MATHURA PRASAD SINGH v. RAMAKANT MISSIR — 1971 DIGILAW 123 (PAT)

JUDGMENT : B. D Singh J. This application under Sections 435 and 439 of the Code of Criminal Procedure, hereinafter referred to as 'the Code' has been preferred by five petitioners against the preliminary ORDER :dated the 16th April, 1971, passed by the Sub-divisional Magistrate, converting a proceeding under Section 144 into one under Section 145 of the Code. 2. In ORDER :to appreciate the point urged by counsel of the parties it will be necessary to state briefly the facts. The petitioners and opposite party nos. 15 to 17 are members of the second party; whereas opposite party no. 1 to 14 are members of the first party in the said proceeding. The proceeding relates to a piece of land measuring 4 bighas 7 kathas and 9 dhurs bearing various plot numbers detailed in paragraph one of the revision petition filed in this Court situate in village Chamua, P. S. Sikarpur in the district of Champaran. At one time the said land was kasht land of one Jang Bahadur Singh, grand-father of petitioners 1 to 4. In the old revisional survey some hundadars got this land recorded as occupancy raiyats. Therefore Jang Bahadur Singh filed Title Suit No.2493 of 1917 against Dev Dutta Tewari and others for declaration of his occupancy right and also for declaring that the khatian entry was incorrect. On the 10th August, 1918, the said suit was decreed in favour of Jang Bahadur Singh and it was declared, as prayed by him that the defendants were merely hundadars and the survey entry was incorrect. According to the petitioners, therefore the hundadars gave up possession and Jang Bahadur continued in possession over the land. On 9th February, 1921, Jang Bahadur executed a registered usufructuary mortgage deed in favour of Mr. Bion, proprietor of Indigo Factory, Chanpatia, for a consideration of Rs 2500/-. Mr. Bion remained in possession thereof till 1943.On the 22nd February, 1943, he executed a deed of assignment of his right as mortgagee in respect of the mortgaged land in favour of Sukha Devi, W/o Ajodhya Prasad Gupta of Chapra. The family of Ajodhya Prasad Gupta continued in possession of the land till 1956, when one Ramchandra Upadhya of village Chamua purchased the rights of Ajodhya's wife in his own name and his relations. The family of Ajodhya Prasad Gupta continued in possession of the land till 1956, when one Ramchandra Upadhya of village Chamua purchased the rights of Ajodhya's wife in his own name and his relations. In 1959 petitioners 1 to 4 filed Title Suit No. 113 of 1959 in the Court of the Subordinate Judge, Motihari, impleading Ramchandra Upadhya, his family members and others as defendants. The suit was U decreed on the 9th June, 1962. The Court held that the mortgage subsisted i.e. the relationship of the m mortgagor and the mortgagee continued and therefore it decreed the suit of redemption in favour of petitioners 1 to 4. As against that the mortgagees, namely, Ramchandra Upadhya and his family members preferred title appeal no. 93 of 1962, which was also dismissed by the JUDGMENT : dated the 10th September, 1964. Thereafter they preferred second appeal no. 750 of 1964 in this Court which was also dismissed on the 18th April, 1966. During the pendency of the second appeal the petitioners, who were decree-holders, applied for execution of the decree in Execution Case No. 81 of 1964, in which they prayed for delivery of possession. The JUDGMENT :-debtors filed an application in the second appeal for stay of delivery of possession, wherein they stated that they had grown sugarcane on the disputed land. This Court by ORDER :dated the 6th January, 1965, directed that the proceedings in the execution case would be stayed on the condition that the JUDGMENT :-debtors would deposit a sum of Rs. 6000/- as cash security, which would be withdrawn after dismissal of the second appeal by the petitioners. The second appeal was dismissed on the 18th April, 1966. The petitioners withdrew the said amount and thereafter on the 2nd July, 1966 delivery of possession was given to the petitioners through court. On delivery of possession Rupnath Missir, brother of Ramakant Missir (opposite party no. 1) Suresh Pandey brother of Dharamnath Pandey (opposite party no. 5), Pujan Tewari, opposite party no. 9 and Kedar Raut, opposite party no. 12, were the witnesses. During the pendency of the mortgage suit the mortgagees had not paid rent. Therefore, the State of Bihar initiated certificate proceedings against the petitioners and the mortgagees. The petitioners approached the Circle Officers and wanted to clear all the dues. 5), Pujan Tewari, opposite party no. 9 and Kedar Raut, opposite party no. 12, were the witnesses. During the pendency of the mortgage suit the mortgagees had not paid rent. Therefore, the State of Bihar initiated certificate proceedings against the petitioners and the mortgagees. The petitioners approached the Circle Officers and wanted to