ORDER The petitioner, Manohar Hiru Naik Parulekar, and the respondent No. 1. M/s. Agrawal Minerals (Goa) Pvt. Ltd., entered into an agreement dated 29-10-1969 for raising iron ore in a part of the mine "Guelliem Gaval" belonging to the petitioner. The agreement was for the period of 3 years from 1-11-1969 to 30-10-1972. A dispute arose between the petitioner and the respondent No. 1. As the dispute was likely to cause a breach of the peace, the Sub-Divisional Magistrate, Panaji, held proceedings under Section 145 of the Criminal Procedure Code and by his order dated 15-3-1971, decided that the respondent No. 1 was in possession of a part of the mine "Guelliem Gaval". He, therefore, declared that the respondent No. 1 was entitled to possession of the mine until he was evicted from it by due course of law and forbade all disturbance of such possession until such eviction. The petitioner went in revision to the Sessions Judge, who made over the case to the Additional Sessions Judge, sitting at Margao. The Additional Sessions Judge by his detailed judgment running over 28 pages delivered on 12-5-1971, not only dismissed the Revision Application, but went on further to uphold the order of the Sub-Divisional Magistrate. The Petitioner now comes before me in revision. 2. The case of the petitioner is that by the said agreement, he engaged the respondent No. 1 as an ore raising contractor to extract iron ore from the mine in question; that he had his own manager, two clerks and a watchman to look after the working of the mine; that the mine was in his possession and the respondent No. 1 was in the mine only as his worker; and that he was entitled to dismiss the respondent No. 1 from his service and stop his entry into the mine. 3. The case of the respondent No. 1 who was the only respondent the contested the petition, is that under the agreement of 29-10-1969, he was put in possession of the mine for the purpose of extracting ore for the period of 3 years ending on 30-10-1972; and that therefore the petitioner could not oust him from that possession unless by due process of law. 4. It is evident from the case the two parties that both of them claim to be in exclusive possession of the mine. 5. 4. It is evident from the case the two parties that both of them claim to be in exclusive possession of the mine. 5. Three points were raised by Shri Dias in the course of his arguments namely :- (i) that the dispute was not regarding land, but regarding contract; (ii) that the petitioner and not the respondent was in exclusive possession of the mine; and (iii) that assuming for argument's sake that the petitioner was not in exclusive possession, the possession of the mine was jointly held by the petitioner and the respondent No. 1. 6. The first point need not detain me for long. The jurisdiction of the Magistrate to issue an order under sub-section (1) and sub-section (4) was challenged before the Sessions Court and this Court. It was decided that the Magistrate did have jurisdiction to entertain the matter. Such decision was not possible unless the dispute was in regard to land and not regarding a contract. 7. Regarding the second point, namely, that the petitioner had the exclusive possession of the mine. I find that the evidence on record is sufficient to prove that it was not so. The contract itself affords evidence to show that the possession of the mine was given to the respondent No. 1 for the period from 1-11-1969 to 30-10-1972, for the purpose of extracting ore. Clause 5 of the agreement dated 29-10-1969 indicates that the contracts could not unilaterally be revoked for the period of 3 years. Under clause 11 the contractor was authorised by the mine owner to use the hutments existing in the mine and also to construct more, at his own cost, in case further accommodation was required for the labourers. There is on record a telegram dated 2-11-1970 sent by the petitioner wherein the petitioner states that the respondent No. 1 is not properly working "your (of the respondents No. 1) part of the mine" and requesting the respondent No. 1 to remove his men and machinery from the mine. There is in this telegram an implied admission that the mine in question had been in the hands of the respondent No. 1. and was being occupied by the men and machinery belonging to the respondent No. 1. There is in this telegram an implied admission that the mine in question had been in the hands of the respondent No. 1. and was being occupied by the men and machinery belonging to the respondent No. 1. On 1-11-1970 the petitioner wrote a letter to the respondent No. 1 stating inter alia that when the men of the petitioner on the mine noticed that there was an invasion by the respondent No. 1 into the remaining portions of the mine given by the respondent No. 1 to the respondent No. 2 & to one Zarapkar, the men of the petitioner ordered the person in charge of the mine, on behalf of the respondent No. 1, out of the invaded portion, but the men in charge, on behalf of the respondent No. 1, informed the representative of the petitioner that they had been asked by the respondent No. 1 to carry out the work in spite of the instructions to the contrary given by the petitioner. From the written statement filed by