1968 P Cr (PLP)

It appears from the letter of reference that the 1st party Mofizur ‑ Rahman Chowdhry claims title to and possession of the land on the basis of a Court sale but his claim has been seriously challenged by the opposite‑parties, Serajul Mostafa and others, who also claim title and possession of the disputed land on the basis of purchase from the original owner. The learned Judge has referred to the chequered history of the case in detail and for the purpose of determination of the points raised in the letter of reference it is not necessary for me to recount them. The learned Judge has stated that the order of the learned Magistrate in this proceeding under section 145 of the Code of Criminal Procedure to the effect that the posses sion is with the 2nd party, who are opposite‑parties before me in this Reference, has been arrived at without giving due consideration to the fact that symbolical possession was taken through Court. The letter of reference is further founded on the ground that the evidence of possession adduced by both the parties has not been properly considered. The learned Juge has also mentioned that there was murder over the dispute with re gard to this land and the Ist party was acquitted on a plea of right of private defence of property. I would now consider the question of symbolical possession obtained through court. In a proceeding under section 145 of the Criminal Procedure Code, the Court is concerned with actual possession as will appear from subsection (1) that written statements are to be called regarding actual possession. This view finds support in the case of Indramoni Devi. v. Raghuiath Bhanja Birabar Jagdev (1950 Cr. L J 674). In that case Ray, C. J. of the Orissa High Court held that possession within the meaning of section 145 is actual physical possession and not notional possession. A Special Bench of the Patna High Court consisting of Maredith; Sinha and Das, JJ in the case of S.M. Yaqub and others v. T. N. Basu and another (1949 Cr. L, J 50), took the same view. In that case it has been held that in a proceeding under section 145, the Magistrate is to see that statements of claim are confined to question of actual possession. . He must strictly follow the word ing of the section and make his decision without any reference to the merits of the respective claims to title. He is to decide only the question of actual possession upon the evidence as to actual possession; and in considering that evidence he must not let himself be biased one way or the other by his opinion on the question of title. He is not entitled to base his decision upon constructive possession. In the case of Agni Kumar Das v Mantazaddin (I L R 56 Cal. 290), a Full Bench of the Calcutta High Court, consisting of Rankin, C; J. Subrawardy, B.B. Ghose, Mukherji and Commiade, JJ. In that case it has been held that the words "actual possession" in sub section (1) of section 145, Cr. P.C. meant actual physical posses sion, even though wrongful, e.g., that of a recent trespasser in actual possession at the time of proceeding under section 145 but where dispute as to possession has been determined by a civil Court. In the letter of reference, however, a decision of this Court in the case of Afazuddin and another v. Munshi Sona Meah and others, (P L D 1967 Dacca 258) has been mentioned. In that case Murshed, C. J. in disposing of a civil revisional application, observed that in a court sale symbolical possession obtained by an auction purchaser, would amount to dispossession of the judgment‑debtor. Relying on this decision the learned Sessions Judge took the view that since symbolical possession was taken through Court by the 1st party petitioner, lie should be seemed to be in possession. In Afazuddin's case the Court had to consider a civil dispute. Afazuddin's case does not indicate that possession contemplated in section 145 of the Code of Criminal Procedure is symbolical possession. That case, therefore, has no application to a case under section 145 of the Code of Criminal Procedure. The authorities cited above will clearly indicate that in a proceeding under section 145 of the Code the learned Magistrate B is concerned with actual possession. The Magistrate's order therefore does not call for interference on this ground. The next point raised against the finding of the learned Magistrate is that he did not take into consideration that a plea of right of private defence taken by the accused petitioners was accepted by a Criminal Court. It is not stated in the letter of reference if the judgment of acquittal in the criminal case was filed as an exhibit in the proceeding under section 145 of the Criminal Procedure Code. A Magistrate has to decide the question of possession on the evidence adduced before him, documentary or oral, in the proceeding under section,

145. This point also, therefore, does not appear to me to be of sub stance. The next point on which the letter of reference is founded is that the oral evidence has not been properly considered by the learned Magistrate. The learned Judge has not given any indi cation in support of this point. On a perusal of the Judgment of tire learned Magistrate it appears to me that lie has referred to the salient features of the evidence led in the case. The learned Magistrate is in this case a court of fact anal neither the Sessions Judge nor this Court, should go into facts unless it can be shown that a finding of fact is based on no' evidence at as important point of evidence has not been taken into consideration. On a perusal of the judgment I find that the learned Magistrate has recorded necessary finding in the following terms "After careful consideration of the evidence on record both oral and documentary adduced by both sides, tire circum stances, admitted facts, natural probabilities and the fact of the case I hold that the 2nd party men have been in continuous physical possession of the case land since 1947 till the date of proceeding and they paid rent regularly. I further hold that 1st party member had no possession in the case land. As there is still apprehension of breach of peace, I declare and order that second party men shall remain in possession of the proceed ing land until evicted by competent court in due course of Law." on a perusal of the judgment of the learned Magistrate it seems to me that he has discussed the oral evidence as well as the documentary evidence adduced in the case. That being so the impugned judgment does not call for any interference. For the reasons stated above the reference is rejected and the impugned judgment and order of the Learned Magistrate are armed. Reference rejected.