Mohammad Koolayappa Rowthan vs Sheik Abdul Khadir Rowthan and Another

Ayling, J.—With all deference to the view of the learned Judge who heard the revision petition I am unable to construe the finding of the

Deputy Magistrate as anything, but a finding that both parties were in joint possession. This being so, it seems clear that Section 146 criminal

Procedure Code gives him no jurisdiction to pass an order of attachment. The order must therefore be set aside.

Seshagiri Aiyar, J.

The petitioner complained to the Sub Divisional Magistrate of Dindigal that the County petitioner was preparing to commit a breach of the peace

by forcibly entering upon properties which were in his exclusive possession. The defence was that the properties in dispute were the joint

properties of the Petitioner arid the Counter-petitioner and ""that they are in their joint enjoyment"" The Magistrate enquired into the matter and

came to the conclusion that the allegation of the Counter-petitioner as regard''s item 3 was true. He held ""that he could not issue an order declaring

joint possession."" At the same time he directed the attachment of the land included in item 3 u/s 146 of the Code. Against this order, the Petitioner

preferred a petition to the High Court. The learned Judge before whom the case was heard was inclined to hold that if the finding of the Sub-

Divisional Magistrate was that the parties were in joint possession. Section 146 was not applicable but he was of opinion that the Magistrate did

not intend to find such joint possession. I regret my inability to agree in this view. The contention of the Counter-petitioner was that he was in joint

possession of item 3 with the petitioner. The Magistrate refers to the fact that the lands were lying waste in Faslis 1320 and 1321, that is up to the

end of June 1912. Then he deals with the question, as to who cultivated the land after this period and prior to the date of the application. He says

that neither petitioner, nor Counter-petitioner was in actual exclusive possession of, the lands. He concludes on the evidence in favour of joint

enjoyment by petitioner and Counter-petitioner. I feel no doubt that by joint enjoyment he meant joint possession and I cannot accede to the

argument of the learned Public Prosecutor that the Magistrate meant to find only joint ownership and that his judgment indicated that he was unable

to find that either of the parties was in possession.

On this conclusion of mine, the question for consideration is whether the Magistrate had jurisdiction to pass an order u/s 146 of the Code of

Criminal Procedure, That section enables a Magistrate to attach the property if he either finds ""that none of the parties was then in such possession

or if he is unable to satisfy himself that either of them was in such possession. The term ''such possession'' must relate back to Clause (1) of Section

145 which lays down that conditions under which actions dealing with disputes as to Immovable property should be taken. Clause (1) speaks of

actual possession. Dr. Swaminathan contends that actual possession in that clause means exclusive possession and excludes joint possession. The

authorities quoted by him support this view Nritta Gopal Singh v. Chandi Charan Singh 10 C.W.N. 1088, Makhan Lal Roy v. Barada Kanta Boy

17 C.W.N. 205, Manik Chandra Chakravarti v. Preo Nath Kuar (1907) 11 C.W.N. 512 See also Bajendra Narain Roy v. Mahommad

Arzumand Khan 9 C.W.N. 887. None of these cases gives any reason for this restrictive use of the expression. Nor does the earlier decision in

Emperor v. Debendra Nath Bose (1904) 1 Cri.L.J. 682 which says that Section 145 will apply to cases of joint possession give any reason for

that position. I am inclined to think that neither Section 145 nor Section 146 applies to cases of joint possession. The object aimed at by the

legislature is the prevention of the breach of the peace. This can be secured by asking one of the parties to keep away from the property. But

where both parties have been in joint possession and are still prepared to commit a breach of the peace by trying to oust one another, it will not be

in the interests of preventive remedy that both should be maintained in possession. It may establish their rights to remain in status quo. It will

certainly not help the Magistracy in maintaining order and peace that I take to be the reason of the rule why courts have declined to declare the

joint possession of the contesting parties. It is not necessary in this case to determine whether u/s 147 one of the parties cannot be restrained from

disturbing the other.

My conclusion is that the Sub-Divisional Magistrate had no jurisdiction to pass an order u/s 146 on his finding that the contending parties are in

joint possession of the disputed property. I agree that the order should be set aside.