JUDGMENT

FAZAL ALI, J. (Majority View) :— This appeal by special leave against the judgment of the Calcutta High Court discloses an unfortunate litigation which proves the well known legal maxim "delay defeats justice" and arises out of a Will executed by the testator which was hotly contested by various rival claimants resulting in an action which went on merrily and sprightly for almost three decades as a result of which in the back-waters of the long drawn litigation most of the claimants died and their successors were interested not in the property but in the money which the property would bring, if sold.

2. As a result of internecine dispute between the heirs, an Official Receiver had to be appointed to look after the property and the final end of the drama seems to have begun when the Receiver, on the request of the parties, decided to sell the property with the permission of the Court by a private treaty lest the litigation might draw the last drop of the blood of the property rights of the heirs. Meanwhile, some more events followed which made the task of the Receiver both complex and complicated as the respondents put up their claim to possession of the property either in trespassers or as licensees from some of the heirs.

3. Thus, while the negotiations for the private treaty were going on a new upshot in the guise of the respondents claim seems to nip in the bud the attempt of the owners to get the property back. During the course of the three decades, lot of changes took place in Howrah - the population rose by leaps and bounds, a number of buildings came up and perhaps it became next to impossible for the heirs to occupy the premises again. To add to this, came up a new litigation in the shape of proceedings under S. 145 of the Code of Criminal Procedure between the parties.

4. The heirs having given up all hopes of getting vacant possession became "sadder and wiser" to sell the property if they could get a handsome amount for the same. A bargain was, therefore, struck, with the approval of the Receiver, by which the entire property was agreed to be sold to the appellant for a sum of Rs. 4 lakhs, under which he paid Rs. 1 lakh and promised to pay the remaining amount of Rs. 3 lakhs at an early date. The appellant also expressed his willingness to take the property under sale subject to the pending litigation.

5. The matter, however, did not end here because the trespassers jumped into the fray in order to stop or render the sale nugatory. When the matter came up before the Court, it, on being satisfied that the sale was from all points of view in the interest of the heirs, affirmed the said sale. The appellant contended that the possession of the premises by the respondents did not pose any problem because they being rank trespassers could be evicted summarily by the Receiver under the provisions of the Civil Procedure Code. But, we think that the matter was not so simple as that because once possession of the premsies by the respondents had lasted for a year or more and proceedings under S. 145 of the Cr. P. C. had already started, the law had to take its normal course. So far as the Criminal Court is concerned, the only course which could at best be taken was to declare possession of the party who was in possession two months next before the initiation of the proceedings under S. 145 or of the party who was found to be in possession of the property at the relevant time.

6. The relevant portion of S. 145 may be extracted below :

"145. Procedure where dispute concerning land or water is likely to cause breach of peace.

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(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of the dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the