Interpretation of possession in the context of coparcenary property and the scope of Sec.145, Criminal Procedure Code.

Banerji, J.

1. This reference is by the District Magistrate of Gaya recommending the reversal of an order under Sec.145, Criminal P. C., passed on 21-8-1952, by Mr. G. K. Prasad, Magistrate 1st Class, Gaya, declaring possession of the second party.

2. One Ramnath Singh had four sons, Ugra Narayan, Muneshwar, Kapildeo and Baijnath. Ugra Narayan was living in village Majhaulia, Police Station Sherghatty, and died there. After his death, dispute sprang up between the four sons of Ugra Narayan, who are the second party, and the group representing the 12 annas share of the three brothers of Ugra Narayan. This group (the first party in the proceeding) alleged that the second party were the sons of Ugra Narayan by a kept woman and they were never in possession ol the lands in village Majhaulia under khatas Nos. 8, 10, 13, 15, 16, 17, 18 and 20. They claimed their exclusive possession over these lands. On the other hand, the case of the second party was that they were the legitimate sons of Ugra Narayan through his second wife. They claimed that their father had been in exclusive possession of all the disputed lands in village Majhaulia, and, after his death, they came into possession of the same and the first partys claim was a mere pretence.

3. The learned Deputy Magistrate disposed of the proceeding under Sec.145, Criminal P. C., in favour of the second party, holding that they were in exclusive possession of these lands.

4. The learned District Magistrate has given Jour grounds for setting aside the order of Mr. G.K. Prasad. Out of these, grounds Nos. 2, 3 and 4 did not commend themselves even to the first party who have appeared in this Court through their learned Advocate. In ground No. 2, it is stated that the witnesses of the Second party admitted the possession of the first party over the lands in dispute. Mr. G.K. Prasad in his report has stated that it is just to the contrary and that actually some witnesses of the first party admitted possession of the second party. This is borne out by the record and the learned Advocate for the first party, therefore, does not attach any importance to this ground. He also does not rely upon ground No. 3 where the learned District Magistrate has said that the Magistrate trying the Sec.145, Criminal Procedure Code proceeding was wrong in holding that the order of the Land Registration Deputy Collector was stilt sub judice and had not assumed the form of a decree as yet. Again, he dees not approve of the idea of the disputed lands being attached under Section 146, Sub-section (1), Criminal P. C., as suggested by the learned District Magistrate in ground No. 4.

5. The point in controversy, therefore, now centres round ground No. 1. In this ground, the learned District Magistrate has stated that as the Second party have filed a partition suit in the Civil Court claiming a four annas interest in the disputed lands, the Court below had gone beyond its jurisdiction in declaring possession of the second party over the entire 16 annas, that is, over all the lands in dispute. This ground has been clarified further by Mr. Lalnarain Sinha appearing on behalf of the first party. He contends that the possession of a coparcener over a portion of the joint family property is actually the possession of the whole family and that an adverse order under Sec.145, Criminal P. C., if passed, would convert the coparceners possession, which is on behalf of the family, into hostile possession adverse to it, which position cannot be sanctioned by law. It is a fact that the second party has filed a partition suit claiming four anna interest in all the lands of different villages left by Ramnath Singh on the footing that they are the legitimate sons of Ugra Narayan who was joint with his other three brothers. In support of his contention, Mr. Sinha has cited two decisions, namely, -- Kinu Mondal V/s. Haji Baul Mondal, 23 Cal WN 1051 (A) and -- Radha Raman V/s. Baliram Ram, 32 Cal 249 (B). The facts of both th