrate should have confined himself to acceding to the request made by party No. 1 that the proceedings should be quashed is not tenable. When proceedings Under Section 145, Criminal P.C., are once instituted, the Magistrate is enjoined by the provisions of that section itself to carry them if possible to a definite conclusion. The reference is accordingly not accepted.