JUDGMENT

Walmsley, J. - Atul Chandra Mandal, the petitioner, is the first party in a proceeding u/s 145, Criminal Procedure Code, which ended in an order in favour of the second party, Srinath Laik and Kamalakhi Dasi.

2. The petitioner's case is that the land which formed the subject of the proceeding was held by his father under one Mohendra Chakravarty and that his father let it out to some. Lohars in 1302 B. S.; that the latter failed to pay the rent, and the petitioner obtained a rent decree against them, caused the property to be sold in execution, bought it himself on Jane 13th, 1918, and took possession through Court on August 5th 1918.

3. The case for the second party is, this", that one Sujay Chandra Das was in possession of the village in which the land is situated, that be let the land in dispute to one Sarbeswar Mandal in 1912, that Sarbeswar let it to some Lohars, bat bought it himself in 1915 in execution of a rent decree against them, that in 1324 B. S. Sarbeswar sold his rights to Kamalakhi Dasi wife of Sujay Chandra Das and that she let the land to Srinath Laik on May 2nd, 1918.

4. It is common ground, therefore, that some Lohars were in possession untilrecently and that Srinath was not in actual possession until May 1918, and Atul not until August 1918.

5. The trouble arose a few days after the delivery of possession to Atul on August 5tb, 198, but the proceedings were drawn up on December 12th, 1918, and the question which the Magistrate bad to decide was which of the two parties was in possession on that date.

6. The grounds taken on behalf of the petitioner are three:

(1) that the learned Magistrate has gone into ancient history, instead of confining bis attention to the one question of which party was in possession on December 12th, 1918;

(2) that as one party said the land was in Village Parulia while the other said it was in village Chaoari, an adjudication on that point was necessary to a decision of the case; and

(3) that the learned Magistrate ought to have held himself bound to uphold the order of the Civil Court patting Atul Chandra Mandal in possession.

7. the first ground needs very few words. It is clear that the learned Magistrate appreciated that the question was who was in possession on December 12th, 1918, but to answer that (ideation he had to examine the stories told by both sides.

8. As to the second ground, there is no dispute regarding the identity of the land: whether it is within the boundaries of one village or Another makes no difference as to actual possession, although it would have an important bearing on title.

9. The third ground, however, is the one that has been pressed most, strenuously and it is, no doubt, on this ground that the Rule was issued. The decree to which reference is made was a rent decree obtained by Atul Chandra Mandal against some Lohars: in execution of that decree the holding was put up ' to sale and bought by Atul on June l3th 1918: possession was given to him by the Civil Court on August" 5th, 1918. With regard to that decree it is to be noted that the defendants were not the Lohars mentioned by the second party, and that neither Srinath Laik nor Kamalakhi Dasi-the" members of the second party-nor any of the Lohars mentioned by them were parties to the decree and that the decree was Obtained exparte. There has, therefore, been no adjudication by a competent Court between the parties now litigating. It is urged that this fact is of no consequence and that the second party should have been left to seek redress under Order XXI, Rule 100. It is quite true that that provision gives a remedy to one who has been dispossessed, but their case is that they were not, in fact, dispossessed, and that appears to be the finding of the learned Magistrate although it is not very clearly expressed. Numerous authorises have been quoted before us on the question of the weight to be attached in proceedings u/s 145, Criminal Procedure Code, to a decree of the Civil Court regarding the pro