This petition is directed against the order of Ch. Muhammad Salim, Magistrate First Class, Okara, dated 18th of September 1971, whereby, he passed an order under section 145, Cr. P, C, directing the restoration of the possession of the disputed land to the complainant party who are respondents Nos. 2 and 3 before me.
2. The dispute relates to certain Khasra numbers situated in village Leshari, Tehsil. Okara in the District of Sahiwal. The petitioners, Sardar Ali alias Sardara, Muhammad Ali and Niaz sons of Baqir have been shown in the revenue record as the owners of this land. The respondents Muhammad Ali and Sardara sons of Allah Dad have been shown as tenants in possession cultivating the land in dispute through one Bahawal son of Jamal who has been mentioned in the Jamabandi of 1969 which is Exh. P. A. On this record as Dakhilkar Doem. It appears from the entries in columnNo. 8 that Muhammad Ali and Sardara shown in the column of tenants claim this land to be their own and do not pay any rent to the owners. Bahawal the Ghair Dakhildar Doem pays the Batai to Muhammad Ali and Sardara respondents. It further appears from the copy of the Khasra Girdawri Exh. P. B. That till 24th of October 1970, the respondents Muhammad Ali and Sardara were in possession of the disputed land through Bahgwal their sub---tenant.
3. There has been some litigation between the parties. The respondents before me filed Suit No. 250 of 1968 on 19th of July 1968, in the Court of Civil Judge, Pakpattan, for grant of a declar--ation to the effect that they were the owners in possession of the suit-land. They also asked for a mandatory injunction by way of consequential relief directing the Province of West Pakistan to correct the entries in the revenue record. The present petitioners were impleaded as defendants 2 to 4 in that plaint. The learned Civil Judge passed an interim order on 24th of July 1968, ordering that status quo be maintained in accordance with the entries in the, Jamabandi. This suit was withdrawn on 22nd of October 1970, with permission under Order XXIII, rule 1, C. P. C. To file a fresh Suit. A fresh Suit No. 340 was filed by Muhammad Ali and Sardar Ali sons of Allah Dad on 27th of October 1970, the respondents before me, for a declaration that they were owners in possession of the land in- dispute and that defendents 2 to 4 i.e. The petitioners before me, had been wrongly shown in the revenue papers as owners of the same land. They also asked for a perpetual injunction as a consequential relief for restraining the defendants from interfering in their possession. The learned Civil Judge, Okara, passed an interim injunction on 31st of October 1970, restraining the defend-- ants from interfering in the possession of the complainants till the next date which was 30th of November 1970. The plaintiffs on 3rd of December 1970, applied to the District Judge, Sahiwal, that since the Civil Judge at Okara had been, transferred and the period of the interim injunction had expired, it may be further extended to save the plaintiffs from irreparable loss The District Judge passed an order on 12th of December 1970, restraining the defendants from interfering in the possession of the plaintiffs till 7th of January 1971. On that date, the counsel for the plaintiffs submitted that the defendants had already taken possession of the land in dispute after the issuance of the interim injunction. The Court then modified its order on 7th of January 1971, while maintaining the status quo in other matters, it observed that the question as to when the defendants took possession of the land would be decided later on.
4. Before this order was passed, the respondents had moved a Magistrate under section 145, Cr. P.
C. On 22nd of December 1970, stating that the petitioners before me had taken possession of the land in spite of the existence of the stay order issued on 1st of October 1970, anti that the parties having already been proceed--ed against under section 107/151, Cr. P. C., there was a grave apprehension of breach of peace with regard to the possession of the land in dispute. The Magistrate passed a detailed order on the same day and issued notice to the parties to appear before him to submit written statements, The Magistrate passed the final order on 18th of September 1971, and ultimately came to the conclusion that the respondents before me were in possession of the suit land till 31st of October 1970 (which date was within the period of two months of passing the preliminary order) and were ousted there--after. He, also, ordered the restoration of the possession of the land in dispute to the complainant party.
5. A new circle of litigation started between the petitioners and Bahawal who was cultivating the land under the respondents. Bahawal presented an application before the Collector, Okara, complaining that the petitioners before me had forcibly dispossessed him from the disputed land and he sought an order for restor--ation of the same. The application was forwarded by the Collector-- the Tehsildar, Okara, for necessary action. The Naib-Tehsildar who dealt with this matter ordered on 28 of April 1971, that the possession be restored to Bahawal. The petitioners, thereafter filed Suit No. 336/71 on 4-5-1971 for a declaration that the order of the Naib-Tehsildar was against law and without jurisdiction sad ineffective as against their rights. They asked for prepared injunction restraining the Government, and Bahawal from dispossessing them and interfering in their possession. It was their case that Bahawal had willingly surrendered the possession of the disputed land to them. The Civil judge while considering the application for interim injunction found that the Naib-Tehsildar had no jurisdiction to pass, the impugned order and on this ground issued a temporary injunction in favour of the petitioners as against Bahawal, on 1st of July 1971.
