Patna High Court
S.M. Yaqub And Ors. vs T. N. Basu And Anr. on 17 September, 1948
Equivalent citations: 1949CRILJ299, AIR 1949 PATNA 146
ORDER Meredith, J.
1. This is an application by the second party to proceedings under Section 145, Criminal P. C., the Magistrate having found the possession of the first party and directed the petitioners not to interfere with it. The learned Additional Judicial Commissioner of Chota Nagpur has declined to make a reference in the matter to this Court.
2. The proceedings relate to the mineral rights in three villages, Kali, Dumara and Mahuamilan, within pargana Tori in the district of Palamau in Chota Nagpur.
3. In the year 1867, the then Maharaja of Chota Nagpur made a khorposh grant of the entire pargana Tort, comprising 53 villages, to his younger son, Maharaj Kumar Jagat Mohan Nath Sah Deo. He died in 1869, and his elder son, the present Maharaja, half brother of Jagat Mohan, succeeded. Disputes arose between the half brothers with regard to the mineral rights in the pargana. In 1921, the Maharaj Kumar granted a prospecting license to a Syndicate, and in 1922 the Maharaja brought a civil suit in the Court of the Subordinate Judge of Palamau for a declaration of his right to the minerals in pargana Tori and for an injunction restraining the Maharaj Kumar from entering upon or re-moving any minerals within the pargana or from interfering with the Maharaja, his servants or agents in doing all acts incidental to the enjoyment of the right. This suit failed in the Court of the Subordinate Judge, but was decreed in appeal in the High Court in 1927, the case is reported in Udai Pratap Nath v. Jag at Mohan; 6 Pat. 638 : A.I.R. (15) 1928 Pat. 66) and this was upheld by the Privy Council in 1931, the decision is reported in Jagat Mohan Nath v. Pratap Udai Nath, 10 Pat, 877 : A.I.R. (18) 1981 P. C. 302).
4. By two deeds in October 1944, the Maharaja gave leases of the mineral rights in the entire pargana to the National Cement Mining Industries Limited, the employees of whom now constitute the first party. On 1st August 1946, ' S. M. Yakub of the second party took a mining lease of the entire pargana Tori from the sons and here of the Maharaj Kumar. Yusuf Khan of the second party claims to have taken a sublease of the minerals of village Mahuamilan from S. M. Yakub. The remaining members of the second party are servants of S. M. Yakub.
5. The case of the first party is that since taking their leases in 1944 they have been in peaceful possession of all the mines and minerals in the villages in dispute. They carried on various prospecting operations and dug pits in Plot Ho. 634 in village Kali to prove the existence of a seam of coal. The second party forcibly enter-ed into, and started digging coal in village Kali in September 1946 despite the protests of the first party, and there ensued an imminent danger of a breach of the peace.
6. The second party denied that there was any danger of a breach of the peace, The first party had never sec foot in any of the villages, On 6th February 1893, the Maharaja and the Maharaj Kumar had entered into a family agreement to divide the minerals of the pargana half and half. They had agreed to observe tins settlement despite the result of any subsequent litigation (?). This agreement as a family arrangement recognising existing rights was valid despite the lack of registration. It was not put in, and neither party relied upon it, in the civil suit, and the decision in that suit could not affect it. S M. Yakub, before taking the mining lease on 1st August 1946, approached the Maharaja to join in the execution of the lease, but this was not done, though Yakub took a prospecting lease of two villages in the pargana, Bari and Sikni, from the cement Company and did some unsuccessful prospecting work therein. The case of the second party is further that Yakub, on 15tn December 1945, entered into an unregistered agreement to lease with the Maharaj Kumar's son, and thereunder conducted certain mining operations from February 1946 to June 1946. After taking a re- gistered lease on 1st August, the second party conducted further mining operations.
7. I have not thought it necessary to enter into further details of the long dispute between the Maharaja and Maharaj Kumar. It will suffice to mention one other facts. In 1934 the entire Tori estate of the Maharaj Kumar came under the management of the Court of Wards under Section 2, Chota Nagpur Encumbered Estates Act. It, is still under that management.
8. The present proceedings first started on 28th September 1946, on the application of T. N. Basu of the first party, Geologist to the National Cement Company, regarding one village Kali only for action under Section 144, Criminal P, C. On 11th October 1946, another employee of the Cement Company made a further application under Section 144 against all the nine members of the second party with respect to all the 53 villages. Notices under Section 144 were issued against both parties. - Later the two proceedings were amalgamated, and after bearing the parties, the proceedings were converted to proceedings under Section 145, Criminal P. C. on 26th November 1946, and for some reason which is not clear, were limited to three villages only, namely Kali, Dumara and Mahuamilan, These three villages were then attached.
9. The Magistrate passed final orders on 27th September 1947, a year later. His findings regarding possession are not as precisely expressed as they might have been, but they come to this: that no minerals had been actually worked by either party until within two months of the initiation of the proceedings; the first party had done no working at all in Kali and" Mahuamilan and their only act of possession was the digging of a few trial pits in village Dumara in April 1945; the second party might have (his finding is not clear) extracted some fire clay in village Mahuamilan and dug some pits in villages Kali and Dumara from February to June 1946; anything else they did was within two months of the proceedings; neither party, however, had established that they had actually worked mines or minerals, and so neither had proved actual possession. After an elaborate examination, however, of the disputed question of title he came to the conclusion that the title lay with the first party, and applying the principle laid down in Ranchi Zamindar Co. Ltd. v. Maharaja Pratap Udainath Sahi Deo, 18 Pat. 215 : A.I.R. (26) 1939 pat. 209: 40 Or L. J. 631) that in the case of un worked minerals possession should be held to follow title for the purposes of Section 145, Criminal P. C, he found the possession of the first party.
