JUDGMENT

Graham, J. - In this case a rule was issued calling on the Deputy Commissioner of Sylhet and the opposite party to show cause why the order of the Extra Assistant Commissioner of Sylhet dated 6th December 1926 u/s 145, Criminal P.C., declaring the 2nd party (now the opposite party) to be entitled to retain possession of certain land should not be set aside on the ground that the learned Magistrate erred in law in not upholding the possession delivered to the petitioner (1st party) under a civil Court decree against the opposite party Piran Ali.

2. On the particular facts in this case the Magistrate's order is in my opinion manifestly wrong, and he ought, I think, to have maintained the decree of the civil Court, and the possession given by it subsequent thereto Atal Hazra v. Uma Charan [1916] 20 C.W.N. 763, Akhoy Mondal v. Basu Bai AIR 1923 Cal. 176, Kunja v. Khetra [1902] 29 Cal. 208. The petitioner, 1st party, obtained possession of the land in question through the civil Court on 23rd July 1925 and it is clear that the opposite party No. 1. Piran Ali (opposite parties 2 and 3 are his sons) has throughout wilfully ignored the decree, and is treating the litigation as if it had never taken place. In my judgment it is not right that the criminal Court should support him in this attitude.

3. The view taken in the Courts below seems to be that, however much right may be on the side of the 1st party, the only thing that counts is actual possession, and that, possession being with the 2nd party, that party must succeed, no matter how that possession may have been obtained. I cannot persuade myself that this is sound law. Possession, as I understand the word, means lawful possession, and not possession taken by force in defiance of law. No Court ought in my opinion to recognize such possession as is claimed here by the 2nd party. The law is proverbially an ass, but I do not think it can for a moment countenance such a state of things as must necessarily follow if the decision, which has been arrived at in this case, is affirmed. The land in question was formerly in dispute between the parties, and one of them went to the civil Court, and in. due course obtained a decree followed by possession. The 2nd party ignoring that decision again took possession of the land, and upon the 1st party complaining to the Magistrate he is informed that though he has right on his side, the and party is in de facto possession and, that being to, is entitled to retain such possession until evicted in due course of law. In other words the 1st party, having already been successful in the civil litigation, is to be again compelled to have recourse to the civil Court, and that within about a year of the passing of the decree (the police report was dated 29th May 1926). From the point of view of the 1st party the position seems to be a hopeless one, and the result appears to be due to making a fettish of possession. No doubt it is true that in cases u/s 145, Criminal P.C., possession of the land in dispute is the only point to be decided. But it must, I think, be lawful possession which the Court can recognize, and not the, possession of a trespasser and wrong doer.

4. There is another aspect of the matter. The section relates to disputes regarding land. In this instance the dispute had been finally decided in the civil Court. That being so, there was not, properly speaking, any dispute, the Magistrate had no jurisdiction, and the proper course would, it seems to me, have been to take steps u/s 107, Criminal P.C., against the aggressive party or parties.

5. For the above reasons I would make the rule absolute on the ground on which it was issued, and set aside the order declaring the 2nd party to be in possession of the land, leaving it to the Magistrate to proceed u/s 107, Criminal P.C. if the adoption of that course is deemed to be necessary.

6. As my learned brother is of a different opinion the case will be laid before the Chief Justice in order that