6. Before proceeding with the points, raised before me, I may observe that this latter stay order does not bind the respondents before me in any way because they were not parties to the latter suit. This also does not, in any way, affect the proceedings under section 145, Cr. P. C. Started by them earlier than the institution of this suit.
7. Mr. M. S. Baqir, the learned counsel for the, petitioners raised two legal points. He said that the possession of a tenant was not the possession of a landlord within the meanings of section 145, Cr.th P. C. And since Bahawal was shown in possession of the disputed land in the revenue papers on behalf of the respondents, they had no locus standi to approach the Magistrate for an order of restoration of possession under section 145, Cr. P. C. He m this connection referred to Ranga Raju v.
Jagan Nath Rao (AIR 1938 Mad. 654). At the re-hearing of the case, Mr. Baqir also sought to derive support for this proposition of law from the case of Mahmood Beg and another v. Ehsan Beg (AIR 1941 Oudh 515.). In that case the dispute was between the heirs of one Ashraf Beg who was running a medicine shop in a rented promises. The applicants actually claiming to be the heirs of the deceased wanted the medicines to be delivered to them. This was resisted by Ehsan Beg who was the brother of the deceased and who had taken possession of the shop five days after the death of his brother. The Magistrate held that the provisions of sec--tion 145, Cr. P. C. Did not apply to the stock of medicines in the shop and the case was, therefore, dismissed on that ground. A revi--sion petition-was taken by the wife of the deceased and her brother, against this order of the Magistrate. An argument was raised in the High Court to the effect that Ehsan Beg the brother of the deceased claimed joint title with him and even though he may be in exclusive possession of .The shop, his possession should be considered on behalf of all the-heirs of the deceased. It was observed that so far, as section 145, Cr. P. C. Was concerned, the Magistrate acting there under was entitled to take notice only of exclusive actual physical possession and had nothing whatsoever to do with constructive possession or joint possession of the heirs. It would appear that the facts of the above case are clearly distinguishable and the dictum contained in this case does not apply to a case where a contestant is in possession through a servant or a tenant.
8. It is true that in the case cited .By Mr. Baqir it was observed that the Words "actual possession" in section 145, Cr. P. C. Mean actual physical possession, even though wrongful. It was further observed that where the possession is claimed by a party through its tenants, it cannot be said to be possession of the landlord within the meanings of section 145, Cr. P. C. In fact, this exposition of law was not agreed to by a learned Judge of the Madras High Court in P. V. Venugopal Mudaliar v.
P. V. Neelakanta Mudaliar and others (AIR 1945 Mad. 255). It was observed in this latter case that between rival landlords the rule that a person is in possession through a tenant shall apply.
Adverting to what was said in Ranga Raju's case the learned Judge observed as under:--- I know of no case in which a Court has gone so far as to hold that a declaration under section 145 cannot be given in favour of a landlord as against a rival landlord where his tenants were found to be in actual possession on the date when the preliminary order was passed. As between a landlord and Iris own tenants there is authority for the proposition that the rule that the possession of the tenant is the possession of the landlord does not apply."
Again it was said:- ---To the best of my knowledge it has been the practice of Courts in this Province in cases under section 145, Criminal P. C., to treat the possession of a tenant as the possession of the landlord and to give a declaration in favour of the landlord even though the tenant is not a party to the proceedings."
In J. D. Sutherland and another v. L. Crowdy ((1872) 18 W R 11) their Lordships dealt extensively with the connotation of possession as contem--plated in sections 288 and 318 of the then Code of 1861 which have been renumbered as sections 118 and 145 in the present Code. I may, with respect, quote the following passage from page 13 of the report:-- "The question is, what is to be considered as meant in this section by possession? I think that it cannot mean only actual or bodily possession. There may be cases in which a person would properly be said to be in possession, although there was no bodily possession by him. There is the case of a servant being in possession, and it may be said that when the servant is in possession it is the possession of the master. So also, if an occupier is, paying rent; that is the possession of the landlord to whom he pays the rent. For some purposes, the occupier has a possession; he has a possession which would enable him to bring a suit against a person who wrongfully disturbed him in his occupation; but still, his possession is the possession of him by whose permission, either given by a lease or any other mode of letting, he holds the land and to whom he pays the rent."