10. Mr. P. R. Das for the second party-petitioners has advanced four arguments. First, that the proceedings were without jurisdiction because the Magistrate had not stated his grounds for apprehending a breach of the peace. He did not even have a police report to act upon. Second, that Section 145 has no application to disputes regarding mineral rights. Third that in a case like the present, where the minerals have been found to be unworked, and, consequently, not in the actual possession of any one, it is not open to the Magistrate to find possession for the purpose of an order under Section 143 by applying the principle of constructive possession, namely, that possession follows title. The wording of Sections 145 and 146 shows clearly that the Magistrate is confined to the question of actual possession, and he is not entitled to go into the title at all for the purpose of finding possession. The decision in the case of Ranchi Zamindari Go. Ltd. v. Maharaja Pratap Udainath Sahi Deo, (18 Pat. 215: A.I.R. (26) 1939 pat. 209: 40 Cr. L. J. 631) is wrong and needs reconsideration. It is in view of this argument that a Special Bench has been constituted to hear this application.
11. Fourth, that, in any event, the Magistrate's finding with regard to title is wrong. Title to the extent of 8 annas lies with the second party.
12. With regard to the first contention, it is true that the Magistrate did not act on a police report. He acted on petitions filed by members of the first party only, and though he did hear the parties and has expressed the opinion that a danger of a breach of the peace existed, he did not state his grounds for that opinion. Under Section 148 (1) the Magistrate in his order drawing up proceedings shall state the grounds of his being so satisfied, and in this the Magistrate's procedure is certainly not in accordance with the provisions of Section 145 (1). Nevertheless, I am of opinion that the High Court would be taking an un-justifiable risk and responsibility in interfering with an order merely for this reason when the Magistrate has definitely expressed his view that there is a danger to the public peace. The responsibility for maintenance of the peace is that of the Magistrate, not that of the High Court, The proceedings are only of a semi-judicial nature. To some extent they may be regarded as administrative. The failure to state the grounds, in my view, does not touch the question of jurisdiction. The ruling upon which Mr. Das has principally relied is Nittyanand Boy v. Paresh Nath Sen, 32 Cal. 771 : 2 cr. L. J. 342). Therein it is laid down that if the Magistrate omits in the initiatory order under Section 145 (1) to state the grounds of his being satisfied as to the likelihood of a breach of the peace, the final order is without jurisdiction. That decision, in my opinion, betrays a confusion as to the nature of jurisdiction. I think no question of jurisdiction arises, and I repeat that when the Magistrate, who is responsible for the maintenance of the peace within his jurisdiction, has expressly stated that a danger of a breach of the peace necessitating action under Section 146 exists, the High Court should not lightly interfere.
13. With regard to Mr. Das's second argument, it is unnecessary to examine it or to express any opinion. It is enough to say that there is considerable weight of authority for the view that disputes regarding sub-soil minerals-come within the scope of Section 145 where the question is as to actual physical possession, and not .merely as to the right to prospect or to conduct mining operations.
14. Mr. Das's fourth contention involves an inconsistency with his third, and as, in my opinion, for reasons about to be stated, his third Contention is sound, it follows that in this matter, since the Magistrate was not entitled to come to any decision on the complicated question of title, neither is it open to this Court to do so when sitting in revision upon his order. It is enough to say that the Magistrate's decision regarding the title has been most seriously and strongly challenged by Mr, Das.
15. With Mr, Das's third contention I find myself in complete agreement. It has been con. ceded on behalf of the first party before us that the Magistrate is not entitled to base his decision upon constructive possession; and the sort of possession that can be inferred, in the case of completely unworked minerals, from the title is nothing but constructive possession. In the case of Bhupendra Narayan Singha v. Rajeshwar Prasad Bhakat, 59 cal. 80 : A.I.R. (is) 1931 p. 0.162) the Privy Council expressly said that, such possession was constructive only.
16. Sections 145 and 146 have been so word-ed as to emphasise that the Magistrate is to concern himself only with actual possession. He is-% expressly forbidden to refer to the .merits of the-claims to title, and obviously, therefore, if he is not allowed to find the title, he cannot draw any inference as to possession from the title. Under Section 145 (l), he is required to call upon the parties to put in written statements of their respective-claims; but not their claims to title. The Legislature has taken the utmost pains to prevent questions of title from creeping in to confuse the Magistrate 'and protract the proceedings.- Therefore, the wording is used "to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute".
17. Section 145 (4) prescribes the Magistrate's procedure.
The Magistrate shall then, without reference to the merits of the claims of any such parties to a right to possess the subject of dispute ...,., if possible, decide whether any and which of the parties was at the date of the order before mentioned in ouch possession of the said subject.
18. The word "such" before "possession" makes reference to "actual" possession, and the Magistrate is expressly prohibited from referring to the merits of the claims of the parties to the title.
