Authored By : Macpherson, Banerjee

Macpherson, J.

1. The matter in dispute in this case is the right tocollect a four-anna share of the rent of a property which is undivided, Each ofthe two contending parties asserts a proprietary title to the share inquestion, and claims to be in possession by collecting from the tenants therent payable in respect of it. The proprietors or the persons in possession ofthe remaining twelve-anna share are not parties to the case. The Magistrate hasfound that the first party is in possession, and has made an order underSection 145 of the Criminal Procedure Code maintaining him in possession.

2. It is contended that this is not a dispute concerningtangible Immovable property, and that Section 145 does not apply to the case.Also that the Magistrates decision rests really on his view of the rights ofthe parties.

3. It does not appear to be disputed that Har Bullabh NarainSingh is entitled to and in possession of an eight-anna share of the mouzahs inquestion, and assuming that the Thakura, the first party in the present case,are entitled to four annas of the remaining eight-annas under the decrees of1869 and 1892, it is by no means clear how the case stands as regards the otherfour annas. The second party claims a four-anna share by purchase from JhankiPrasad, who is said to be a brother-in-law of Lutchmi Prasad, in December 1894.Jhanki Prasad was a party to the suit of 1869, but not to the suit of 1892, andLutchmi Prasad was a party to the suit of 1892, but not to the suit of 1869.Lutchmi Prasad appears originally to have claimed an eight-anna share bypurchase from Lutchmi Narain many years ago, and Lutchmi Narain and his brotherKesat were the vendors of the Thakurs. It is very possible that the purchase ofthe second party from Jhanki Prasad in 1894 is set up to defeat the decreewhich the Thakurs obtained in 1892 against Lutchmi Prasad and Lutchmi Narain.But it is unnecessary to go into a history of the alleged rights of theparties, only some of whom are before us, as I am clearly of opinion thatSection 145 of the Code of Criminal Procedure cannot apply to this case. This Courthas held in Pramatha Bhoosun Deb Roy v. Durga Churn Bhattacharjec I.L.R. Cal.413, Sarbananda Basu Mozumdar v. Pran Sunker Roy Choiodry I.L.R. Cal. 527 andAbhayessuri Debi v. Shidhessuri Debi I.L.R. Cal. 513, that a dispute as to theright to collect rent is a dispute concerning tangible Immovable propertywithin the meaning of Section 145, but in all those cases the contendingparties claimed respectively to be in possession of the entire land which wasthe subject of dispute by collecting the entire rent payable therefore from thetenants who were in actual occupation. The land which was in dispute could bedefined by boundaries; the dispute in effect was as to that land, but theparties claimed, to be in possession, not by actual occupation, but bycollecting the rent from the occupiers. I know of no case in which it has beenheld that a right to collect a share of the rent of an undivided property is adispute concerning tangible Immovable property, and it is clear, I think, thatit cannot be held to be so.

4. To bring a case under Section 145, the property, which isthe subject of dispute, must be capable of being accurately defined, the wordsare tangible Immovable property or the boundaries thereof," and the wholescope and object of the section point to the same conclusion. The Magistrate,without reference to the rights of the parties, is to determine which party isin actual possession of the subject-matter of dispute, that is to say, thetangible Immovable property, and he is to maintain in possession the partyfound to be in such possession and forbid all. disturbance of possession untilhe is evicted in due course of law.

5. The dispute in the present case cannot be said to be adispute concerning land within the meaning of the section. Neither party claimsto be in possession of the whole of the land in respect of which the rent, ashare of which is in dispute, is payable, nor of any definite portion of it,and the possession of the tenants is only partially their possession. The land forwhich the whole rent is payable is not the subject of dispute, and the disputecannot be said to relate to any definite part of it.

6. Obviously also the application of Section 145 to a caselike this might give rise to considerable complication. All the personsinterested in the undivided property are not before the Court, and it would bedifficult to say, without at least going into the question of title, that theparties to the case are claiming the same four-anna share. To maintain them inpossession of that share would not also necessarily exclude the other or put anend to the dispute.

7. We must, therefore, hold that Section 145 does not applyto a case in which the dispute is as to the right to collect a share of therent of an undivided property, and on that ground set aside the ordermaintaining the first party in possession.

8. The only cases in point which we have been able to findare Ramrungmee Dossee, v. Gooroodoss Boy 18 W.R. 86 and (under Section 318 ofthe old Code) Beni Narain v. Acharj Nath I.L.R. All. 607. Both support the viewnow taken.

Banerjee, J.

9. I am of the same opinion. The petitioner, who was thesecond party in a proceeding under Section 145 of the Criminal Procedure Codein the Court below, asks us to set aside the order made under that section infavour of the first party, on the ground that the subject of dispute being theright to realize rent in respect of an undivided four-anna share of certainvillages, Section 145 of the Criminal Procedure Code was inapplicable to thecase. Certain other grounds were also urged before us, but it is unnecessary toconsider them, as our decision upon the ground mentioned above is sufficientfor the disposal of the case.

