In a proceeding under Section 145, Criminal Procedure Code, the Criminal Court must respect the recent delivery of possession by the Civil Court and properly consider the oral evidence of the parties and the circumstances of the case to determine actual possession.

Misra, J.

1. This petition arises out of an order under Sec.145, Criminal P. G., passed by a First Class Magistrate at Nawadah, declaring the opposite party to be in possession of the lands of khata Nos. 3, 4, 6, 7, 9, 11, 14, 16, 18, 19, 20, 21, 23, 26 and 34. (except plot Nos. 92 and 93). The petitioners were the second party in the proceeding.

2. The case of the first party briefly stated was that he purchased these lands at an auction sale held on various dates in the year 1936 at the instance of Srikant Lal and Shyamakant Lal, landlords of the mouza, who obtained rent decree against the members of the opposite party who were the raiyats in respect of the lands in dispute. He came into peaceful possession of the property, tout trouble started in 1939 when some of the original raiyats laid claim to the land. This gave rise to a proceeding under Sec.144, Criminal P. C., which, however, ended in favour of the first party. The first party, Govind Lall, continued in peaceful possession thereafter when fresh trouble started in the year 1946 and there was a police report on 2-12-1947 for action under Sec.144, Criminal P. C. This was converted into a proceeding under Sec.145, Criminal P. C., on 24-2-1948, which has now ended in favour of the opposite party.

The case of the petitioners who were second party in the proceeding was that although there was auction sale of the land in dispute in the year 1936, the members of the second party remained in possession, and they took settlement of the auction-sold lands from the landlady Ambika Bhawani Devi and remained in possession thereafter. The first party, Govind Lall, is a servant of the landlord and he has been set up by the landlord to deprive the petitioners of the land in dispute in a fraudulent manner. The matter was enquired into by a First Class Magistrate who passed an order in favour of the first party, Govind Lall, declaring him to be in possession of the land. The petitioners, however, filed an application in revision against that order and this court set aside the order holding that there should be two different proceedings, one, in respect of the land which is the subject-matter of the present proceeding, and another in respect of other lands which form the subject-matter of Criminal Revision No. 391 of 1953, which has also been heard along with this petition. The evidence was, again, recorded separately in the two cases and the learned Magistrate in the present case has again declared the first party to be in possession of the land.

3. Sir Sultan Ahmad in support of the application has contended that the judgment of the learned Magistrate is vitiated as he has allowed his mind to be influenced by the so-called delivery of possession by the first party after his alleged auction purchase in 1935. The present proceeding started in 1946 and, therefore, the learned Magistrate was clearly in error in allowing his mind to be influenced by the so-called auction purchase and the delivery of possession which took place some time in 1936 and 1939. In the second place, he has urged that the learned Magistrate has also erred in so far as he has not considered the evidence of actual possession which is really material for the decision of a dispute under Sec.145, Criminal P. C. According to the learned Counsel, what the learned Magistrate has done is to make up his mind with reference to the sale certificate and the delivery of possession in favour of the first party and then to enumerate in general terras the witnesses on behalf of the parties coming to a conclusion without assessing their evidence that the first party was in possession.

Considering the argument with regard to the sale certificate and the alleged delivery of possession, I agree with the learned Counsel that the learned Magistrate was really in error in attaching undue importance to that fact. It appears that he has referred to a number of decisions of this Court as well as Calcutta High Court laying down the p