clear all the dues. An enquiry was held by the Block Development Officer on the spot and he found the petitioners to be in possession. Hence, the petitioners were al10wed to deposit the entire rent which was accepted in the said certificate proceeding by ORDER :dated the 29th December, 1970. The further case of the petitioners is that the disputed land is allotted to Harinagar Sugar Mills Ltd. for supply of sugarcane. The petitioners supplied sugarcane, which was grown on the disputed land to the mill, and their names were also recorded in the mill register. On the 3rd December, 1970, the petitioners filed a petition before' the Sub-divisional Magistrate that action should he taken against some members of the opposite party and the mortgagees as they were offering threats to the petitioners. The Sub-divisional Magistrate directed the police to enquire and report. The police reported on the 12th December, 1970 against eight persons, namely, opposite party nos. 1 to 4, Ramchandra Upadhya, Baliram Tarkeshar Upadhya and recommended that a proceeding under Section 107 of the Code should be initiated against them and they should be bound under Section 117(3) of the Code. Accordingly, the Sub-divisional Magistrate initiated a proceeding under Section 107 against them which is still pending with regard to the same subject matter of dispute before the same Magistrate, who has passed the impugned ORDER :. Subsequently, on the 6th February, 1971, Chaukidar Raghunath -Ahir of the village went to the police station and reported that opposite party nos. 1 to 4, Tarkeshwar, Ramchandra, Baliram and others were creating trouble. The Sub-Inspector reported on the 7th February, 1971, that a proceeding under Section 144 should be drawn up against both the parties. The Inspector also visited and reported on the 16th February, 1971, for drawing up such a proceeding but he excluded the names of some of the JUDGMENT :-debtors. The Sub-divisional Magistrate accordingly drew up the proceedings against both the parties. After notice was served on the parties they showed cause and filed documents. 3. The Inspector also visited and reported on the 16th February, 1971, for drawing up such a proceeding but he excluded the names of some of the JUDGMENT :-debtors. The Sub-divisional Magistrate accordingly drew up the proceedings against both the parties. After notice was served on the parties they showed cause and filed documents. 3. The case of the opposite party was that they were in- possession over the disputed land as hundadars. The Sub-divisional Magistrate by the impugned ORDER :converted the proceeding under Section 144 into one under Section 145 of the Code. 4. Mr. Thakur Prasad, learned counsel appearing on behalf of the petitioners, has assailed the ORDER :on the ground that the Sub-divisional Magistrate, on the facts and in the circumstances of the case has erred in converting the proceeding under Section 144 into one under Section 145 of the Code. According to him, there was ample evidence on the record to establish the possession of the petitioners over the disputed land. They had in their favour recent delivery of possession given by the civil courts, whereas no paper was filed on behalf of the opposite party to establish their possession. The opposite party were unlawfully disturbing the peaceful possession of the petitioners. They ought to have been bound down in a proceeding under Section 107 of the Code, and in fact for the same subject matter a proceeding is pending before the same Sub-divisional Magistrate and in that view of the matter he urged it was not necessary to draw a fresh proceeding under Section 145 of the Code. He submitted that since the Sub-divisional Magistrate has not exercised his discretion judiciously, this Court has ample jurisdiction to quash the impugned ORDER :. 5. On the other hand, Mr. Jai Narain, learned counsel appearing on behalf of opposite party nos. 1 to 14, supporting the impugned ORDER :, submitted that Section 145(1) of the Code requires the Magistrate to be satisfied before initiating the proceeding that a dispute regarding immovable property exists and that such dispute is likely to cause breach of the peace. Once he is satisfied of these two conditions, the section requires him to pass preliminary ORDER :under Sub-section (1) of Section 145. In the instant case, he urged that the Magistrate was fully satisfied of those two conditions. Once he is satisfied of these two conditions, the section requires him to pass preliminary ORDER :under Sub-section (1) of Section 145. In the instant case, he urged that the Magistrate was fully satisfied of those two conditions. The High Court in exercise of its revisional jurisdiction would not go into the question of sufficiency of the material which has satisfied the Magistrate. He contended that since this was a land in dispute, the Magistrate has rightly converted it from one under Section 144 to one under Section 145 of the Code and he has, therefore, committed no irregularity. 