Mohamad Noor, J.This is a reference by the Sessions Judge of Cuttack recommending that an order of a learned Magistrate of Cuttack u/s 145, Criminal P,C., declaring the first party of a proceeding under that Section to be in possession of the property in dispute, namely a stone quarry, be set aside.

2. The facts are that the Raja Bahadur of Kanika held a mortgage of two estates of the opposite party. He sued on that mortgage for sale of those estates and before a preliminary decree could be passed, the estate fell into arrears of Government revenue. The Raja Bahadur applied to the Court where the mortgage suit was pending for an order to put him in possession of the property under Order 39, Rule 9, Civil P.C., on the ground that on account of the default of the mortgagor in the payment of Government revenue the mortgaged properties were to be sold. The Court passed an order tinder that rule and a writ of delivery of possession of the properties in favour of the Baja was admittedly served on the locality from 16th October to 18th October 1936. It appears from the papers that the possession of the Kachari of the estate was also given to him, and that certain moveables which were lying there were taken away by the men of the first party. After this delivery of possession commenced the usual struggle of the judgment-debtor to retain the property in spite of the possession given by the Court, and I regret that the Magistrates acted in a manner which if left unnoticed will encourage defiance of the decrees of the Civil Court and paralyze the administration of justice.

3. The subject-matter of the present proceeding is a stone quarry situated in one of the two estates possession of which was given by the Court to the second party. In February 1937, the servant of the Raja Bahadur approached the Magistrate with a complaint that his possession of the quarry was being interfered with by the men of the first party who were ousted by the order of the Court. At that time certain proceeding was pending before the learned Subordinate Judge before whom the mortgage suit was being tried. The learned Magistrate thought that as the Raja Bahadur had complained to the Civil Court against the obstruction by the defendant of the suit (first party) who had also asked the Court to recall the delivery of possession the Criminal Courts were not called upon to interfere. He observed that the Baja had not been able to obtain actual possession. In my opinion the view taken by the learned Magistrate was not correct; though I can appreciate his remarks that the Criminal Court should not interfere at a time when questions about delivery of possession were pending before the Civil Court. Be that as it may, the learned Magistrate dismissed the complaint. The complainant then moved the learned Sessions Judge of Cuttack who dismissed the application. There are certain observations in his order, which, in my opinion, show-absolute misappreciation of the position of the delivery of possession by the Civili Court and as to what actual possession, means and I shall deal with it later.

4. The complainant however moved this, Court but did not press the application, which was rejected. Afterwards the present, proceeding has been started, and the first, party who was dispossessed by the Civil. Court has been found to be in possession. The learned Sessions Judge (successor off the learned Judge who dealt with the com. plaint) has recommended that the order o the learned Magistrate be set aside on the ground that in view of the order of the-Civil Court he had no jurisdiction to start a proceeding u/s 145, Criminal P.C. No doubt there are a number of decisions to this effect and there are also my own. observations in some cases that once there-has been a delivery of possession by the Civil Court the Magistrate has no jurisdiction to start a case u/s 145, Criminal) P.C.

5. This view however has not been accepted by the Full Bench of the Calcutta High Court in Agni Kumar Das Vs. Mantazaddin and Another, where the majority of the learned Judges held that; the Magistrate in spite of delivery of possession by the Civil Court, has jurisdiction to start a case u/s 145, Criminal P.C., and this view has been adopted in some; later decisions of this Court. In my opinion 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 u/s 107, Criminal P.C., 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 u/s 145, Criminal P.C., will be more suitable. Therefore I do not think that the ground of the want of jurisdiction which has been taken up by the learned Sessions Judge can be supported. But I think the order of the learned Magistrate cannot stand on a quite independent and stronger ground.

6. The learned Magistrate, in my opinion, has approached the case from a wrong point of view, and has committed an error which is not very uncommon of drawing a distinction between actual possession and symbolical possession, a distinction without difference when the question arises between the parties to the delivery of possession and which distinction has absolutely no place in the Code of Civil Procedure. Being of opinion that the delivery of possession to the second party was symbolical he expected him to prove that he got actual possession. Then having held that his actual possession was not proved and that the first party had collected some royalties, he declared him to be in possession.

7. Now the Code prescribes two kinds of delivery of possession according to the nature of the possession of the judgment-debtor. If the property is in his direct possession, the delivery of possession of it to the decree-holder or auction purchaser is to be under Order 21, Rule 35 or Order 21, Rule 95. If on the other hand, some tenants or other persons are in possession of the property on behalf of the judgment-debtor, and they are not liable to be dispossessed under the writ, the delivery of possession is to be under Order 21, Rule 36 and Rule 96. It will be noticed that the manner of the delivery of possession is according to the nature of the possession of the man who is to be dispossessed and not that its effect in law is different as against the judgment-debtor. But even if the property is in direct possession of the judgment-debtor the mode of delivery will naturally vary according to the nature of the property as mode of possession of different properties vary. If the property is in actual physical occupation of the judgment-debtor, for instance, if the property is a house and the judgment, debtor is residing in it he must be dispossessed of it by being bodily removed from it and by putting the decree-holder or auction-purchaser in physical occupation of it. But if the property is zamindari or a tank or mineral rights in direct possession of the judgment-debtor, though the delivery of possession will be by ousting the judgment-debtor from it, it is obvious that the judgment-debtor cannot be physically removed from it and the decree-holder on auction-purchaser put in physical occupation of it.

