Actual possession under Section 145 of the Criminal Procedure Code requires effective occupation or control over the land, not merely an isolated act of possession.

Kamla Sahai, J.

1. This application by the second party is directed against the final order passed in a proceeding under Sec.145 of the Criminal Procedure Code.

2. In view of the course which I propose to adopt in this case, I do not consider it necessary to give in detail the cases of the parties. All that I need mention is that the members of the first party claim to be in possession of the disputed land under a registered patta executed on 22-2-1952, by one Narendra Prasad Singh, admittedly a cosharer of Shri Rudra Narain Singh of the second party, who Is petitioner No. 1 in this Court. They also claim that they have made some constructions upon the land. On the other hand, the second partys case is that an area of 5.85 acres of land, including the disputed land, was left ijmal between petitioner No. 1 and his co-sharers named Narendra Prasad Singh and Krishna Singh alias Srikrishna Singh under a compromise partition decree dated 19-2-1941. It is also the case of the second party that, by mutual arrangement, the second party has been in possession of 2.52 acres out of plot No. 1327, including the land in dispute. It is alleged that some trees stood upon this area of land; but they have dried up.

3. The learned Magistrate does not appear to have clearly stated anywhere in his judgment as to who was in possession before the members of the first party made constructions upon the disputed land. He has, however, come to the conclusion that the patta executed by Narendra Prasad Singh on 22-2-1952, conferred a right of possession over the members of the first party, and that they came into possession of the disputed land when they made constructions upon it, even though they did so in the absence of petitioner No. 1. He has further ob-served that, since they came into rightful possession and did not come into possession as trespassers, their possession had to be upheld by the Court.

4. The first point which Mr. Lalnarain Sinha has argued on behalf of the petitioners is that the first party cannot be held to have come into possession merely by reason of exercising an isolated act of possession in making constructions upon the disputed land in the absence of petitioner No. 1. In support of this argument, he has drawn my attention to a decision of Ross, J. in Ramnarain Singh V/s. Dhonrai Gope, AIR 1922 Pat 371. In that case, the petitioners had stealthily ploughed the disputed land and had sown crops on it at a time when the opposite party was absent

His Lordship said that the Magistrate was right in ignoring such stealthy act of possession because possession within the meaning of Sec.145 of the Criminal Procedure Code meant effective occupation or control. The facts of that case are distinguishable as the petitioners in that case had not made any construction upon the disputed land, Mr. Sinha has also relied upon a decision of a Division Bench of this Court in Mahabir Singh V/s. Emperor, AIR 1934 Pat 565. In that case, the Bench observed that an isolated act of trespass did not constitute possession of the wrong-doer as against the rightful owner in possession. The facts of that case are also distinguishable. I, however, respectfully agree with the learned Judges who decided the two cases that mere exercise of an isolated or stealthy act of possession cannot constitute actual possession in the eye of law. What has to be considered is whether the party concerned did Or did not occupy & take effective control over the land in question. If he did, he must be held to have come into actual possession over the land, irrespective of whether the party opposed to him was present or absent at the time. This is a question which has to be decided as a question of fact.

5. The learned Magistrate has not, in his judgment, given any details about the alleged constructions made by the first party on the disputed land. It is not clear what constructions they have made and in what area of the land, nor is it clear how long they went on making