6. On the contentions of the learned counsel for the parties two main questions arise for consideration in this application, viz, (i) whether this Court can interfere in its revisional jurisdiction against the preliminary ORDER :passed by the Magistrate under Section 145(1) of the Code and (ii) whether on the facts and the circumstances of the case the Magistrate has exercised his discretion judiciously in converting the proceeding under Section 144 into one under Section 145 of the Code? 7. I will deal with the question no. (1) first. Learned counsel for the opposite party relied on (1) R. H. Bhutani V. Miss Mani J. Desai A.I.R 1968 Supreme Court 1444) where their Lordships while dealing with the provisions contained under Sections 145 and 439 of the Code observed that the object of Section 145 is no doubt to prevent breach of the peace and for that end to provide a speedy remedy by bringing the parties before the Court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent court. The Section requires that the Magistrate must be satisfied before initiating proceedings that a dispute regarding an immovable property exists, and that such dispute is likely to cause breach of peace. But once he is satisfied of these two conditions, the section requires him to pass a preliminary ORDER :under Subsection (i) and thereafter to make an enquiry under Sub-section (4) and pass a final ORDER :under Sud-section (6). Their Lordships further held that the satisfaction under Sub-section (i) is of the Magistrate. But once he is satisfied of these two conditions, the section requires him to pass a preliminary ORDER :under Subsection (i) and thereafter to make an enquiry under Sub-section (4) and pass a final ORDER :under Sud-section (6). Their Lordships further held that the satisfaction under Sub-section (i) is of the Magistrate. The question whether on material before him, he should initiate proceedings or not is, therefore, in his discretion which no doubt, has to be exercised in accordance with the well recognized rules of law in that behalf. No hard and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction. The High Court in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate. In my view, their Lordships had not laid down a general principle. It depends upon the facts and circumstances of each case. It may be noticed that in paragraph 9 of the JUDGMENT : their Lordships have made it clear that the discretion the Magistrate has to exercise in accordance with the well recognised rules of hw in that behalf. From the above observation it is clear, therefore, that if .the Magistrate has not exercised his discretion on the well recognised rules of law this Court can interfere in its revisional jurisdiction. Besides if the dispute raised by the opposite party is not bona fide, the initiation of the proceeding under Section 145 (1) of the Code is not valid. In that eventuality also this Court has ample jurisdiction to quash the proceeding under Section 145 (1) of the Code. In (2) Mahendra Bhagat V. Bacha Pandey (1959 Patna Law Reports 21) Kamala Sahai and Untwalia, JJ. had quashed the preliminary ORDER :passed by the Magistrate under Section 145(1) of the Code on the ground that the dispute raised by the opposite party was not bona fide and the other side was in possession over the disputed land on the basis of delivery of possession given by the civil court. Therefore, in appropriate cases this Court, in my opinion, has ample jurisdiction to interfere if the Magistrate has ignored the well established principle of law while exercising his discretion. 8. Now I advert to question no. (ii), which is the real question in issue in the case. Therefore, in appropriate cases this Court, in my opinion, has ample jurisdiction to interfere if the Magistrate has ignored the well established principle of law while exercising his discretion. 8. Now I advert to question no. (ii), which is the real question in issue in the case. Learned counsel for the petitioners submitted that the contesting opposite party had not raised a bonafide dispute in the case. They were not at all in possession of the disputed land nor they adduced evidence before the Magistrate during the proceeding under Section 144 of the Code to establish their possession, whereas on behalf of the petitioners various documents, including delivery of possession effected by the civil court and the records in the certificate proceedings, were produced; even then the Magistrate converted the proceeding under Section 144 into one under Section 145 of the Code. He submitted that there was enough material before the Magistrate to show that the petitioners were in possession and the claim of possession by the contesting opposite party was a mere pretence. He referred to the delivery of possession of the disputed land which was given to the petitioners under ORDER :21 Rule 35 read with Rule 95 of the Code of Civil