8. What the bailiff who is entrusted with giving possession can do is to go to the property and proclaim in the name of the Court that so and so has been dispossessed and so and so has been put in possession of it. This delivery of possession is not symbolical but actual and is as effective against the judgment-debtor as his physical removal from a house. Such a possession may be called formal in the sense that, there is no physical ousting of any individual but not symbolical. Even when the. delivery of possession is under Order 21, Rule 36 or Rule 96, i.e. when the property is in possession of some one on behalf of the judgment-debtor who is not liable to be dispossessed under the writ, the service of the writ effectively dispossesses the judgment-debtor and he cannot interfere with the man who has been given possession. I explained this at great length in the judgments which I gave in Ram Prasad Ojha and Others Vs. Bakshi Bindeshwari Prasad and Others, and Mahabir Singh and Others Vs. Emperor, .

9. Regarding third party, the matter stand on a different footing. If he is rightly or| wrongly physically removed from the property (that is, if he is dispossessed) and if he does not take proper remedy in time, he will lose his right. But if the delivery of possession is purely formal in the sense that nobody has been physically ousted but that, there has been a proclamation to that t effect, he, if actually in possession, cannot be said to have been dispossessed. The learned Magistrate committed the sama mistake which was committed by the learned Sessions Judge when rejecting the revision application of a servant of the Raja Bahadur whose complaint was dismissed. Ha had observed that the Raja Bahadur in spite of getting symbolical dakhal dahan did not succeed in getting actual possession. Such observation and making a distinction; of actual and symbolical delivery of possession as against a man whom a Court has ordered to be dispossessed has been, in my opinion, responsible for injustice in a number of cases. Some Courts having read the word symbolical possession in some decisions have used it without properly appreciating it. The Court gave the Raja actual possession and ousted the first party. The view taken by the learned Sessions Judge if analyzed comes to this. If a Court gives possession by proclamation the possession is symbolical. The Criminal Court will not help him till he by his own resources obtains actual possession. He must obtain actual possession by his own force (as I do not know how the Court can give actual possession of a zamindari except by proclamation).

10. If this view be accepted it will not be possible to maintain the administration of civil justice and a law abiding and peacefully living decree-holder who has got possession from the Court will be entirely at the mercy of his opponent, who believes more in the power of the sword than in the power of the pen. What is the remedy of a man who after having been given possession by the Courts peon, the nature of which I have dealt with, finds that his opponent relying upon his physical strength is obstructing him How can he retain possession He runs to the Criminal Court and asks for help in order to retain the possession. The Criminal Court says: "Well, I shall help you only if you obtain actual possession. Courts delivery of possession was symbolical. Go and obtain possession first, and then I will help you."

11. He finds that he is dispossessed. He goes to Civil Court again, gets a decree and again delivery of possession in the same form (as no other mode is possible in cases of zamindaries, etc.) and again the same thing will be repeated and the game will be played ad infinitum.

In this case the Court ordered the Raja Bahadur to be put in possession under Order 39, Rule 9. The order being against the first party, it must be taken to be as his effective dispossession as it is admitted that the writ was served. In these zamindari properties a man can only get formal possession by proclamation and afterwards it is for the Criminal Court to help him in retaining possession.

12. Now if, however, circumstances show that the decree-holder or auction-purchaser has slept over his right and has allowed the judgment-debtor to regain possession of the property and he is at the time of the proceeding in peaceful possession of it, the matter stands on a quite different footing. But in such cases the Magistrates must take it as an indisputable fact, once delivery of possession is proved, that on the day of the delivery of possession the party to whom possession was given was in possession as against the man who was party to that delivery of possession and was bound by the writ. He must start with the presumption that the state of things which existed on that day continued to exist thereafter unless the contrary is established. The judgment-debtor can only succeed if he establishes beyond doubt that he had completely ousted the man who was put in possession by the Court and was in peaceful possession of the property in dispute.

13. In this case it is impossible to hold on the finding of the learned Magistrate that the first party was able to completely oust the second party who was put in possession by the Court. The interval between the proceeding and the delivery of possession was about ten months. The whole of this time may be called a period of struggle for regaining possession by the first party. The second party cannot be expected to prove that after he was put in possession of a strange estate, he at once brought every inch of it under his control in the face of the usual opposition of the man who has been ousted and of those of his tenants who stick to him for some reason or other. The finding of the learned Magistrate is that in spite of delivery o possession the first party had been able to collect some royalty. Reliance is placed upon the fact that there was obstruction in February and March, and the Magistrate did not give help to the complainant who was a servant of the Raja Bahadur.

14. I think neither of these facts constitutes a complete ouster of possession given by the Court; and if these facts be allowed to prevail, no decree-holder or auction-purchaser will ever be able to remain in possession of the property given to him by the Court. There are very few cases in which there had not been a struggle by the man who has been ousted by the Court to retain the possession with the help of lathials or the tenantry who for reasons want to continue loyal to him. Spasmodic interference with the possession of a man does not constitute his dispossession. The circumstances under which the Criminal Court can go beyond the delivery of possession by the Civil Court are absolutely absent. I therefore set aside the order of the learned Magistrate, declare the second party to be in possession of the disputed property and forbid any interference of such possession till the order of a competent Court.