AGNI KUMAR DAS Vs. MANTAZADDIN

JUDGEMENT

(1.) In this case an application in revision under Section 439, Criminal P.C., has been made to the Court against an order of 13 August 1927, made by the Deputy Magistrate of Comilla under Section 145 of that Code in proceedings instituted on 9 May 1927. A rule having issued and cause being shown before the Division Bench, a reference has been made to this Full Beach. Three points are formulated in the order of reference, viz.- (1) Do the words "actual possession" in Sub-section (1), Section 145, Civil P.C., mean actual personal physical possession even though wrongful, e.g., that of a recent trespasser in actual physical possession at the time of the proceedings under Section 145. (2) Does the word "dispute" in the same subsection mean actual disagreement existing between the parties at the time of the proceedings under Section 145 even though the question as to the right to possession has already been decided by a civil Court. (3) Has the law been correctly laid down in the case of Ambar Ali V/s. Piran Ali or in the case of Atul Hazra V/s. Uma Charan [1916] 20 C.W.N. 796 and Akhoy Mandal V/s. Basir Rai A.I.R. 1923 Cal. 176.

(2.) By the rules of this Court (Ch. 7, Rule 5, Appellate Sides Rules) the case itself is referred to us and we have not merely to answer the specified points of law.

(3.) In these circumstances it is necessary to set out the facts. The applicant before us was the 1 party before the Magistrate. It appears that he took a mortgage in 1906 from Moktar and his wife Arjatannessa; that he sued upon it and after the wife's death recovered a mortgage decree on 15 September 1919, for sale against Moktar and the heirs of the wife. On 16th September 1923, he applied to execute the decree alleging that limitation was saved by an arrangement by which in 1920 he was put in possession of certain portions of the land in lieu of interest. In the end this question was concluded by a decree of this Court on 11th December 1925. The finding was that as against the minor heirs of the wife the decree was no longer capable of execution as the arrangement relied upon to save limitation was not so made as to bind the minors. Thereafter the property was sold as against Moktar and purchased by the decree-holder; an application to set aside the sale for non-service of notices, etc., was prosecuted to the High Court and was dismissed, but this Court on 11 May 1925, made it clear that no decision was arrived at, or could in those proceedings be arrived at, on the question whether the original owner was Moktar or his wife or on the question of their shares. On 8 February 1926, the applicant, i.e., decree-holder first party, was put in possession pursuant to his purchase. It is quite clear that he was not put into actual possession of the homestead and the finding is that he was given possession of the scattered plots of agricultural land by the planting of a bamboo.