Procedure. If any of the opposite party were in possession of the land as hundadars, their remedy was under ORDER :21 Rules 100 and 101. Rule 100 provides that where any person other than the JUDGMENT :-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property, or where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession, whereas Rule 101 provides that where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the JUDGMENT :-debtor, it shall direct that the applicant be put into possession of the property. In the instant case learned counsel urged that the delivery of possession was not symbolical but actually made to the petitioners, wherein some of the opposite parties had signed as witnesses, as mentioned earlier. In the instant case learned counsel urged that the delivery of possession was not symbolical but actually made to the petitioners, wherein some of the opposite parties had signed as witnesses, as mentioned earlier. Instead of raising objection under Rules 100 and 101 of the Code of Civil Procedure, referred to above, they have clearly accepted the possession of the petitioners and now they were making false pretence of possession. In such case the provision under Section 145 (1) of the Code is not attracted. 9. In ORDER :to substantiate his contention he relied on a Full Bench decision of this Court in (3) Shebalak Singh V. Kamruddin Mandal (A. I. R. 1922 Patna 435) where it was held that where it is clear upon the materials before the Magistrate that one party is in possession and another, whose claim to possession is a mere pretence, is threatening 10 interfere with that possession, the proper remedy is an ORDER :under Section 144 or 107 of the Code. He also relied on (4) Mahabir Singh V. Emperor (A. I. R. 1934 Patna 565) where Md. Noor and Luby, JJ. observed that it is the duty of the criminal court to respect, maintain and preserve possession given by the civil court. It is the duty of the criminal court to give all the help provided by law to the man who has been put in possession of the property by the civil court. Further reference was made to (5) Kameshwar Singh V. Ramdahin Tewari (A. I. R. 1954 Patna 124) where C. P. Sinha, J. after reviewing various authorities cited before him on Sections 144, 145, and 107 of the Code, pointed out at pages 125 and 126 the circumstances under which the Magistrate is entitled to take recourse under those Sections. It will be instructive to quote his Lordship's observation below: "In my JUDGMENT :, the following propositions of law appear to be established : 1. That in a dispute relating to land, the proper procedure is to start a proceeding under Section 145 Criminal Procedure Code. 2. that though there may be dispute relating to land, the jurisdiction of the Magistrate to start a proceeding under Section 107 is not ousted; 3. that if the dispute relates to land and if the Magistrate starts a proceeding under Section 107, that proceeding should be started against both the parties; and 4. 2. that though there may be dispute relating to land, the jurisdiction of the Magistrate to start a proceeding under Section 107 is not ousted; 3. that if the dispute relates to land and if the Magistrate starts a proceeding under Section 107, that proceeding should be started against both the parties; and 4. that in case the Magistrate is of the opinion that the claim of one of the parties to the proceeding is a mere pretence and that in fact there is no dispute 'bona fide' or otherwise, a proceeding under Section 107, could be started against that party.” His Lordship also relied on (3) A.I.R. 1922 Patna 4-35 (Supra) in paragraph 7 of the JUDGMENT :. 10. Mr. Jai Narain, learned counsel for the opposite party, on the other hand, referred to an extract from the ORDER :sheet of the Court of Munsif of Motihari dated the 10th August, 1918, in Title Suit No. 2493 of 1917 wherein Jang Bahadur was the plaintiff and Deota Tewari and others were the defendants. In the said ORDER :it is mentioned that the suit was decreed ex-parte with costs the relevant portion of which reads as :-- “........ The suit is therefore, decreed ex parte with costs It is declared that the disputed land is occupancy kasht land of plaintiff and that defendants hold it on hunda rent as sub-tenant of the plaintiff. The survey entry is legally declared to be incorrect." On that basis he urged that same position continues with regard to the contesting opposite party. That position is not altered or modified in any subsequent proceeding. The contesting opposite party are still in possession of the disputed land in the capacity of sub-tenant or hundadars. He contended that when some of the opposite parties had signed the aforesaid delivery of possession as witnesses, they had not forgone their right as sub-tenant or hundadars with regard to the disputed land. In my view, the contention of learned counsel cannot be accepted, as in the delivery of possession it is clearly mentioned