19. In- the legal sense, some one must always be in possession because if no one is in physical possession, the law will deem the true owner to be in possession. But the use of the words "whether any" shows that the Magistrate is not apply that principle; and this is made still dearer in Section 146. Section 146 (l) says: "If the Magistrate decides that none of the parties was then in such possession" etc, etc. Here again the word "such" is used, referring back to the word "actual," and the law baa made it plain that it contemplates the possibility that the Magistrate shall find neither of the parties was in actual possession. This is not a reference to the possibility of some third party being in actual possession, because clearly the Magistrate could not have been enjoined to attach the property of some third person not a party to the proceedings. The possibility envisaged is that the Magistrate shall find no one in physical possession. That possibility never arises if actual possession includes possession constructively inferred from title, and the insertion of this provision makes the intention of the Legislature even clearer, if possible, than the wording of Section 145.
20. It was, however, argued before us that the nature of possession must vary with the nature of the subject-matter, and in the case of minerals in the ground no other possession is possible than that which is an inference from acts such as sinking pits at places in the area, and so on. Therefore, in such cases the Magistrate may be said to be finding actual possession when he infers possession from the title.
21. This argument betrays a confusion of thought. Undoubtedly, in such cases, there is a notional element in possession; possession to some extent is a legal fiction. There is Privy Council authority for that. In Nageshwar Bux Boy v. Bengal Goal Go. Ltd., 10 pat. 407 : A.I.R. (18)1931 P. C. 186) the Privy Council said:
In considering the character and effect of acts of possession in the case of a mineral field, it is necessary to bear in mind the nature of the subject and the possession of which it is susceptible. Owing to the inaccessibility of minerals in the earth, it is not possible to take actual physical possession at once of a whole mineral field; it can be occupied only by extracting the minerals and until the whole minerals are exhausted the physical occupation must necessarily be partial.
22. One must go further even than that. All possession necessarily involves a notional or fictional element. A little thought will make this clear. I am said to possess a piece of land if I perform certain acts thereon at reasonable intervals. I bow crops thereon, may be I water them at intervals; when they are ripe I cut and take them. May be, if I am zealous, I frequently walk round the land. But evidently for a large proportion of my time I am not on it, and not in physical contact with it. The same applies to a house. I am held to be in possession of it even though I cannot be in every room every hour of the 24. Portions of the day I may leave the house completely empty. Still no one will question my possession. Even in the case of moveable property, the same considerations apply. I am in possession of my fountain pen though it is not always in my hand. I submit that the only ease of complete actual physical possession is that of an object which I can grasp in my hand for the period it is actually in my grasp. Everything else is notional to a greater or lesser degree. Therefore, when the law speaks of actual possession if; does not mean, and cannot mean, that the Magistrate is debarred from applying the ordinary criteria of possession from applying the notional element. Here, however, the confusion of thought is liable to come in. It is on& thing to infer possession from certain acts at intervals, or over the whole from the pArticle and quite a different thing to infer it from the title. The first is permissible to the Magistrate and consistent with the wording of Section 145. The second is debarred. The one has its basis in physical possession, the other has no connection with that and is quite consistent with a complete absence of any physical connection with the property.
23. The extent to which actual possession of the whole is a justifiable inference from partial possession, either as to time or place, is in each particular case a question of fact regarding which no general principle can be laid down.
24. All this is excellently illustrated in the Privy Council case to which I have just referred Nageshwar Bux Boy v. Bengal Goal Go. Ltd. (10 Pat. 407: A.I.R. (18) 1931 P. C. 186). This was a case where the Privy Council, after pointing out that in the case of minerals in the ground the extent of possession enjoyed was an inference of fact said that as an inference of fact in the case before them it might be inferred, on behalf of a trespasser, that the sinking of pits in mining coal in various portions of a mineral field was equivalent to actual possession of the whole. It was pointed out that this did not conflict with the general principle that where a person takes possession as a trespasser any title which he may acquire by adverse possession will be strictly limited to what he has actually so possessed. Nor was it inconsistent with the cases wherein it had been laid down that in the case of mines there is no presumption in law that the possession of a part of a seam infers possession of the whole seam, much less of all the seams in the mineral field in which part of a seam has been worked.
25. Be it noted that the inference from the part to the whole has here been made by the Privy Council in favour of the trespasser, and has nothing whatever to do with any rights of a title-holder.
26. It is now necessary to notice something that inevitably follows from the above analysis. The law looks differently on the possession of the trespasser and on that of the true owner. The trespasser prescribes only for what he actually holds, whereas the true owner is permitted a wider latitude in his claim to possession. That, however, is a distinction which the Magistrate must ignore. The criteria which he must apply in forming his opinion as to the actual possession of either party, as derived from acts performed by them, must be exactly the same in the case of both parties; for, he does not know and cannot decide which is the true owner and which is the trespasser. He may, where the facts justify, as in the Privy Council case, find possession of the whole from acts which do not embrace the whole of the time or place, but he cannot apply that principle in favour of one party at the expense of the other. Ha is forbidden in effect from regarding the evidence of one party with a more favourable eye because in his opinion that party holds the title. Yet that is the procedure which we find adopted in case after case, and which in many decisions has been unfortunately approved.
