JUDGMENT

Rankin, C.J. - In this case an application in revision u/s 439, Criminal P.C., has been made to the Court against an order of 13th August 1927, made by the Deputy Magistrate of Comilla u/s 145 of that Code in proceedings instituted on 9th May 1927. A rule having issued and cause being shown before the Division Bench, a reference has been made to this Full Beach. Three points are formulated in the order of reference, viz.-

(1) Do the words "actual possession" in Sub-section (1), Section 145, Civil P.C., mean actual personal physical possession even though wrongful, e.g., that of a recent trespasser in actual physical possession at the time of the proceedings u/s 145.

(2) Does the word "dispute" in the same subsection mean actual disagreement existing between the parties at the time of the proceedings u/s 145 even though the question as to the right to possession has already been decided by a civil Court.

(3) Has the law been correctly laid down in the case of Ambar Ali Vs. Piran Ali and Others, AIR 1928 Cal 344 or in the case of Atul Hazra v. Uma Charan 20 C.W.N. 796 and Kedarnath Paramanik Vs. Hem Nath Karmakar, AIR 1923 Cal 176 .

2. By the rules of this Court (Ch. 7, Rule 5, Appellate Sides Rules) the case itself is referred to us and we have not merely to answer the specified points of law.

3. In these circumstances it is necessary to set out the facts. The applicant before us was the 1st party before the Magistrate. It appears that he took a mortgage in 1906 from Moktar and his wife Arjatannessa; that he sued upon it and after the wife's death recovered a mortgage decree on 15th September 1919, for sale against Moktar and the heirs of the wife. On 16th September 1923, he applied to execute the decree alleging that limitation was saved by an arrangement by which in 1920 he was put in possession of certain portions of the land in lieu of interest. In the end this question was concluded by a decree of this Court on 11th December 1925. The finding was that as against the minor heirs of the wife the decree was no longer capable of execution as the arrangement relied upon to save limitation was not so made as to bind the minors. Thereafter the property was sold as against Moktar and purchased by the decree-holder; an application to set aside the sale for non-service of notices, etc., was prosecuted to the High Court and was dismissed, but this Court on 11th May 1925, made it clear that no decision was arrived at, or could in those proceedings be arrived at, on the question whether the original owner was Moktar or his wife or on the question of their shares. On 8th February 1926, the applicant, i.e., decree-holder first party, was put in possession pursuant to his purchase. It is quite clear that he was not put into actual possession of the homestead and the finding is that he was given possession of the scattered plots of agricultural land by the planting of a bamboo.

4. The Magistrate has found possession to be with Montazaddin and Afajaddin of the 2nd party. These are sons of Moktar. Afajaddin is the minor or one of the minors against whom the decree was held to be barred in execution. He is an admitted heir of his mother Arjatannessa. It is clear enough therefore that as against his right to possession or as regards the extent of his share there has been no decision of any Court of law.

5. The applicant contends that the Magistrate had no jurisdiction to take action u/s 145; and, alternatively, that if he did take such action he was bound in law to find that the applicant was in possession by reason of the delivery of possession given by the civil Court on 8th February 1926, some 15 months before the date of the Magistrate's proceedings. This argument proceeds upon the view: (1) that the section refers only to bona fide disputes and not to cases in which the claim on one side is without any rational ground or is made without any real belief in its validity; (2) that the section is intended to make interim provision until dis