that physical possession of the disputed land was given to the petitioners. That cannot be read that possession given to the petitioners was subject to the possession of the contesting opposite party. In my view, the contention of learned counsel cannot be accepted, as in the delivery of possession it is clearly mentioned that physical possession of the disputed land was given to the petitioners. That cannot be read that possession given to the petitioners was subject to the possession of the contesting opposite party. Besides even assuming that they were in possession as sub-tenant, the contesting opposite parties have failed to produce any rent receipts or paper to show their possession over the disputed land. I also gave an opportunity to the counsel of the opposite party to produce any such paper to establish that they had bona fide dispute but nothing was produced before me nor has been pointed out from the records of the case any such paper showing the actual possession of the opposite party as sub-tenant or hundadars. 11. Learned counsel then urged that the cases relied upon on behalf of the petitioners related only to those cases where there was recent delivery of possession given by a civil court but in the instant case delivery of possession was given in the year 1966, which cannot be called a recent delivery of possession. He pointed out that in (3) A. I. R 1942 Patna 435 (Supra) their Lordships were dealing with a preliminary ORDER :passed under Section 144 of the Code. In that connection their Lordships deprecated the habitual and unjustified use of Section 144 as a substitute for Section 107 or Section 145 of the Code. In the instant case since the land dispute was raised by the opposite party, he urged, there was legal obligation cast upon the Magistrate to take recourse to Section 145 of the Code. Referring to (5) A.I.R. 1954 Patna 124 (Supra) learned counsel urged that only in those cases where the Magistrate is satisfied that the case of the opposite party is a mere pretence and in fact there is no dispute bona fide or otherwise, a proceeding under Section 145 of the Code is bad. Clearly it is the satisfaction or the opinion of the Magistrate which matters. In this case, in my view, this contention of the learned counsel has already been answered while I was dealing with question no. Clearly it is the satisfaction or the opinion of the Magistrate which matters. In this case, in my view, this contention of the learned counsel has already been answered while I was dealing with question no. (i), The High Court will certainly examine materials in ORDER :to find out whether he has exercised his discretion judiciously and whether there was enough material to form such an opinion. As regards (4) A.I.R 1934 Patna 565 (Supra) he submitted that in that case delivery of possession was less than 60 days prior to the initiation of the proceeding The facts in that case were quite distinguishable to those of the instant case. In that case, the accused party were forbiddo1 from going near the land sold, and the police were ORDER :ed to arrest Ma1u Singh and his men if they did so. The Sub-divisional Officer had contemplated a proceeding under Section 107 of the Code but withheld it for the time being. In the meantime there was a case against the accused party for assaulting Barho Babu's men and removing some rabi crop. The case ended in acquittal. The accused in that case, however, did not claim possession over the disputed lands; rather they admitted the possession of Barho Babu. Learned counsel urged that these facts were enough to distinguish that case from the present one. In my opinion, that may be so but their Lordships were pointing out the duty of the criminal court to respect, maintain and preserve possession given by the civil court. 12. Learned counsel then urged that none of the contesting opposite parties were party to Title Suit No. 113 of 1959 or Title Appeal No. 93 of 1962 or Second Appeal No.7 50 of 1964, referred to above, and, therefore, it was not binding on them nor the delivery of possession made had affected the case of the opposite party. In that view he urged that the learned Magistrate has rightly converted the proceeding under Section 144 to one under Section 145 of the Code. In that view he urged that the learned Magistrate has rightly converted the proceeding under Section 144 to one under Section 145 of the Code. In ORDER :to find support to his contention he relied on a Full Bench decision of the Calcutta High Court in (6) Agni Kumar Das V. Mantazaddin (A.I.R. 1928 Calcutta 610) where it was held per Full Bench that the words "actual possession" in Sub-section (1), Section 145, mean actual physical possession even though wrongful, e. g. that of a recent trespasser in actual physical possession at the time of the proceedings under Section 145 and the word "dispute" in the same sub-section means actual disagreement existing between the parties at the time of the