27. I deplore what has happened in the course of years with regard to procedure under Section 146. The section was unquestionably framed to provide a speedy remedy of a semi-administrative type in the case of danger to the public peace. The Legislature, in my view, did everything that could be done to make its intention clear and to prevent that happening which has happened. Yet it was in vain, and the wedge was very soon put in. The Magistrate cannot refer to the title directly, said certain decisions, but he can do so indirectly to supplement the evidence of possession ; to derive inferences as to actual possession; to corroborate the evidence on this side or on that. A cleavage of judicial opinion early became evident. We find the correct principle laid down by Sir Barnes Peacook in 1866 in Amrithnath Jha v. Ahmed Besaew. B, Cr. 61. That learned Judge said that the Magistrate was wrong in taking the title as prima facie evidence of possession and throwing the onus on the other party. In Bijoy Nath Chatter jee v. The Bengal Goal Co. Ltd. 23 w. B. Cr. 45 in 1875 it was pointed out that the performance of acts under an alleged right in one portion of the ground over which the right; was claimed, though it might be good and sufficient for the purpose of keeping alive that right so as to be an answer to the plea of limitation raised in a civil suit, was not of itself a sufficient possession on which the Magistrate's order under Section 530 (now 145) could be based.
28. I have found a case of 1881 where what was, in my opinion, the fatal error in construing Section 145 (or its then counter part) began to creep in. In Kah Kristo Thakur v. Golam Ali Chowdhry, 7 cal. 46 : s C. L. Rule 245) the Magistrate in the absence of sufficient evidence of possession had relied upon the title. It was held that he was wrong, but it was observed that the Magistrate would have been justified in looking to the evidence of title in corroboration of the evidence of possession. The wedge was in: the camel had his nose under the tent flap. In my view, such a course, apart from being forbidden by the law in express terms, is only likely to confuse and prejudice the Magistrate with regard to the actual evidence of possession and lead to a wrong decision; for his decision upon the evidence of possession should be unbiased by any view of the title, a view which he is not to take, and which is extremely likely to be wrong.
29. By 1886 the error is in full bloom. In Raja Babu v. Muddum Mohun Lall, 14 cal. 169. the Magistrate in determining the question of possession took into consideration the question of title, and it was held that he had a right to discuss the question of title if in his opinion it was material upon the question of possession, and that the mere fact that he had cons dared and discussed the question of title would not invalidate his decision on the point of possession provided that there was evidence before him as to who was in possession; and, in the absence of any other evidence of possession, the Magistrate would be justified in finding possession to be with a person to whom symbolical possession had been shown to have been given in execution of a decree.
30. Here we find reference to one of the mainstays of the line of decisions approving the Magistrate attaching some weight to the title. The argument is that the decision of the civil Court must be enforced by the Magistrate. Consequently, the Magistrate mustfind the possession of the party to whom possession has been recently delivered. The extent to which the word "recently" in applicable is always left vague. If the Magistrate does not adopt this course, it is said, the decree-holder will be forced into an endless series of infructuous deliveries of possession. This, to my mind, is all wrong. The delivery of possession, if properly made and not symbolical, undoubtedly transfers possession at the moment. It may be no more. The decree-holder who is resisted or immediately dispossessed is by no means with, out remedy. Apart from criminal proceedings against the person who has defied the law, he flan secure protection under- Section 145, if he acts promptly, as he ought to do. He has -only' to approach the Magistrate within two months of the act which again dispossesses him, an act which may take place immediately after the delivery of possession. If he does this, under the provisions of the section, the Magistrate can restore his possession. In my view, if the decree-holder does not come within two months of the disturbance to his possession or within two months of the actual delivery of possession, if the judgment-debtor has re-occupied the land immediately upon the departure of the Court's officer, then it is the duty of the Magistrate not to ignore actualities, if he finds the judgment-debtor in actual possession despite the delivery of possession.
31. There is another case in 14 cal., namely, Reid v. Richardson (at page 361) where, I consider, the correct view was taken. The learned . Judges said that they had kept in mind the circumstance, which was constantly brought be. fore them in such cases, that as between the two parties to the dispute a. 145, Criminal P. C. was being used for a purpose wholly alien to that for which it was originally intended, and one calculated to produce, in whosesoever favour it was made, very unexpected and unfair resultsin fact, that a squabble about some grass was to be turned into an important judicial decision as to the boundary of two large estates, a state of things which, they said, they regarded with great disapproval.
32. Daimulla Talukdar v. Maharulla Talukdar, 27 cal. 918, is a case where it was laid down that the Magistrate under Section 146, was not competent to do more than to determine actual possession. The law was also stated, in my opinion, with clearness and precision by Sir Lawrence Jenkins in 1900 in Pandurang ftovind Pujari's case, 25 Bom. 179 : 2 Bom. L.R. 755). That learned Judge said that the par-ties cannot be called upon to furnish a statement of their rights, nor can the Magistrate take as the basis of any action he may finally decide upon any conclusion at which he may arrive as to the respective titles of the parties. He is not at liberty to go into the merits of the claims of the parties to the dispute to a right to possess the subject thereof.
33. To the same effect are Rampini and Sharfuddin, JJ. in Kuchai Fakir v. Romesh Chandra Biswas, in (1908) 35 cal. 795 : 8 cr. L. J. 28). It was pointed out that the only question which a Magistrate has to decide in a proceeding under Section 145, is as to who is in actual possession of the disputed land. In that case the Magistrate, while holding that the oral evidence of actual possession was in favour of one party, proceeded to discuss and decide as to the legal effect of a recent order of an Assistant Settle, ment Officer awarding possession to the opposite' party, and directed the first party to be maintained in possession in accordance with such order. Their Lordships said that they considered the case another illustration of the way in which the provisions of Section 145, were abused by litigants in the mofussil and misunderstood by Magistrates who usurp jurisdiction and decide questions of a civil nature.
