Sardar Singh v. State — 1967 DIGILAW 308 (ALL)

ORDER J.N. Takru, J. - This revision by Sardar Singh arises out of proceedings u/s 145 Code of Criminal Procedure. 2. The brief facts necessary for the appreciation of the point involved in it are not in dispute. It is common ground that the 52 plots which are the subject of dispute in the present case were granted by the Government, to four persons, including the Applicant, who was appointed their Mukhtar-e-am and karkun by the remaining co-grantees. Thereafter the Applicant, both for himself and as Mukhtar-e-am of his co-grantees entered into separate agreements with the opposite-parties in respect of these plots. The case for the Applicant is that the said agreements were Naukari namas, whereby the opposite parties were allowed to cultivate the said plots as the servants of the Applicant and his co-grantees; their remuneration being payable in kind. The; opposite parties cultivated the said plots as the servants of the Applicant and his co-grantees, but in the beginning of 1965 they turned dishonest and began asserting their ownership ever then with the result that there was grave apprehension of breach of peace. Accordingly on 28-2-1965 the Applicant made an application to the Circle Inspector, Haldwani, bringing those facts to his notice and praying for necessary action. Thereafter on 20-4-1965, the police submitted a report to the SDM Haldwani for necessary action in respect of those plots u/s 145 Code of Criminal Procedure, including their attachment. On this report the learned S.D.M. passed a preliminary order on 22-4-1965 and pending his decision attached the subject of dispute. By the same order he directed the parties to file their written statement, affidavits etc. as required under that section. 3. Both the parties filed a large number of affidavits and documents as regards their respective claims to actual possession of the subject of dispute. Briefly stated the case of the opposite-parties was (1) that they were in possession of those plots as bataidars and not as the servants of Applicants and the other co-grantees and (2) that as one of the co-grantees viz. Babu Ram; had executed a Mukhtarnama in respect of his one fourth share in favour of Ratan Singh, opposite party No. 5 the latter became a co-sharer with the Applicant and as such the proceedings u/s 145 Code of Criminal Procedure were misconceived against him. The learned S.D.M. did not give any finding on the second point. Babu Ram; had executed a Mukhtarnama in respect of his one fourth share in favour of Ratan Singh, opposite party No. 5 the latter became a co-sharer with the Applicant and as such the proceedings u/s 145 Code of Criminal Procedure were misconceived against him. The learned S.D.M. did not give any finding on the second point. He, however, held that under the agreements referred to above the opposite parties were in possession of the subject of dispute as bataidars and not as the servants of the Applicant and the other co-grantees and consequently, passed an order u/s 145(6) Code of Criminal Procedure in the former's favour. The Applicant went up in revision and the learned Sessions Judge by his order dated 5-8-1965, endorsed the view taken by the learned S.D.M. and dismissed the revision. 4. On behalf of the Applicant the only point urged in support of this revision was that, as on a correct interpretation of the Naukarinamas, the possession of the opposite parties was that of servants, i.e. of a permissvie nature, they had no locus standi to assert their possession as against their masters, u/s 145 Code of Criminal Procedure On behalf of the opposite parties Sri C.S. Saran, however, contended that as in Section 145 Code of Criminal Procedure proceedings all that the S.D.M. has to see is as to which party is in actual physical possession of the subject of dispute, on the date of the preliminary order or and within two months next prior thereto irrespective of the question whether that party had any right or title to its possession and as on the admitted case of the parties the opposite parties were in actual possession during the material period, the Applicant's case was liable to be rejected out of hand. After hearing the learned Counsel for the parties I am, however, of the opinion that the contention of the learned Counsel for the Applicant is well-founded and this revision must consequently succeed. 5. After hearing the learned Counsel for the parties I am, however, of the opinion that the contention of the learned Counsel for the Applicant is well-founded and this revision must consequently succeed. 5. Now the scope, extent and nature of the enquiry u/s 145 Code of Criminal Procedure are so well established by a long series of decisions that it is unnecessary to say anything mere regarding them except that under that section the party in 'actual possession' has always been understood to mean the party in 'physical possession', or what has been picturesquely described as the party who has his feet on the land as distinguished from a party who has only a 'right to possession'. Following this view, this Court in Nurul Hasan and Another Vs. Mt. Majidan, AIR 1944 All 210 held that even the possession of a trespasser is sufficient to justify an order in his favour provided he has been in possession for the requisite period and in Karnadhar Ray v. Sailendra Nath Ghosh ILR 1948 (1) Cal. 150 the Calcutta High Court held that even the possession of a tenant who denies that he is a tenant of his alleged landlord is sufficient to justify an order in his favour although he might have obtained possession originally by virtue of a settlement from his alleged landlord. But both these cases, as also the other cases on this subject whose number runs into legions, proceed upon the basis that the party claiming actual possession of the subject of dispute does so in the assertion of an independant right to possession and not on the basis of permission given to him by its owner. If the case falls under the latter category the actual physical