10. The subject of dispute is an undivided four-anna sharein two villages in the occupation of ryots, which the petitioner claims under apurchase from an alleged former proprietor, and the other side claims under adecree in a suit to which neither the second party nor his vendor was a party,each side asserting that he is in possession by receipt of rent in respect ofthe four-anna share. Now, no doubt, it has been held in several cases, and itmay now be taken as settled law, that a dispute as to the right to collectrents is a dispute concerning tangible Immovable property, and that possessionby receipt of rent is actual possession within the meaning of Section 145 ofthe Code of Criminal Procedure. See Pramatha Bhoosun Deb Roy v. Durga ChurnBhattacharjee IL.R. Cal. 413, Sarbananda Basu Mozunular v. Pran Sunkar RoyChowdhry I.L.R. Cal. 527, and Abhayessuri Debi v. Shidhessuri Debt I.L.R. Cal.513. But the dispute in those cases was with reference to the entire sixteenannas of the rent, each party claiming to be in possession of the land byreceipt of rent to the exclusion of his adversaries; and the question stillremains whether a dispute as to the right to realize rent in respect, not ofthe whole sixteen annas, but only of an undivided share of any tract of land,is a dispute concerning tangible Immovable property within the meaning ofSection 145. 1 do not think that the cases cited determine, or were meant todetermine, that question; and I am of opinion that, whether we look to theletter or to the spirit of Section 145, the question must be answered in the negative.

11. The section speaks of a dispute "concerning anytangible Immovable property or the boundaries thereof," thereby clearlyindicating that the tangible Immovable property contemplated by the section issuch as can have boundaries predicated of it, or, in other words, is such as isdefined by certain boundaries. But an undivided share in any land can have noboundaries. Nor will it do to say that a dispute as to the right to realizerent in respect of an undivided share in any land is a dispute as to the wholeof the land, which has defined boundaries and is tangible Immovable property,as that would make the entire sixteen annas interest in that land the subjectof dispute, which is contrary to the case supposed.

12. And if the letter of the law is opposed to thecontention of the other side its spirit is still more so. The object of Section145 of the Code of Criminal Procedure is to put a stop to disputes likely tocreate a breach of the peace concerning any tangible Immovable property, by retainingin possession the party who is found to be in possession at the date of theinstitution of the proceedings, and by forbidding all disturbance of suchpossession, that is by maintaining the possession of one of the contendingparties and keeping off the others. But no such order can be made in a casewhere the dispute relates only to an undivided share of some tangible Immovableproperty, and it may be, as very often is the case, that the contending partiesare each in undisputed possession of a certain other undivided share in thesame property. In the very case before us, the contention of the first partyduring the argument was that the ostensible second party on the record is onlya benamidar for Lutchmi Prasad, who is entitled to four annas but is unjustlytrying to take possession of another four annas belonging to the first party.In such cases, no order made under Section 145 can keep the party claiming ashare in excess of what he admittedly has, out of possession of the tangibleImmovable property, the only effect of the order being to regulate the mode inwhich the contending parties are to hold possession. That is a very differentthing, and evidently Section 145 does not contemplate the making of any suchorder. Again, the inefficacy of an order under Section 145 in such a case topreserve peace will be evident from another consideration. Supposing that anorder could be made under that section, declaring one or both of the parties tobe entitled to retain possession, that is, to realize rents to the extent ofcertain shares; if any of the ryots relinquish their holdings the order will bewholly inapplicable to the land relinquished, and will be ineffectual inpreventing dispute. A further difficulty would arise if the contention onbehalf of the first party be accepted. Suppose that each of two persons claimsto be in khas or direct possession of an undivided four-anna share in certaintangible Immovable property, a large garden for instance : the fact of theirclaiming to be in khas possession cannot make Section 145 less applicable-tothe case than it would have been if they had claimed to be in possession by,receipt of rent from the tenants holding portions of the garden. Suppose, also,that each of them admits the right and possession of his rival in a six-annashare. In such a case, if the Magistrate finds from the mode in which fruitshave been collected, and from other acts of possession, that one of the partiesis in possession of the four annas in dispute, and he makes an order retaininghim in possession of the same, can the order be of much real efficacy inpreventing disputes which must break out afresh every time that a tree has tobe planted or a tree or a branch dries up and is cut Or; if the Magistrate isunable to satisfy himself as to which party is in possession of the disputedfour-anna share, is he to attach the property under Section 146, and will suchattachment stop dispute or will it not be a fresh source of dispute No doubtthere may arise cases in which, though the dispute is with reference toundivided shares in Immovable property, the application of Section 145 may notbe without efficacy in preserving peace. Thus where the rival parties claim tobe in possession of a certain undivided share and do not hold any undisputedshare, and there is no dispute about the remaining share which is in thepossession of a third party, the effect of an order under Section 145 will beto exclude one of the contending parties altogether from the property, in thesame way as if each had claimed the entire sixteen annas. But though this maysometimes be so there cannot be one construction of the section for some casesand a different one for others.

13. The view I take of the law is fully supported by thedecision of this Court in Ramrunginee Dossee v. Gooroodoss Roy 18 W.R. 36 andby that of the Allahabad High Court in Beni Narain v. Acharj Nath I.L.R. All.607.

14. Babu Umakali Mookerji for the opposite side contendedthat if Section 145 of the Code of Criminal Procedure was inapplicable to thiscase, still the order made by the Court below might be supported as one madeunder Section 147. I think this contention is untenable for two reasons :First, because the point for enquiry under Section 147 is very different, beingthe existence of the right claimed and not the mere fact of possession as it isunder Section 145; and, secondly, because the right to possess an undividedshare in any tangible Immovable property does not come within the words"the right to do anything in or upon" any such property.

15. For these reasons I agree with my learned colleague inthinking that this rule ought to be made absolute and the order of the lowerCourt set aside.

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Surb Narain Singh vs.Birj Mohun Thakur (14.08.1895 - CALHC)