34. To a similar effect is Arju Mea v. Arman Mea, 7 C. L. J. 369 : 7 Cr. L, J. 336), a case decided by the same two learned Judges.
35. Sheikh Sajuddi Mandal v. F. L, Cork, 27 C. L. J. 465 : A.I.R. (6) 1919 Cal. 930: 19 cr. L. J. 681), was a case relating to mineral rights. There the Magistrate absolutely refused to look at the documents of title. The Court declined to interfere with his decision on that ground. Richardson, J. said:
If the documents were tendered merely for the purpose of obtaining a decision on the question of title, his refusal to look at them may have been entirely justified.
It was pointed out that the Magistrate under the section had to arrive at his decision without reference to the merits of the respective claims to a right to possession, and that meant the title to possession, It was further pointed out in that case that the question how far possession of a part of a coal mine is evidence of possession of the whole is primarily a question of fact.
36. Again in the Indian Iron and Steel Co. v. Banso Gopal Tewari, 32 o. L. J. 54 : A.I.R. (7) 1920 cal. 824: 22 Cr. L. J. 99), it was laid down that where what is actually in possession of the parties is not in dispute, but what has given rise to the dispute between the parties is the right to carry on boring operations in a certain mauza,, the Criminal Court has no jurisdiction to go into questions of title and possession which will arise between the various parties claiming and interested in the land both surface and underground. It was not the function of a Criminal Court to go into questions of adverse possession and of constructive possession of wide areas inferred from actual possession of limited areas.
37. To a similar effect is the decision of Jwala Prasad, J, in Mahadeo Dutt v. J. N, Sarkar A.I.R. (9) 1922 Pat. 34O : 24 cr. L. J. 263).
38. Matters came to a crisis in the Calcutta High Court about 1927. There was a disagreement between Graham J. and Commiade J. and the matter was referred to Canning, J., who held that under Section 145, Criminal P. C., what the Magistrate has got to decide is who is in actual possession. He is not bound to maintain posses-sion given through the Civil Court when such possession is merely symbolical. "Actual possession" in Section 145, means actual physical possession, that is, the possession of the person who has his feet on the land, who is ploughing it, sowing it or growing crops on it entirely irrespective of whether he has title or right to possess it: Ambar Ali V. Piran Ali, 55 Cal. 826 : A.I. R. (15) 1928 cal. 344: 29 cr. L. J. 503.)
39. It may be that that description of "actual possession" is not quite accurate for all oases such, for example, as mines. But the distinction which I have pointed out is, I think, a clear one. Actual possession however notional, however much a matter of inference, is based on certain physical acts of possession, and has nothing to do with title. Constructive possession as opposed to it is based entirely on title, and has nothing to do with any physical acts of pos-session. I find no difficulty about the distinction.
40. In the case under consideration, Cuming J. referred to a large number of decisions upon each side in the controversy, and regretted he could not refer the matter to a Full Court: He said:
If the Magistrate must maintain, as has been held in some decisions, the possession given through the civil Court, he must at once do what the section expressly says he shall not, namely, determine who hag a right to possession and to whom the civil Court has given possession.
41. The reference of the question to a Full Bench duly came next year, in Agni Kumar Das v. Mantazaddin, 56 cal. 290 : A.I.R. (15) 1928 cal. 610: 30 Cr, L. J. 69 (F.B.)), and it was heard by a Bench of five Judges including Rankin C. J. The order of reference was made by Cuming and Lort Williams JJ. The Magistrate had found actual possession with the judgment debtors and said that it was not for him to decide who was entitled to possession. The learned Judges said that looking at the strict wording of Section 145 it would seem that his decision was unassailable, and there was nothing left to argue. But there were a number of decisions of the Court which would seem to hold that, contrary to the express words of the section, actual possession does not mean actual possession, but means something else. They further said that what they were in fact referring to the Full Bench was whether the Code meant exactly what it said or whether it meant something, else.
42. Rankin C. J. in dealing with the reference spoke of the difficulties that had arisen from the doctrine that because a decree has at some time been passed inter partes and possession has at some time been delivered thereunder there is no dispute or no bond fide dispute or no such dispute as is contemplated by Section 145. He said that in his opinion, the doctrine itself and much of the reasoning upon which it had been rested were erroneous, and he much regretted, in the interest of the public peace and of the Magistrate whose duty it is to preserve the peace, that these questions had not long ago been brought before a Fall Bench in order that the jungle of decisions might be reduced to order. He referred to the list of contradictory decisions set out in Ambar Ali v. Piran Ali: 55 cal. 826 : A.I.R. (15) 1928 Cal. 344: 29 cr. L. J. 603), and with regard to those holding that the question of title could be somehow involved in the question of actual possession, he said that the contentions advanced had failed, after over 50 years, to establish themselves in our case law because they were wholly without warrant in the statute and represented an unworkable and unreason, able attempt to thrust into the section qualifications and conditions which were rejected by its letter no less than by its general intention. It was held by the Full Bench that the Magistrate is confined to the question of actual possession. Sir George Rankin noticed that there might be some rare cases in which, both parties being out of possession, the right of one party was so very clear as to make it more just and reasonable that he should not against the other under Section 107 rather than that he should attach the property so as to compel the former party to bring a suit. But there was great danger, in inviting Magistrates to act upon their view as to the right of the parties under Section 145, and jurisdiction under Section 145 or Section 146 could not possibly be affected by any consideration of that character.
