P L D 1967 Dacca 715 (PLP)

This proceeding was instituted at the instance of the 1st party opposite‑party in this petition. I asked the learned Advocate for the opposite‑party to point out from the materials before me that exclusive possession was claimed by him. He failed to do so. The position therefore, is that neither the petitioner nor the opposite‑party claims or, can have exclusive possession. That being so, a proceeding under section 145 is misconceived and the impugned order must be set aside. The view expressed above finds support in a Division Bench decision of the Calcutta High Court consisting of Prinsep and Setanley, JJ., in the case of Tarujan Bibee v. Asamuddi Bepari and others (4 C W N 426). In that case the learned Judges observed as follows:‑ "In this case the Magistrate seems to have found that both parties are in possession, and therefore this was not a case in which he was competent to make an order under section

145. Section 145 seems to contemplate a dispute between two parties each of which claims to hold possession as against the other. The last part of the order is moreover manifestly bad but inasmuch as the first part has also been declared to be bad, the whole of the order is set aside." To the same effect is the decision in the case of Krista Alhadini Dasi v. Radha Syam Panday and another (7 C W N 118). In that case a Division Bench of the Calcutta High Court consisting of Stevens and Mitra, JJ., expressed agreement with the decision in the case of Tarujan Bibee just referred to above. This question also came up for consideration before another Division Bench of the Calcutta High Court, consisting of Brett and Gupta, JJ., in the case of Makhan Lai Roy and another v. Barada Kanta Roy (11 C W N 512). In that case the learned Judges observed as follows:‑ "The land on which the huts stand being in joint possession of the two disputants and there having been no real partition of the homestead land though there has been apparently an attempt to partition it by arbitration, it cannot be said that the dispute is by two opposing parties having adverse rights to exclusive possession of the land. The dispute is between two parties having joint rights to the land in dispute each of which is claiming exclusive possession. This is not in our opinion, a matter which could be determined under section 145." In the case of Sham Lai Mahlon and others v. Rajendra Lai and others (21 Cr. L J 790) Admi, J. of the Patna High Court held that in a proceeding under section 145 of the Criminal Procedure Code, the dispute must be between parties, each of whom would claim exclusive possession of the property in dispute, and where the'' dispute was between parties, one of whom claimed joint possession of the property in dispute, proceedings could not drawn under section

145. In the case before me, the petitioner submits that he is in joint possession with the opposite‑party. The opposite‑party also does not deny that the property in question is the subject matter of a partnership business which must involve joint ownership and possession. That being so, the principles laid down in the cases referred to above, apply to the case before me. Learned Advocates for both the parties however, have rightly submitted that it is open to the Magistrate to draw up proceeding under section 144, if it is necessary for the preservation of peace, pending adjudication of the rights of the parties in a properly constituted suit before an appropriate Court. For the reasons stated above, the Rule is made absolute and the impugned order drawing up proceeding under section 145 and appointing a Receiver is set aside. The magistrate will discharge the Receiver subject to his filing the account and passing of the same. K. B. A. Rule made absolute.