proceedings under Section 145 even though the question as to the right to possession has already been decided by a civil court. Rankin, C. J. who had presided over the Full Bench, at pages 614-617 observed that he dissented altogether from the doctrine that the words "dispute likely to cause a breach of the peace" referred only to bonafide disputes or only to reasonable disputes. The first Sub-section of Section 145 is concerned with the maintenance of the public peace and with the reality of disputes, the danger of disputes. It matters little to a broken head whether it be broken in good faith or in bad and the Magistrate can have no preference. When he finds from a police report that he must take action, he can hardly be in a position to enter into such question. The section requires him to call for written statements and to enquire only as to the fact of actual possession. The nature of the claim to title may affect the question of facts to possession but he is expressly debarred from enquiring into the merits of the claims. It had been contended before their Lordships that he might and must enquire into the bonafides and the reasonableness of claims under Sub-section 5, but the Chief Justice observed that it was clear that this provision was made with no such object. The section is based upon the notion that whether a man has the best or the worst claim in the world he must not take the law into his own hald and so disturb the public peace. The section is based upon the notion that whether a man has the best or the worst claim in the world he must not take the law into his own hald and so disturb the public peace. Nor, on the other hand, the Chief Justice observed, the disputants with malafide or unreasonable claims are specially amenable to ORDER :s for security under Section 107. The Magistrate's discretion in such matters must be determined by the facts as a whole. In particular every thing depends upon the question which party is now in actual possession? To say that where the claim of one party is malafide or is unreasonable the Magistrate cannot act under Section 145 and should act under Section 107 is both bad advice and bad law. While a Magistrate acting under Section 145 is under no duty to enquire into the question of right there may be some rare cases in which both parties being out of possession the right of one party is so very clear as to make it more just and reasonable that he should act against the other under Section 107 than that he should attach the property so as to compel the former party to bring a suit. But there is great danger in inviting Magistrates to act upon their view as to the right of parties and jurisdiction under Section 145 or Section 146 cannot possibly be affected by any consideration of this character. Even in clear cases of this character the maintenance of the peace may make it wiser to attach under Section 146 than to ORDER :security under Section 107. The Chief Justice further dealing with ORDER :21 Rules 35, 95 and 97 of the Code of Civil Procedure observed that a decree holder or purchaser who is entitled to possession can get it and if the court's officer does nut give it, the court will make him give it if applied to at the time. Once he is put into possession and the officer has effected delivery the decree holder has had his remedy. For purposes of further litigation he has incidental advantages in that partly or wholly he has cleared his title in a way readily proved and is entitled to the benefit of the doctrine of res judicata. Once he is put into possession and the officer has effected delivery the decree holder has had his remedy. For purposes of further litigation he has incidental advantages in that partly or wholly he has cleared his title in a way readily proved and is entitled to the benefit of the doctrine of res judicata. But otherwise he is in no different position from that of a person who has come by the possession of the land by inheritance from his grandfather or by purchase at a private sale. The decree-holder like anyone else must maintain his own possession once he has obtained it. The law gives him the same assistance in this behalf as it gives to others and on the same terms in all material respects. It leaves to him the same liberty to part with his possession. Indeed he may be a decree holder as against A and a trespasser as against B. The duty of the Magistrate is to obtain possession and not to maintain the decree. The terms upon which the Magistrate is to maintain any man's possession are laid down in the Criminal Procedure Code, and in the Penal Code which have no separate law for decree holders as a class. It is the civil court's duty to give possession on the ground of right; it is the Magistrate's duty to maintain possession against force or show of force. The same consideration affords an answer to the cuntention that once the civil court has pronounced upon the right of one party as against another, there