possession of the person to whom the permission is given, such as servant or an agent, is in law deemed to be the possession of the master and no order in favour of such a person can be passed u/s 145 Code of Criminal Procedure even though he might have been in possession of the subject of dispute for more than 2 months next prior to the passing of the preliminary order; see Nritta Gopal Singh v. Chandi Charan Singh (1906) 10 CWN 1088 Thyalyee Ammal v. Srirangareya Goundan and another AIR 1923 Mad 60 AIR 1926 286 (Nagpur) Balak Das and Another Vs. Bhagwan Das @ Bhagwan Bhagat and Another, AIR 1960 Patna 60 and Bhonrulal v. Mst. Alladi ILR (1962) 12 Raj 660. On behalf of the opposite parties the only case cited before (sic) was that of AIR 1928 284 (Nagpur) but that case is distinguishable on facts and as such needs no mention here. Thus on the plain terms of the section and the authorities referred to above, which are all one way, it is clear that if the actual possession of the opposite parties is found to be that of servants of the Applicant and the other co grantees they have no locus standi to assert their possession against their masters u/s 145 Code of Criminal Procedure. 6. Apart from the language of the section and the authorities cited above I also feel fortified in my construction by the fact that on any other view, the said section would lead to most startling not to say intolerable results. Take for example the case of a master who goes away leaving his house in the charge of his servant for two months or more. In such a case if the servant were to turn hostile and to assert his possession against his master the latter would have no remedy against him u/s 145 CPC but would have to take recourse to the tardy, not to say the costlier remedy of a civil suit--a consequence which could not have been within the contemplation of the framers of the Code. I am, therefore, satisfied that the contention of Sri C.S. Saran cannot be accepted. 7. I shall now proceed to consider whether the interpretation put upon the agreements by the courts below is borne out by the language of these documents or not. So far as the plain language of those documents is concerned the learned SDM, with whose view the lower revisional court concurred, held that though they purported to be Naukarinamas, they were in fact documents of bataidari. This interpretation which is clearly opposed to the language and the tenor of the documents is based upon the sole ground that if the opposite-parties had really been the servants of the Applicants and his co-grantees then the latter would not have failed to give them implements of husbandry etc. This interpretation which is clearly opposed to the language and the tenor of the documents is based upon the sole ground that if the opposite-parties had really been the servants of the Applicants and his co-grantees then the latter would not have failed to give them implements of husbandry etc. It is worthy of note, however, that not only is there nothing on the record to show that such implements were not given to the opposite-parties, but there is a positive admission by them in the said documents that they had received such implements and were liable for their safe return on the termination of their Naukarinamas. Thus the only reason given by the learned SDM is no reason in the eye of law and the documents in question must be held to be Naukarinamas. 8. On behalf of the opposite-parties it was then contended that as the naukarinamas were only upto Jeth of 1964, the possession of the opposite-parties after Jeth 1964 ceased to be that of servants and became that of trespassers. I do not agree for the simple reason that their possession which was permissive in its inception, would not undergo any change until they asserted a hostile claim, to the knowledge of the Applicant and the co-grantees for a period of at least two months. The record of the case shows that the Applicant discovered, the foul intention of the opposite-parties for the first time in February 1965, whereupon he made the application dated the 28th February 1965 (PN 6/15) to the Circle Inspector, Haldwani. Thereafter followed by the report of the SO PS Haldwani dated the 20th April 1965 to the SDM concerned and the preliminary order of the latter dated the 22nd April 65. From the aforesaid chronology of events it is abundantly clear that the Applicant took prompt action and the hostile claim of the opposite-parties was challenged within two months next before the date of the preliminary order. Hence on this ground also the opposite parties cannot have any locus standi to assert their possession against the Applicant and his co-grantees. 9. Finally, the learned Counsel for the opposite-parties relied upon the recital in the Applicant's application darted the 28th February 1963 (Paper No. 6/15) to the effect that the opposite-parties were his bataidars. No doubt that application contains that admission, but since that admission is on a legal point viz. 9. Finally, the learned Counsel for the opposite-parties relied upon the recital in the Applicant's application darted the 28th February 1963 (Paper No. 6/15) to the effect that the opposite-parties were his bataidars. No doubt that application contains that admission, but since that admission is on a legal point viz. the correct interpretation of the agreements, it has no evidentiary value. It is obvious that it was made under some misapprehension regarding the correct legal status of the opposite-parties. I am, therefore, not prepared to attach any value to the same. 10. Thus for the reasons stated above, the orders of the courts below cannot be sustained. They are accordingly set aside and the revision is allowed. The revision having been allowed the stay order dated the 16th August 1965 stands discharged and the learned SDM is directed to issue an order in favour of the Applicant and his co-grantees u/s 145(6) Code of Criminal Procedure in respect of the plots in dispute and if necessary restore them in possession of the same.