43. Unfortunately this decision seems to have been as ineffective as the express wording used by the Legislature. I do not know how such cases are now conducted by Bengal Magistrates, but I know only too well the procedure in Bihar. The case begins with long statements of claim in which the partie B are more concerned with setting out the history of their dispute and their respective claims to title than their claims to actual possession. They are allowed to do this, and in practically every case the question of title is dragged in. Then the proceedings pursue a slow course lasting months or even years, I seem to remember one case under Section 145 which lasted 12 years. Eventually in a lengthy judgment the Magistrate deals with the title elaborately, and then with the actual evidence of possession in two or three lines. Only too frequently he uses such expressions as "the oral evidence is not of much importance in this case," "the oral evidence is unsatisfactory on both sides," "the oral evidence is more or less equally balanced." He then proceeds to prefer the evidence of one aide or the other in accordance with his view of the merits of the title, and not un often bases his decision upon the fact that months or even years previously there has been a delivery of possession in favour of one party, which, of course, the other contends was "balabala" or only nominal.
44. This is the use to which Section 145 has been almost universally put with, in my opinion, lamentable results. Hard-worked Magistrates spend a large portion of ill-spared time doing work more fitted to a Munsif. The case is dragged on and on. Such proceedings would be entirely ineffective to preserve the peace but for the fact that the Magistrate generally makes a provisional attachment of the property in the beginning with the result' that large areas of property unnecessarily remain attached for years on end. Nothing could be further from what was contemplated by the Legislature in framing the section, as I understand it. Is it not preposterous that proceedings designed a a summary remedy for preserving the peace pending reference of their dispute by the parties to the civil Court should themselves assume the dimensions of a civil suit, last as long and become well-nigh as complicated ? Is it too late to put things right; to reform the procedure under Section 145 so that the decisions may be prompt and uncomplicated by matters of title and litigants may be debarred from seeking cheap decisions in their civil disputes at the expense of hard-worked Magistrates' time? Are we bound now by cursus curies, ? In the first place, decisions have not been unanimous, as I have shown. There has been no Full Bench case in Patna similar to that in Calcutta. In the second place, as Sir Lawrence Jenkins pointed out in the ease of In re An Attorney, [The correct names of parties in this case are Hume v. Poresh Chunder GhoseEd.] 41 cal. 446, 457 : A.I.R. (1) 1914 Cal. 597: 15 Cr. L. J. 49 (S.B.)), "not one jot or one tittle can be taken away from or added to the plain and express provisions of the Legislature by any decision of the Court." In the third place, what exactly is this doctrine of cursus curia Does it not mean merely this that where a certain view has been taken in a long series of decision a over a long period and has become the basis upon which many titles have become settled, then that view should continue to prevail despite the fact that two views may be possible ? Has it any application to a matter like the present where we are dealing with' proceedings of a quasi-judicial nature, there is no question of any title being unsettled, and the prevailing view has had highly undesirable consequences ? The doctrine of cursus curies, in my opinion, should never stand in the way of putting an end to an abuse or preventing a remedy where things are manifestly wrong. Where reform is made the slave of authority, the result is stagnation. The ends to be attained by enjoining upon the Magistrate a procedure strictly in accordance with the wording of the section are an important, that in my opinion, we ought not to shrink from that course even now. Magistrates should be told : l) That they are to see that the statements of claim are confined to questions of possession. (2) That they must strictly follow the wording of the section and make their decision without any reference to the merits of the respective claims to title. They are to decide only the question of actual possession upon the evidence as to actual possession; and in considering that evidence they must not let themselves be biased one way or the other by their opinion on the question of title. (3) In suitable cases, as an inference of fact, the Magistrate may find actual possession where it cannot be said that there is complete physical possession, all the time, of the whole; but any inferences he draws must be inferences from physical facts and physical acts, and not from questions of title. Moreover, the criteria which he uses in judging the evidence of both parties must be the same, and must not . be influenced in favour of one party by his opinion of the title.
45. In order to prevent any possibility of misunderstanding, it is perhaps advisible to explain two things : 1) My analysis of the position and the observations I have made have no reference to and are not intended to relate to cases where the title is not in dispute. If there be such case if they ever occur they will be extremely rare. My experience is that disputes to possession are invariably based upon rival claims to title. Even if there is a decree in favour of one contestant, the other will claim that he is not bound by it or that it is vitiated by fraud or something of the sort. It would be clearly understood, however, that where there are no rival claims to a right to possess the subject-matter of dispute, then the section contains nothing debarring the Magistrate from referring to the title, should that serve any useful purpose. (2) Nor do I say that the Magistrate is debarred from referring to a delivery of possession, and coming to a decision as to whether it was effective or not. Delivery of possession is a matter entirely distinct from title, though it may follow a decree for title. The Magistrate, however, will refer to it merely as a fact, and it is a fact which undoubtedly may in proper oases be used as1 some corroboration of the witnesses whose testimony is in accord with the state of affairs resulting from an effective delivery of possession. It is a relevant fact in deciding the question of possession that at some previous time one party had obtained delivery of possession and that fact will cast some onus upon the opposite party to show that the possession brought about by the delivery did not continue. This is in no way inconsistent with my view that the Magistrate must not refer to the merits of rival claims to title or use any opinion he may have formed upon that matter to reinforce the evidence of one party or the other.