is no place fur an ORDER :under Section 145 which proceeds upon mere possession. If the party is out of possession and is attempting to retake possession at his own hand forcibly so as to disturb the public peace, the Chief Justice observed, it is strange why the Magistrate should not require him to assert his right in the proper way. He further held that a civil court by its decree can give possession. It does not attempt ill the same suit to keep the plaintiff in perfect peace because this is impracticable; new causes of action require a fresh consideration of the facts. The Magistrate is nut there to give a form of execution that the civil courts cannot give. He further held that a civil court by its decree can give possession. It does not attempt ill the same suit to keep the plaintiff in perfect peace because this is impracticable; new causes of action require a fresh consideration of the facts. The Magistrate is nut there to give a form of execution that the civil courts cannot give. His duty in substance is to maintain possession because the forcible disturbance of possession is contrary to the criminal law. 13. Mr. Jai Narain has strongly relied on the above observations in the Full Bench decision of the Calcutta High Court but, in my opinion, their Lordships have not laid down a blanket rule. It depends upon the facts of each case. It may be seen that it was also observed in that case that there may be some rare cases in which both parties being out of possession the right of one party is so very clear as to make it more just and reasonable that he should act against the other under Section 107 than that he should attach the property so as to compel former party to bring a suit. In the instant case, I have already mentioned earlier that the contesting opposite party have no evidence to establish their possession where as the petitioners have overwhelming evidence to prove both title as well as possession. The observations in the Full Bench decision of this Court in (3) A. I. R 1922 Patna 435 (Supra) are more appropriate in the instant case. 14. Learned counsel then referred to (7) Rajendra Narayan Bhanja Deo V. Chaudhuri Chintamani Mahapatra (A. I. R. 1939 Patna 151) where Md. Noor, J. while dealing with the provision contained in Sections 107 and 145 of the Code observed that a Magistrate in spite of delivery of possession by the civil court, has jurisdiction to start a case under Section 145. But no hard and fast rule can be laid down. A Magistrate has discretion when there is an apprehension of a breach of the peace to choose either Section 145 or Section 107. It must be left to his discretion which particular Section he chooses. But no hard and fast rule can be laid down. A Magistrate has discretion when there is an apprehension of a breach of the peace to choose either Section 145 or Section 107. It must be left to his discretion which particular Section he chooses. Generally speaking, if the dispute arises immediately after the delivery of possession by the civil court and is between the parties to that delivery of possession, the more appropriate step will be to bind down under Section 107 the party who has been dispossessed by the Court. But if the delivery of possession is all old one or the dispute is between a man who has been given possession and a man who was not dispossessed by the Court, a proceeding under Section 145 will be more suitable. On the basis of the above observations learned counsel submitted that in the present case the delivery of possession was old one and the dispute is not between the parties to that delivery of possession. The dispute in the instant case, he contended, is between the parties, who was given possession and a party who was not dispossessed by a court in the said delivery of possession. In my view, the above observation also is not applicable to the instant case as the facts of the present case are quite distinguishable from those of that case. It may be recalled that in the delivery of possession some of the parties have signed as witnesses and the delivery of possession to the petitioners was made under ORDER :21 Rules 35 and 95 of the Code of Civil Procedure whereas in that case there was only symbolical possession and not actual delivery of possession, as it will be evident from the observation made by his Lordship in that case. It was further held that where symbolical possession of the JUDGMENT : holder who afterwards finds that his possession is being interfered with by the JUDGMENT : debtor and initiates proceedings under Section 145 for retaining possession, the Magistrate cannot refuse to entertain the proceedings on the ground that the decree holder had not got actual possession from the civil court. 