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Criminal Revision Case No. 430 of 1968, decided on 6th February 1969.

S. 145‑Provisions deal only with question of possession of disputed property and not question of right, title and interest‑Magistrate, on enquiry, has to decide and give a finding as to which of parties was in actual physical possession of property on date of preliminary order-- Actual physical possession cannot be inferred from documents but must be proved by direct and positive evidence.

Section 145 of the Code of Criminal Procedure deals only with the question of possession and not the question of right, title and interest. After passing of the preliminary order, the question before the Magistrate is to ascertain the possession of the parties on the date of that order. A Magistrate acting under section 145 (4) has to decide the possession of the subject of dispute without reference to the merits of the claim of any party. The Magistrate has to decide on enquiry and give a finding as to whether any or which of the parties was in possession of the property in dispute at the date of the preliminary order. Except as provided by provisos to subsection (4), the Magistrate is not concerned with previous possession or with the question as to how possession was obtained, though he may take these facts into consideration in deciding the question of possession at the date of the preliminary order. The question of possession has to be determined with reference to a specified point of time, viz. the date of the initial order or in the case of forcible dispossession a date within two months next preceding such order. In a proceeding under section 145, Cr. P. C. the material question for decision is the question of possession at the date of the order under subsection (1) of section 145. The words "such possession" in section 145 (4) mean actual physical possession as distinguished from constructive possession. The Magistrate cannot under subsection (4) decide the question of actual possession on evidence at all or merely on the written statement of the parties.

The question of actual possession is a factual matter of day to day occurrence and it must be proved by direct and positive evidence. Actual physical possession cannot be inferred from documents. Section 145, Cr. P. C. does not contemplate a possession of 3/4 years back. It contemplates a possession in present i.e. a possession on the relevant date or a date within two months next preceding the date of preliminary order. Beyond that a Magistrate need not go and it is not necessary for him to say who was in possession before that period. The position would however, be otherwise where a Civil Court finally decided the question of right, title and possession between the parties and in that case the criminal Court must yield to it and respect the finding of possession made by the Civil Court.

I L R 11 Cal. 365 ; 50 Cr. L J 573 ; 51 Cr. L J 3 ; 53 Cr. L J 148 ; 1953 54 Cr. L J 93 and Mirza Hussain v. Mirza M. Mehdi Hasan 23 Cr. L J 684 ref.

A. R. M. Amirul Islam Chowdhury for Petitioner.

Shafidur Rahman for the Opposite‑Parties.

This Rule is directed against an order dated 6‑1‑68 passed by Mr. M. A. Hashem, Magistrate, 1st Class, Sandip in a proceeding under section 145 of the Code of Criminal Procedure.

The first petitioner lodged a G. D. entry on 31‑7‑62 apprehending breach of the peace by the second‑party‑opposite- parties in respect of certain lands measuring 2.24 decimals claimed by the first‑party by virtue of auction purchase and delivery of possession through Court. The local police after due enquiry submitted a report recommending for drawing up a proceeding under section 145, Cr. P. C. and attachment of the properties and accordingly the proceeding was drawn up.

The first‑party claimed to have purchased the disputed lands along with other lands in an auction sale on 10‑11‑58. The possession of the lands was given to him by the Civil Court on 11‑1‑59. Since then, the disputed lands have been in his possession and he has grown the Aus paddy in the said lands in 1369 B. S. (corresponding to 1962).

The case for the second‑party was that the first‑party never possessed the disputed lands and although he purchased the lands in the auction sale, he did not get the actual possession but got the symbolical possession only. The lands in question were all through in their possession.

The contesting parties fled written statements before the learned Magistrate in support of their respective claims. The first party examined four witnesses but the second‑party adduced none. Both parties, however, produced certain documents and these were duly marked as exhibits. The second‑party relied mainly on the Exhs. A, B and C.

The learned Magistrate considering the evidence and materials on record, found the second‑party in possession of the disputed lands by an order dated 6‑1‑68. In deciding the question of possession, the learned Magistrate relied on the Exhs. A, B and C and disbelieved the evidence of the witnesses adduced on behalf of the first‑party. The first‑party‑petitioner challenged the propriety of the above order before the Sessions Judge, Chittagong and prayed to refer the matter to the High Court under section 438, Cr. P. C. The learned Additional Sessions Judge, Chittagong rejected the application by an order dated 27‑4‑68. The petitioner thereafter moved this Court and obtained the present Rule.

Mr. Amirul Islam Chowdhury, learned Advocate appearing for the petitioner has contended that the learned Magistrate, in spite of the oral evidence adduced by the first‑party, illegally found the second‑party in possession of the disputed lands, without any evidence of possession adduced by them, simply on the basis of some Civil Court's papers, not inter parties and that the finding of possession being based on no evidence is not sustainable in law.

P. W. 1 Yunus Mia is the petitioner himself. He has stated in his deposition that he brought a Civil Suit against second party Abdur Rashid and another (vide T. S. No. 44 of 1952) in the Court of the subordinate Judge, Noakhali and got the decree (Exhs. 1 and 2) and that in execution of the said decree the disputed lands were put on auction sale which he purchased on 10‑11‑58. Exh. 3 is the sale certificate. He has further stated that the Civil Court delivered possession of the disputed lands to him on 11‑1‑59. Exh. 4 is the order for delivery of possession and Exh. 5 is the peon's report. He has also stated in his deposition that he has been in possession of the lands since delivery of possession to him an 11‑1‑59 and grown the Aus paddy in the disputed land in the first part of Baisakh 1369 B. S. (Corresponding to 1962). P. W. 2 Amtnur Rasul has stated in his deposition that the first‑party has been in possession of the disputed lands before the institution of this case and that the first‑party has grown the Aus paddy in question in the said lands. The second‑party was not in possession of the land since its delivery of possession on 11‑1‑59 to the first‑party. P. W. 3 Ruhul Amin and P. W. 4 Nurullah have similarly stated in their evidence that the first‑party has been in possession of the disputed lands and he has grown disputed Aus paddy in 1369 B. S.