the petitioner, it is evident that the supervisor, the two surveyors and the watchman were in charge of the entire mining concession to supervise the work of all the contractors engaged by the petitioner. By his letter dated 22-10-1970 the petitioner wrote to the respondent No. 1 requesting him to see that the section of the mine which was being worked by the respondent No. 1 was maintained according to the rules and regulations. The petitioner further requested in the said letter that the top manager of the respondent No. 1 should be deputed to see that the mine is worked by keeping the faces levelled as required by the mining rules so that the petitioner should not receive adverse comments from the inspection team. 8. From this evidence on record, there can be no doubt that the finding of the learned Magistrate, that the respondent No. 1 was in possession of the mine at the time of dispute, was correct. 9. Examining the evidence of the petitioner. 8. From this evidence on record, there can be no doubt that the finding of the learned Magistrate, that the respondent No. 1 was in possession of the mine at the time of dispute, was correct. 9. Examining the evidence of the petitioner. I find from the contract dated 29-10-1969, from the admissions made by respondent No. 1 in his letter dated 7-11-1970, addressed to the petitioner, namely, that the representative of the petitioner would be always present on the mine and that day to day work would be properly regulated and supervised by him, that he had been working throughout in the right place with due knowledge and permission of the petitioner, that every day working was done under constant and careful supervision of the petitioner, that the representative of the respondent No. 1 never refused to obey the instructions given by the representative of the petitioner and that the work had been carried out by the respondent No. 1 according to the instructions of the petitioner; and also from the written statement of the petitioner, the affidavits of the petitioner's manager Kashelkar, the petitioner's supervisors, Chakraverthy and Chandrakant; that there is sufficient evidence to show that the petitioner was also in control and possession of the mine. I have to remark in this connection that the Learned Magistrate did not appear to have applied his mind to the evidence of the petitioner. 10. My conclusion is that the mine was not in possession of any one of the parties in dispute as required by sub-section (6) of Section 145 Criminal Procedure Code, but in possession of both. The petitioner had the possession and the general control of the mine whereas the respondent No. 1 had the possession of the mine for the purpose of working it. The learned Magistrate could pass an order under sub-section (6) only if he had decided that one of the parties was in possession of the mine, i.e., exclusive possession of the mine. It cannot be gainsaid that the respondent No. 1 cannot exclude the petitioner from entering in and being on the mine. In this view of the matter. I have to hold that the learned Magistrate acted without jurisdiction whilst passing his order. 11. It cannot be gainsaid that the respondent No. 1 cannot exclude the petitioner from entering in and being on the mine. In this view of the matter. I have to hold that the learned Magistrate acted without jurisdiction whilst passing his order. 11. I am, however, unable to agree with Shri Dias, the Learned Advocate for the petitioner, that the petitioner had a right to stop the respondent No. 1 from working in the mine. His contention that the respondent No. 1 was just a worker engaged by him and that as a worker he could be dismissed by the master cannot hold good, in view of the evidence on record. In the present case, there was a regular contract between the petitioner and the respondent No. 1 for extraction of ore and the petitioner has placed the respondent No. 1 in joint possession of the mine for that purpose. He cannot unilaterally terminate the agreement and ask the respondent No. 1 to remove his machinery from the mine and his men from the hutments lying on the site and occupied by the workers of the respondent No. 1. I am utterly unable to accept the contention of Shri Dias that the possession of the mine, was not given to the respondent No. 1 even for the purpose of working it and that the respondent No. 1 was engaged merely as a labourer. In any event, if the petitioner feels that he has a right to terminate the ore extraction contract, he has to go to the proper forum to assert his right and cannot resort to self help and throw the respondent No. 1 out of the mine, forcibly. I entirely agree with Shri Shinkre and the view taken by the learned Judges of the Patna High Court in the case reported at AIR 1060 Pat 54, on which Shri Shinkre relies, that even a servant can be in actual possession for the purpose of Section 144 and that he has to be evicted by due course of law. 12. In the circumstances, I hold that the Magistrate had no Jurisdiction to pass an order under Section 145(6). The petitioner is, therefore, entitled to succeed. ORDER The Revision Application is allowed. The order of the Sub-Divisional Magistrate, Panaji, dated 15-3-1971, is set aside. Revision allowed.