15. Learned counsel lastly relied on a Bench decision of this Court in (8) Sheonarayan Singh V. Bharath Singh (A. I. R. 1954 Patna 182) where Narayan and Ahmad, JJ. 15. Learned counsel lastly relied on a Bench decision of this Court in (8) Sheonarayan Singh V. Bharath Singh (A. I. R. 1954 Patna 182) where Narayan and Ahmad, JJ. observed that the question of possession that has to be determined in a proceeding under Section 145 is the question of actual possession with regard to the property in dispute. Actual possession certainly means actual physical possession, that is, the possession of the person who is cultivating the land or growing crops on it irrespective of whether he has any legal right to the land or the title to possess it. The words "actual possession" as used in Section 145(1) mean actual physical possession even though wrongful. In other words, a Magistrate has complete jurisdiction to interfere even if he finds that a recent trespasser is in actual possession at the time of drawing up proceedings under Section 145. What concerns the Magistrate is not the right to possess the subject matter of dispute but the actual possession thereof on the date when he makes the ORDER :under Sub-section (1) of Section 145. The view that once there has been a delivery of possession by the civil court the Magistrate has no jurisdiction to take action under Section 145 is no more sustainable. In spite of a recent delivery of possession, the jurisdiction of the Magistrate to interfere under Section 145 is not ousted but the Magistrate has to give due weight to the recent delivery of possession while disposing of the proceeding under Section 145. Their Lordships also relied on the decision in (6) A.I.R. 1928 Ca1cutta 610 (F. B.) ( supra). 16. In my view the answers to the contentions of the learned counsel are to be found in (2) Mahendra Bhagat's case (1959 P. L. R. 21) (supra) wherein the observation made in (8) A. I. R. 1954 Patna 182 was not followed as the facts in the two cases were distinguishable. In Mahendra Bhagat's case also the petitioners had come up before this Court against the preliminary ORDER :passed by the Magistrate under Section 145 of the Code. In that case also the delivery of possession was given to the petitioner s on the 18th August, 1954, whereas fresh proceeding was initiated sometime in June, 1956 under Section 145. In that case also the delivery of possession was not immediately before drawing up the fresh proceeding. In that case also the delivery of possession was given to the petitioner s on the 18th August, 1954, whereas fresh proceeding was initiated sometime in June, 1956 under Section 145. In that case also the delivery of possession was not immediately before drawing up the fresh proceeding. Their Lordships held in that case that the dispute raised by the opposite party was not bonafide and in that circumstance the Magistrate ought to have drawn up a proceeding under Section 107 against the persons, who attempted wrongfully to disturb the peace. Their Lordships distinguished (8) Sheonarayan's case (A.I.R 1954 Patna 182) in Paragraph 10 of their JUDGMENT : on three grounds; (i) the Subordinate Judge in that case left undecided the question as to whether the delivery of possession had in fact been made; (ii) the mortgagees were admittedly in possession in that case up to the date on which delivery of possession was made and (iii) some members of the opposite party in that case were not impleaded as parties in the title suit. It may be seen that on these grounds also Sheonarayan's case can be distinguished with the present case, wherein in the title suit, possession of the petitioners was not left undecided, the petitioners never admitted the possession of the opposite party; on the contrary, some of the opposite parties, as mentioned earlier had signed on the delivery of possession, as witnesses, by which actual physical possession was given to the petitioners. 17. After the consideration of the observations made in the various cases referred to above, and on the facts and circumstances of the case, in my opinion, the impugned ORDER :cannot be sustained. It may also be recalled that a proceeding under Section 107 of the Code is pending before the same Magistrate with regard to the same subject matter. The petitioners are the same. It is true that all the members of the opposite party of the instant proceeding are not represented in that proceeding as opposite party but that would not make much difference. It is open to the Magistrate to add such members also, as party to the preceding under Section 107, as he may think necessary. It is inadvisable that there should be multiplicity of the proceedings. 18. In the result, I allow the application, and quash impugned ORDER :dated the 19th April, 1971, passed by the Sub-divisional Magistrate. It is open to the Magistrate to add such members also, as party to the preceding under Section 107, as he may think necessary. It is inadvisable that there should be multiplicity of the proceedings. 18. In the result, I allow the application, and quash impugned ORDER :dated the 19th April, 1971, passed by the Sub-divisional Magistrate. Application allowed.