46. It remains to deal with Ranchi Zamindary Company, Ltd. v. Maharaja Pratap Udainath Sahi Deo, 18 pat. 215 : A.I.R. (26) 1939 pat. 209: 40 Cr. L. J. 631). This was a ease of a dispute concerning the possession of bauxite ore under a hill situated in village Bhusar. The second party was found to have worked bauxite ore in a portion of the field. All that the first party, the Maharaja of Chota Nagpur, had done was to grant mining leases in certain villages in the vicinity. It was found that as regards village Bhusar he had neither granted any lease nor attempted to work minerals in or adjacent to the village. The Magistrate found the posses. sion of the second party with regard to the area actually worked by him. With regard to the remainder, he examined the question of title which was strongly disputed, came to the conclusion that it was in the first party, and applying the principle in favour of the true owner that possession follows title, he found the possession of the first party over the remainder of the minerals in the area, and ordered its maintenance. This order was upheld, and in my opinion, it web wrongly upheld. In the first place, a distinction was wrongly made between the possession of a trespasser and a true owner in proceedings under Section 145. It was held that the Magistrate was right in holding that the second party was in possession only of the area actually worked, because a trespasser wrongfully work, ing minerals is in possession only of such minerals as he has actually mined, whereas if the owner of unworked minerals under a defined area begins to work minerals in that area, he can properly be said to be in actual physical possession of the whole of the minerals in that area. Even the granting of a lease to a third party which led to no working, and was a lease not for the area but a neighbouring area, was held in the case of the first party to afford a basis for finding him in possession of the whole of the minerals. The application of different criteria in the evidence of the two parties, in accordance with the Magistrate's decision as to where the title lay and which was the true owner, while right in its proper sphere, was, in my opinion, wholly inappropriate in proceedings under Section 145, Criminal P. C.
47. Secondly, it was held that the Magistrate was right in going into the question of title, coming to a decision as to where it lay, and applying the principle that possession follows title in favour of the first party. In this regard the decision was also, in my opinion, wrong. Trevor Harries C. J. said (p. 223):
Unworked minerals are not capable of such possession as is the surface of land or a house, Land can be cultivated; house can be occupied; but unworked minerals cannot even be occupied. Minerals can be possessed by actual working; but in this case a large portion of the minerals area had admittedly not been worked, In such a case it was in my view necessary that the learned Magistrate should consider who was the owner of these minerals in order to assist him in coming to the conclusion as to who was in possession of the same. ... In the case of unworked minerals, possession follows title and the owner of unworked minerals is in possession of them though he is not actually engaged in working them. (Italics mine). He is in a position to work them when he so desires, and he can lease them to others who may work them.
It will be apparent from the preceding portion of my judgment why I consider these observations wrong. Actual possession of minerals in the ground, as I have said, must always be more or leas notional, but it has nevertheless nothing to do with any inference from title. The inference must be from acts in regard to the property.
48. The Magistrate in the present case has expressly followed, Ranchi Zamindari Go. Ltd. v. Pratap Udainath Sahi Deo, 18 pat. 215 : A.I.R. (26) 1939 Pat. 209: 40 Cr, L. J. 631), and has done just what was done in that case. His order, in my opinion, cannot be supported. There was some discussion as to whether we should make a remand with directions so that he may more precisely consider the question of possession in the light of our observations. I have come to the conclusion that a remand would serve no useful purpose because the Magistrate's findings are sufficiently clear to make it apparent that there was no such evidence of possession as would justify an inference that either of the parties was in actual possession even of the minerals of the three villages forming the subject-matter of the proceedings. The acts found to have been done by each were extremely fragmentary. None is found to have done any mining work or at least any work worth the name. What was done was wholly different from what the Privy Council had to consider in Nageshwar Bux Bay v. Bengal Goal Go. Ltd., 10 Pat. 407 : A.I.R. (18) 1931 P. C. 186). A remand could only lead to the Magistrate again finding that neither party was in actual possession unless he once again decides the title which I say without hesitation, he must not presume to do.
49. A question was also mooted whether we should direct the attachment of the property under Section 146, neither party being in actual possession. An attachment would in turn inevitably lead to the attachment of all the minerals of the entire 53 villages of the Pargana which would be, in my judgment, both unnecessary and unwise. It might well adversely affect the development of the area for years to come, whereas the danger to the peace, if any, can be dealt with in other ways, Moreover, the present position is that no one knows what minerals exist and where they are. It would have to be an attachment of all minerals, if any wherever they exist, an attachment in short, of purely hypothetical minerals. This would come very near to an attachment of a mere incorporeal right to prospect, and to mine in the event of minerals being found. Such an order, and specially in respect of a large area, is, in my judgment, undesirable.
50. In the result, therefore, while making the rule absolute, I would merely set aside the Magistrate's order, and also the attachment of the three villages provisionally made by him. It is of course open to him to proceed under Section 107 against any persons found attempting to create a breach of the peace.
51. I had hoped by this judgment to accomplish something I deemed urgently neededa reform in the current procedure under Section 145. In that I have failed, since my learned brethren do not see eye to eye with me. Nevertheless I have decided to deliver this judgment as it stands, as it gives me the opportunity to place on record views which I have long held.
Sinha, J.
52. I agree with my learned brother Meredith J. that this application should be allowed; but as I differ from him on the form of the order of this Court and the reasons therefor, I should give those reasons in some details.
