SHRIRAM Vs. SAMIRMAL

JUDGEMENT

(1.) 1. This case has been reported to this Court by the Sessions Judge of Amraoti under Section 438, Criminal P.C., with a recommendation that the order passed under Section 145, Criminal P.O., in favour of party No. 2, Samirmal, by the Magistrate who dealt with it under the said section, should be set aside, and that party No. 1, Shriram, should be placed in possession of the house in question, in his capacity as the present agent of one Kisanchandra. It is an undisputed fact that the property to which the order passed under Section 145 relates, consists of the entire house No. 3078, situated in the town of Amraoti. Kisanchandra has some property, including house property, in the town of Amraoti. Party No. 2, Samirmal, was his agent till the year 1921, in which year he was dismissed from service by Kisanchandra. Since the year 1922 party No. 1, Shriram, is Kisanchandra' a agent. Bach of the two contending parties claims ownership of the house and to hold possession thereof as such. Party No. 1, Shriram, claims ownership on behalf of his master Kisanchandra. The house is a double storeyed one. The upper storey was let out to one Hiralal. In the year 1925, Kisanohandra instituted a suit against Hiralal and Samirmal. Therein he claimed arrears of rent fram Hiralal and in the alternative damages from Samirmal for use and occupation of the house. The amount claimed by the plaintiff was Rs. 80. The trial Court decreed the whole claim against both the defendants. The first appellate Court dismissed the plaintiff's suit with costs on the ground that it was not maintainable, the plaintiff not being full owner of the house in dispute, and there being no privity of contract between the plaintiff and the defendants. The second appellate Court set aside the decree of the first appellate Court, and in its stead made a decree ordering the defendants to pay full claim to the plaintiff as the representative of all the co-owners of the house The decree of the second appellate Court was made sometime after the order under Section 145, Criminal P.C., was passed in favour of party No. 2, Samirmal, and sometime before the submission of the report under Section 438, Criminal P.C., by the Sessions Judge.

(2.) IT has been urged on behalf of party No. 2, Samirmal, in support of the order sought to be revised that the only question which should be gone into in proceedings under Section 145 is one of possession and that as Samirmal was in actual possession of the house in dispute, the order passed by the Magistrate under Section 145, Criminal P.C., is correct and should not be interfered with. It seems to me that this contention is well founded and must prevail. It it quite clear from Clause (4), Section 145, that the Magistrate is not competent to base his final order on the merits of the claims of contending parties to a right to possess the subject of dispute, but that he should, in dealing with eases under the said section, confine himself to the question of actual possession of the property which is and should be the only subject for enquiry in such cases. The whole scheme of Ch. 12, contemplates an enquiry solely with reference to the fact of actual possession' irrespective of title. The mere fact that Samirmal's title has been disproved and that Kisanohandra's title, as one of the co-owners of the house, has been incidentally held to be established in a suit for damages against the former will be of no avail to party No. 1, Shriram, in the proceeding under Section 145, Criminal P.C. It is to be borne in mind in this connexion that the decree obtained by Kisanchandra against Samirmal is one for payment of damages and not for possession of the house. In order that the decree of a civil Court may be binding on a Magistrate as conclusive evidence of possession it has to be established that the decree is one for possession of the property in suit, and that the decree-holder obtained possession through Court in execution of such a decree. It is an order for delivery of possession contained in such a decree that the Magistrate is bound to maintain. It is an admitted fact in the present case that Kisanchandra has not as yet obtained a decree for delivery of possession against party No. 2 Samirmal. In the absence of such a decree the mere fact of an incidental adjudication upon the question of ownership in a suit for damages will be of very little avail to party No. 1, Shriram. Where a civil Court deals only with the question of proprietorship of land its decree will not bar a Magistrate from deciding a question of possession under Section 145, Criminal P. C: vide Baldeo Baksh Singh v. Raj Ballam Singh [1905] 2 A.L.J. 274.

(3.) THEN as regards the question of actual possession it is quite plain from whatever evidence has been adduced by the parties that Samirmal has been in possession of the entire house in dispute. The house is a double storeyed one and only the upper storey was let out to the tenant Hiralal. In the two statements, dated 24th April 1927, submitted by Kisanchandra to the City Superintendent of Police, the former has admitted in clear terms that Samirmal occupied the ground floor of the house, when the latter's agent took forcible possession thereof, and that the tenant Hiralal vacated the upper storey during the pendency of the suit for recovery of rent instituted against him. Further it seems from the evidence of Samirmal as his witness 1 that he has been in possession of the whole house for the last one and a half years since the upper storey was vacated by Hiralal, tenant, and that Samirmal's property vas lying inside the house when Shriram broke open the looks of the house. Party No. 1, Shriram, has also admitted in the witness-box that Hiralal, tenant occupied only a portion of house viz., the upper storey, and that on enquiries he found that Samirmal was in possession of the house, No. 3078, as ex-agent, and was collecting rents. Further on he admits that he had never been in actual possession of the house and that the day on which he broke the locks of the house was the very first day of his entering it. His statement at the end of his examination-in-chief, to the effect that he wanted to take possession and that he did not know in whose possession the house was at the time he attempted to take forcible possession, involves a clear implication that neither he nor his master Kisanchandra was in actual possession of the house or any part of it prior to Shriram's forcible entry. Now as Samirmal was dismissed from service by Kisanchandra so far back as the year 1921 the former's possession subsequent to that year cannot be treated as possession of his quondam master. Samirmal's agency terminated as soon as he was dismissed from service, and his possession of the house subsequent to his dismissal must be deemed to be on his own account. Samirmal has stated in his written statement, as well as in the witness-box that he claimed to hold possession on his own account not only after his dismissal in the year 1921, but also prior to his dismissal. As Samirmal ceased to be Kisanchandra's agent in the year 1921 the former's possession for six years following his dismissal cannot be said to be that of an agent, and consequently of a permissive character. The case Bajirao v. Mt. Dadibai A.I.R. 1926 Nag. 286, relied on by the learned Counsel of party No. 1, Shriram, which deals with the possession of an agent or servant, has consequently no application to the facts of the present case. The observation of the learned Sessions Judge to the effect that: It was simply mischievous on the part of Samirmal to take possession of the house on the tenant vacating it, and then to dishonestly set up his own title. involves the erroneous assumption that Hiralal, tenant, was in possession of the. entire house in dispute while from the brief analysis of the case given in the report of the Sessions Judge it would appear that, according to his view, Samirmal did nothing more than merely locking the house when it was vacated by the tenant Hiralal. But the evidence of Samirmal as his witness clearly shows that he was all along in actual possession of the ground floor of the house on his own account, at any rate, since the year 1921, and that he held actual possession of the first floor for about one and a half years after it was vacated by Hiralal. Proof of his possession stands unrebutted. This evidence leaves no doubt that Samirmal was in actual and peaceable possession when Shriram attempted to take forcible possession. It may be that his possession is unlawful and that of a trespasser. But even a trespasser is entitled to have his actual possession maintained under Section 145, Criminal P.C., provided it is peaceful. It is open to the lawful owner to seek redress in a civil Court and obtain a decree for possession against the trespasser. As already observed what is to be maintained under Section 145 is actual possession irrespective of the question of title. For the foregoing reasons I am unable to accept the recommendation of the Seamed Sessions Judge. The order of the Magistrate passed under Section 145, Criminal P.C. in favour of Samirmal is maintained.