MATHURA SINGH v. 03R — 1971 DIGILAW 51 (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 Nos. 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 survey entry was incorrect. According to the petitioners. thereafter the hundadars gave up possession and Jang Bahadur continued in possession over the land. On 9th February 1921, Jang Bahadur executed a registered unsufructuary 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 Ahodhya Prasad Gupta of Chapra. The family of Ajodhya Prasad Gupta continued in possession of the land till 1956 when one Ram Chandra Upadhaya 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 Ram Chandra Upadhaya 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 Upadhaya his family members and others as defendants. The suit was decreed on the 9th June, 1962. The court held that the mortgage subsisted i.e. the relationship of the 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 Upadhaya 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 stayed 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. Thereafter the State of Bihar initiated certificate proceedings against the petitioners and the mortgagees. The petitioners approached the Circle Officer and wanted to clear all the dues. During the pendency of the mortgage suit the mortgagees had not paid rent. Thereafter the State of Bihar initiated certificate proceedings against the petitioners and the mortgagees. The petitioners approached the Circle Officer 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 allowed to deposit the entire rent which was accepted in the said certificate proceedings by order dated the 29th December 1970. The further case of the petitioner is that the disputed land is allotted to Harinagar Sugar Mills Ltd. for supply of sugarcane. The petitioners supplied sugarcance 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 petitioner before the Sub-divisional Magistrate that action should be 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 Tarkeshwar Upadhya and another 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 was 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 case of the opposite party was that they were in possession over the disputed land as hundadars. 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 parties 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 partly 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. 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. 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 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 circumstances of the case the Magistrate has exercised his discretion judiciously in cavorting 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 R. H. Bhutani v. Miss Mani J. Desai ( AIR 1968 SC 1444 ) = (1969 Cri.L.J. 13) where their Lordships while dealing with the provisions contained under Section 145 and 439 of the Code observed that the object of Section 145 is no doubt to prevent breach of the peace and for the 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 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 sub-section (i) and thereafter to make an enquiry under sub-section (4) and pass a final order under sub-section (6). Their Lordships further held that the satisfaction under sub-section (1) is of the Magistrate. The question whether on the 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 recognised rules of law in that behalf. Their Lordships further held that the satisfaction under sub-section (1) is of the Magistrate. The question whether on the 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 recognised 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 rule of law 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 Mahendra Bhagat v. Bacha Pandey (1959 Pat L.R. 21) Kamla 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 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 this case Learned Counsel for the petitioners submitted that the contesting opposite party had not raised a bona fide dispute in the case. 8. Now I advert to question no (ii) which is the real question in issue in this case Learned Counsel for the petitioners submitted that the contesting opposite party had not raised a bona fide 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 application 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 application 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. 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. 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 Shebalak Singh v. Kamruddin Mandal (AIR 1922 Pat. 435 = 23 Cri.L.J. 549) (FB) 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 to interfere with that possession the proper remedy is an order under Section 144 or 107 of the Code. He also relied on Mahabir Singh v. Emperor (AIR 1934 Pat 565) = (36 Cri.L.J. 146) 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 Kameshwar Singh v. Ramdahin Tewari ( AIR 1954 Pat. 124 ) = (1954 Cri.L.J. 190) where C. P. Sinha, J. after reviewing various authorities cited before him on Section 144, 145 and 107 of the Code pointed out as pates 125-126 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 proceedings under Section 145 Criminal P.C.; 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 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 AIR 1922 Pat. 435 = (23 Cri.L.J. 549) (FB) (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 Munsiff 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 subtenant 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 at 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 can not be called a recent delivery of possession. He pointed out that in AIR 1922 Pat 435 = (23 Cri.L.J. 549) (FB) (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 AIR 1954 Pat 12 = (1954 Cri.L.J. 190) (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. 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 AIR 1934 Pat 565 = (36 Cri.L.J. 146) (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 forbidden from going near the land sold and the police were ordered to arrest Malu 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 pointed 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. 750 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 Agni Kumar Das v. Mantazaddin, (AIR 1928 Cal 610 = (30 Cri.L.J. 69) (FB)), 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 bona fide 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 fact as 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 bona fides and the reasonableness of claim 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 hand 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 hand and so disturb the public peace. Nor on the other hand the Chief Justice observed the disputants with mala fide or unreasonable claims are specially amenable to orders 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 mala fide 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 bet it and if the Court's officer does not 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 any one 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 contention that once the Civil Court has pronounced upon the right of one party as against another, there is no place for 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 and 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 in 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 not 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 in 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 not 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 AIR 1922 Pat 435 = (23 Cri.L.J. 549) (FB) (supra) are more appropriate in the instant case. 14. Learned counsel then referred to Rajendra Narayan Bhanja Deo v. Choudhuri Chintamani Mahapatra (AIR 1939 Pat 151 = (40 Cri.L.J. 339) where Md. Noor, J. while dealing with the provision contained in Section 107 and 145 of Code observed that a Magistrate inspite 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 an 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 observations 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 Sheonarayan Singh v. Bharath Singh, ( AIR 1954 Pat 182 = (1954 Cri LJ 500)) where Narayan and Ahmed, JJ. 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 Sheonarayan Singh v. Bharath Singh, ( AIR 1954 Pat 182 = (1954 Cri LJ 500)) where Narayan and Ahmed, JJ. observed that the question of possession that has to be determined in 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 posses 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. Inspite 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 proceedings under Section 145. There Lordships also relied on the decision in AIR 1928 Cal 610 = (30 Cri.L.J. 69) (FB) (supra). 16. In my view the answers to the contentions of the learned counsel are to be found in Mahendra Bhagat's case (1959 Pat LR 21) (supra) wherein the observation made in AIR 1954 Pat 182 = (1954 Cri.L.J. 500) 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 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 petitioners on the 8th 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 bona fide 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 Sheonarayan's case. ( AIR 1954 Pat 182 = (1954 Cri.L.J. 500)) 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 proceeding under Section 107 as he may think necessary. 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 proceeding 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 the impugned order dated the 19th April, 1971, passed by the Sub-Divisional Magistrate. Application allowed.