Sadhu Ram and others vs Charan Singh and others

Shamsher Bahadur, J.—This is a landlord''s appeal from the judgment and decree of the learned District Judge, Karnal, granting a declaratory decree in favour of the Respondents that they are tenants in possession of 281 bighas and 8 biswas of the disputed land and an injunction restraining the Appellants from interfering with their possession.

The Appellants, Jagat Ram, Ruli Ram and Sadhu Ram, who are brothers, own 763 bighas of agricultural land in village Shamaspur of Karnal tehsil. They gave this land on a lease for a period of five years in 1951 to Dharampal and others. This lease was extended up to the end of Rabi, 1957. Though the lessees gave up possession of the land the Respondents, Charan Singh, Inder Singh, Santa Singh, Banta Singh, Harnam Singh, Amar Singh, Santokh Singh and Mohinder Singh, claimed to be in cultivating possession of the land under the lessees and asked for a declaration to this effect. It appears that the Respondents refused to vacate the land on termination of the lease and at the instance of the landlords the matter was referred to the Magistrate, Karnal, u/s 145, Code of Criminal Procedure. A preliminary order was passed by the Magistrate on 19th of October, 1957, that the landlords in possession had been ousted by force. The final order of the Magistrate (Exhibit P. 30) was passed on 23rd of July, 1958 and the possession was restored to the landlords. The present suit was filed by the Respondents on 14th of March, 1960.

The suit was dismissed by the Subordinate Judge, Karnal, on 23rd of August, 1960. In appeal the learned District Judge reversing the decree of the trial Judge found that the Plaintiffs Respondents were in possession of 281 bighas and 8 biswas of the disputed land and a decree was granted in favour of the Plaintiffs for a declaration that they were in a possession of it and their possession should not be disturbed by the landlords.

Aggrieved by the appellate decree of the learned District Judge, the landlords have come in appeal to this Court. Mr. Mittal, the learned Counsel for the Appellants, has argued that the order passed by the Criminal Court is final and the findings that the Appellants were in possession is unchallengeable. Secondly, it is argued that the finding of the lower appellate Court that the Plaintiffs Respondents were in actual possession of 281 bighas and 8 biswas of land is erroneous in law. In support of his first contention. Mr. Mittal has cited a Single Bench judgment of Abdul Rahman J. in Sewa Das v. Ram Parkash AIR 1947 Lah. 173. It was observed by the learned Judge in this case that "the foundation of jurisdiction for a Court to pass an order u/s 145, Criminal Procedure Code, is only laid when a party is actually found to be in actual possession of the property on the date on which his possession Was likely to be disturbed and to cause a breach of the peace." In the view of toe learned Judge, once a Criminal Court passes an order u/s 145 directing possession of a certain party it is not open for a civil Court to go behind or to question that finding, although it is open, to a civil Court to decide that a person found or deemed to be in possession of the property had no right or title whatsoever to be or to remain in possession and to put any other person in possession if his right or title to get into possession are found for him. Section 145 of the Code of Criminal Procedure prescribes the method of settling a dispute with regard to possession where it is likely to cause breach of peace. On a summary enquiry, the Magistrate is empowered to direct that on a certain date a certain party had been dispossessed and he can restore possession to that party if the dispossession took place within two months. It is important to note that under Sub-section (6) of Section 145, the order of the Magistrate is dependent on the final verdict of the civil Court concerning title The disturbance is forbidden only till the decree of the civil Court is passed. As observed by their Lordships of the Privy Council Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani 29 I.A. 24 at p. 33, the orders passed u/s 145 of the Code of Criminal Procedure are mere police orders and the order of the Magistrate obtains only till I a decree for eviction is passed by a Court in due course of law. The matter came up for consideration before the Supreme Court in Bhinka and Others Vs. Charan Singh, and as stated by Mr. Justice Subba Rao at page 966:-

The foundation of his (a Magistrate''s) jurisdiction is on apprehension of the breach of the peace, and with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. The life of the said order is coterminous with the passing of a decree by a Civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court.

The decision of the Board in Dinomoni Chowdhrani v. Broja Mohini Chowdhrani 29 I.A. 24 at p. 33, was relied upon by their Lordships of the Supreme Court.Reference may also be made to a Division Bench authority of the Patna High Court (Chief Justice Ramaswami and Kanhaiya Singh J.) in Mahabir Pandey Vs. Ram Narain Singh and Others, . It was held by the Division Bench that "the decision of the Magistrate in proceeding u/s 145, Criminal Procedure Code, in favour of the Defendant on the question of possession is not binding on the Civil Court dealing with a suit for declaration of title and possession. The Civil Court is entitled to come to different finding altogether." There seems to be no manner of doubt that the decision of the Criminal Court on this matter is not final and it is difficult, therefore, to take the decision of Abdul Rahman J. in Sewa Dass v. Ram Prakash AIR 1947 Lah. 173, to be correct. The contention of the learned Counsel for the Appellants cannot, therefore, be accepted with regard to the finality of the order passed by the Magistrate.

On the second question, it seems to me that the decision of the lower appellate Court is binding on this Court based as it is on the evidence of khasra girdawaris. The khasra girdawaris of the year 1957-58 show that the Respondents have been in cultivating possession of the land under the landlords. The rights of the Respondents are similar to those of a tenant under the Punjab Security of Land Tenures Act, 1953, Sub-section (6) of Section 2 of the Act says that a tenant includes a sub-tenant and it is also clear from the applications made by the Appellants themselves before the Assistant Collector that they treated the Respondents as tenants. In the Application under Clause (ii) of Section 14-A of the Punjab Security of Land Tenures Act, arrears of rent and in the alternative ejectment were asked for. This definite assertion of the relationship of a landlord and a tenant cannot be regarded as a gratuitous admission as contended for by the learned Counsel for the Appellants. The Respondents have been treated by the Appellant as tenants and arrears of rent had been asked for on this basis. It is not open now for the Appellants to say that the Respondents were not actually their tenants As stated by Lord Atkin in Lissenden C.A. v. Bosch, Ltd. A.I.R 1959 S. C. 960 , "where a person concerned has the choice of two rights, either of which he is at liberty to adopt, but not both, and if he adopts the one he cannot afterwards assert the other". The Appellants had made their election in treating the Respondents as tenants and it is no longer open to them to take up a position which is contrary to the one which they adopted earlier. The evidence is conclusive on the point that the Respondents are tenants and accepting the finding of the learned District Judge on this point, I would affirm the same.

In the result, this appeal must fail and is accordingly dismissed with costs.