The evidence of P. Ws. 1 to 4 are all through consistent. The learned Magistrate has disbelieved the evidence of the P. Ws. on minor reasons. The evidence of these witnesses being otherwise reliable and convincing the learned Magistrate seems to have wrongly disbelieved their evidence.

The second‑party, as I have already mentioned earlier, has not examined any witness and as a result there is no oral evidence on record to support their possession on the relevant date. To prove possession they mainly relied on Exh. A, the certified copy of the judgment of Miscellaneous Case No. 2 of 1959 at Saodip Munsif's Court instituted by the wife of the second‑party Abdur Rashid against the first‑party Yunus Mia for restoration of possession of the auction sold lands, Exh. B, the certified copy of deposition of Yunus Mia and Exh. C, the certified copy of written statement filed by the said first‑party Yunus Mia in the above Miscellaneous case.

It appears from the above exhibit that one Mst. Golap Noor, wife of second‑party Abdur Rashid instituted the above Miscellaneous case against Yunus Mia for restoration of possession of the auction sold lands and in that suit the first‑party Yunus Mia in his written statement and deposition admitted that he only took symbolical possession of the lands in question and not the actual possession and that the said Golap Noor was still in actual possession of the auction sold properties. The above Miscellaneous Case No. 2 of 1959 was dismissed and the prayer for restoration of possession was rejected as the first‑party Yunus Mia only took symbolical possession at that stage. That case was disposed of on 25‑4‑59. The Exhs. A, B and C are all of 1959. The contesting parties in the above Miscellaneous case and the present case are not exactly the same.

The question for consideration here is whether the admission of possession as made by the first‑party in 1959 or the finding of the learned Munsif in that Miscellaneous case in 1959 can ire any way reflect upon the question of possession to be determined by the Magistrate in a proceeding under section 145 of the Code of Criminal Procedure.

Section 145 of the Code of Criminal Procedure deals only with the question of possession and not the question of right, title and interest. After passing of the preliminary order, the question before the Magistrate is to ascertain the possession of the parties on the date of that order. A Magistrate acting under, section 145(4) has to decide the possession of the subject old, dispute without reference to the merits of the claim of any party The Magistrate has to decide on enquiry and give a finding as to whether any or which of the parties was in possession of the property in dispute at the date of the preliminary order. Except as provided by provisos to subsection (4), the Magistrate is not concerned with previous possession or with the question as to how possession was obtained, though he may take these facts into consideration in deciding the question of possession at the date of the preliminary order. The question of possession has to be determined with reference to a specified point of time, viz., the date of the initial order or in the case of forcible dispossession a date within two months next preceding such order. In a proceeding under section 145, Cr. P. C. the material question for decision is the question of possession at the date of the order under subsection (1) of section 145. The words "such possession" in section 145(4) mean actual physical possession as distinguished from constructive possession. The Magistrate cannot under subsection (4) decide the question of actual possession on no evidence at all or merely on the written statement of the parties. In this connection, the cases reported in I L R 11 Cal. 365, 50 Cr. L J 573, 51 Cr. L J 3, 53 Cr. L J 148 and 54 Cr. L J 93 may be referred to.

In the instant case, as I have indicated earlier, the second party did not examine any witness to prove their actual physical possession on the relevant date or on the date within two months next preceding the date of the preliminary order. They only relied on some documents as discussed earlier. The question of actual possession is a factual matter of day to day occurrence and it must be proved by direct and positive evidence. Actual physical possession cannot be inferred from documents. Even accepting that the Exhs. A, B and C supported the possession of the second‑party in 1959 but from that it does not follow that the second party are in actual physical possession of the disputed land on the relevant date i.e. 31‑7‑62. In 1959, the second‑party might be in possession but that was a possession of 3/4 years back. Section 145, Cr. P. C. does not contemplate a possession of 3/4 years back. It contemplates a possession in present i.e. a possession on the relevant date or a date within two months next preceding the date of preliminary order. Beyond that a Magistrate need not go and it is not necessary for him to say who was in possession before that period. The position would, however, be otherwise where a Civil Court finally decided the question of right title and possession between the parties and in that case the criminal Court must yield to it and respect the finding of possession made by the Civil Court. In this view of the matter, in the absence of any positive and direct evidence, it cannot be safely held on the basis of the document, Exhs. A, B and C that the second‑party was in actual possession of the lands on the relevant date. Thus the findings of possession in favour of the second‑party is based on no evidence at all. In this connection the case of Mirza Husain v. Mirza M. Mehdi Hasan (23 Cr. L J 684) may be referred to.

In the light of the above discussion, the declaration given by the learned Magistrate that the second‑party would continue in possession until evicted in due course by the Civil Court is not at all justified. In the circumstances, I have no other alternative but to set aside the order of the learned Magistrate. But in view of the peculiar nature of the case and the paucity of evidence, I think the proper course would be to send the matter back to the learned Magistrate for further enquiry into the question of actual possession on the basis of the evidence on record and further evidence to be adduced by the parties. In case of conflicting and unsatisfactory evidence, the Magistrate may take step under section 146, Cr. P. C. if he considers it fit.

Accordingly the impugned order is set aside and the case is remanded back to the original Court with a direction to proceed in accordance with law in the light of the observations made above.

The Rule is thus made absolute.

Rule made absolute; case remanded.

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