In The Empress v. Thacoor Dyal Singh and another (I L R 3 Cal. 320) it was held that the right of collecting rent is in fact actual possession within the meanings of section 530 (in the Code of 1872) which has now been renumbered as section 145, Cr. P. C. Again, it was held in --Bulkis Bivi and another v. Nagoor Kanni Rowther (AIR 1915 Mad. 1105) that even a dispute as to right to collect rents is a dispute within the meanings of section 145, Cr. P. C. In Narain Das v. The Empress (1884 P R 19) a Division Bench of the Punjab Chief Court held that where a person was exclusively in possession through tenants and was receiving rents from them, he was in actual possession of the land within the meanings of section 145, Cr. P. C. The preponderant judicial view is that the possession of a tenant is the possession of the landlord or any person having that status.
9. Now on the facts proved in this case, the respondents were claiming this property to be their own and according to the Khasra Girdawri till 24th of October 1970 Bahawal was culti--vating under them and paying Batai to them. They had, therefore, exclusive possession of the property in dispute up til 24th of October 1970 through Bahawal. The claim of the petitioners that they were in possession through Bahawal for a number of years is belied by the entries in the revenue record.
True that they are entered as owners but the respondents claim adverse possession and are not paying any rent to them.
10. The second contention of the learned counsel was that a civil Court having passed a stay order on 31st of October 1970, a Magistrate had no jurisdiction to deal with the matter: His assertion was that even when person armed with a decree or order of a Court regulating his possession with regard to a particular property, is sought to be disturbed by show of force or is threa--tened with breach of peace in order to disturb his possession, the Magistrate will not have any jurisdiction to interfere in the matter under section 145, Cr. P. C. He can only proceed under section 107/151, Cr. P. C.
Or if the person trying to violate the injunction of the Court was a party to the suit, he could be proceeded against for contempt or under the provisions of sub rule (3) of rule 2 of Order XXXIX of the Civil Procedure Code. He in this connection relied upon Shah Muhammad v. Haq Nawaz and another (PLD 1970 SC 470). It may be mentioned here" that the case of the petitioners before the Magistrate and before me was that they had already acquired the possession of the land in dispute before the issuance of the temporary injunction: Muhammad Ali petitioner appeared as his own witness before, the Magistrate and asserted that he had taken possession of the land three to four years before the date of his evidence (which was 18th of September 1971) during the consolidation proceedings. He admitted during cross-examination that he or his brother did not pay the land revenue directly but they used to pay the same to Bahawal who used to make the onward payment. According to the respondents, they had been dispossessed during the subsistence of the stay order but failed to specify the date. They have filed a petition for contempt before the Civil Judge and it is yet to be determined in those proceedings as to on what actual date they were dispossessed. According to the own showing of the peti--tioners there was no stay order subsisting on the day when they took possession of the land. The argument of Mr. Baqir is, therefore, against the factual position ta4en by his own clients.
11. In the Supreme Court case relied upon by Mr. Baqir, a tenant had filed a, suit for a declaration restraining his landlord from interfering if his possession during the pendency of the suit. An ad interim injunction was granted by the Court maintaining the possession of the tenant till the conclusion of the suit. This stay order was in operation when the Additional District Magistrate passed an order under section 145, Cr. P. C. And directed the police to seal the disputed premises.
The Supreme Court held that the order of the Additional District Magistrate was clearly illegal. If I may say so with great respect, what the Supreme Court laid down in the above authority was that pro--ceedings under section 145, Cr. P: C. Cannot be taken in violation of a decree or the terms of an order passed by a civil Court during the trial of a suit. If we agree with the proposition canvassed by Mr. Baqir, the result would be that a person possession of a civil Court's order regulating' his possession will be in a position worse than another person who is not so armed and who will always be able to invoke the emergent powers of the Magistrate under section 145, Cr. P. C., if he is sought to be dis. Possessed. I may quote here with respect the following observa--tions of their Lordships in the case cited by Mr. Baqir:----- "Take a case in which the plaintiff has been granted declara--tion of his rights in the property in suit, affirmation of hi possession and a perpetual injunction restraining the defendant from interfering with his possession. Can the judgment-debtor thereafter raise a `dispute' concerning the suit property. Assuming that he threatens to disregard the decree of the civil Court and to take forcible possession of the Property which causes apprehension of breach of peace, will it empower the Magistrate to attach the property and thereby dispossess decree-holder. If the answer be in the affirmative then the anxiety expressed in the case of Markur is justified that such state of affairs it intolerable in a civilised society.--- I therefore, find no force in Mr. Baqir's contention that once a stay order is passed, any trespasser can evict the person armed with a decree or stay order with impunity leaving him in condition of complete helplessness and disability to maintain hi possession by invoking the emergent powers of a Magistrate.
12. The result is that the impugned order is upheld and I find that possession was rightly ordered to be restored to the respondents. This petition is dismissed.