53. This is a dispute between the first party, who claim under the Maharaja of Chota Nagpur, who is, admittedly the proprietor of the villages in question, as parts of a large revenue-paying estate, on the one hand, and the second party, the petitioners in this Court, who claim under the khorposhdar, tenure-holder, under the Maharaja. As between the Maharaja and his khorposhdar aforesaid, the mineral rights in respect of the entire tenure formed the subject-matter of a litigation between them, which went up to His Majesty in Council. The judgment of this Court in that suit is reported as Maharaja Odai Pratap Nath Sahi Deo v. Maharaja Kumar Jagat Mohan Nath Sahi Deo, 6 Pat, 638 : A.I.R. (15) 1928 Pat. 66). This Court set aside the decision of the trial Court, and granted a decree to the plaintiff-appellant in these terms:
The plaintiff is entitled to a declaration of his title to the mines and minerals in pargana Tori and to an injunction restraining the defendants other than defendant 4, from entering upon, working or removing any mines or minerals within the said pargana or from interfering with the plaintiff, his servants, or agents in doing all acts reasonably incident to the enjoyment of the plaintiff's right in the mines and minerals in the said pargana.
The defeated defendant went up in appeal to His Majesty in Council. The judgment of their Lordships of the Judicial Committee of the Privy Council is reported as Kumar Jagat Mohan Nath Shahi Deo v. Pratap Udai Nath Sahi Deo, 10 Pat. 877 : A.I. R. (18) 1931 P. C. 302). Their Lordships of the Judicial Committee dismissed the appeal, and upheld the decision of this Court decreeing the plaintiff's suit. Hence, on the question of title it is crystal clear that the landlord of the first party in the proceedings who are the opposite party in this Court, was found to have title to the minerals in question, as against the landlord of the second party, petitioners in this Court. On this part of the case, Mr. P. E. Das relied upon an unregistered document of the year 1893. It is enough to quote the following observations of their Lordships of the Privy Council bearing on that transaction:
The third point, namely, as regards the claim that by virtue of a certain transaction which took place in the year 1893, the Maharaja then vested the minerals in the Kumar, the document which is relied upon is one which contains a recital of an agreement entered into between the Maharaja and the younger brother in the year 1893. Their Lordships have carefully considered the terms of that recital, and in their opinion, the agreement therein referred to and the transactions which then occurred, clearly did not amount to any creation of title in the Kumar. On the contrary, the agreement and the transactions which then occurred are evidence of an assertion by the Maharaja of his title at that date. Accordingly that point equally fails.
Hence, the present is one of those cases where the question of title if it can be looked into incidentally in a proceeding under Section 145, Criminal P. .C., presents no difficulty even to a Magistrate who is called upon to decide as between the conflicting claims of the parties to actual possession of the property.
54. It must also be remembered that the proceedings relate to mineral rights in the three villages within the pargana Tori, and not specifically to the right to dig for coal. As will presently appear, this aspect of the case has been lost sight of by the learned Magistrate who had dealt with the case in the Court below. "Minerals rights" mean the rights to "All substances of commercial value which can be got from beneath the earth, either by mining or quarrying, except common clay" [see Wharton's Law Lexicon). In the case of Bhupendranarayan Sinha v. Rajeshwarprasad Bhakat, 59 cal. 80 at page 90 : A.I.R. (18) 1931 r. o. 162), their Lordships have observed:
It is not disputed before their Lordships that the ochre in the present can be in a mineral; it is indeed established by the evidence; and in this country almost every kind of clay of commercial use has been so recognised.
Hence for the purpose of the present case, [any dispute between the parties relating to whether (sic) may be obtained by quarrying or mining, in the nature of ballast or sand stone or gravel or things of that kind, could come within the description of "minerals" and any operations taken by either of the parties with a view of digging for such minerals would be within the mischief of these proceedings. Mr. Das's first argument, apart from his objection to the regularity of the proceedings for want of a statement of the grounds of his satisfaction by the learned Magistrate that there was an apprehension of a breach of the peace, was that a dispute regarding minerals rights does not come within the purview of Section (sic), Criminal P, C. His contention was that these proceedings were wholly inappropriate to the present dispute between the parties. Mr. Das referred to the decision of a Division Bench of this Court in the case of Ranchi Zamindary Company ,Ltd. v. Maharaja Pratap Udai Nath Sahi Deo, is Pat. 215 : A.I.R. (26) 1939 pat. 209: 40 Cu. L, J. 631), in which he appeared for the winning party whose possession was upheld by this Court. In that case, he contended before us, this precise question bad not been raised by counsel for the petitioners in the High Court. Harries C. J., who delivered the judgment of the Division Bench, made the following observations:
It has not bean contended by either party that proceedings under Section 145, Criminal P, C., are not applicable to possession of minerals and indeed it would be difficult for either party so to contend. It has been held by this Court and by the Calcutta High Court that proceedings under Section 145, Criminal P. C, Often be instituted. in cases where disputes have arisen relating to the pos-. session of minerals. In the case of Sundar Mall v. Jhari Lai, 2 P. L. J. 637 : A.I.R. (4) 1917 Pat. 183: 18 Cr.L.J, 756) a Branch of this Court upheld an order passed by a Magistrate, under this section regarding the possession of certain mica deposit. In Andrew Yule and Go. v. A. H, Shone 4 P. L. J. 154 : A.I.R. (6) 1919 Pat. 210: 20 Cr. L. J. 199) Roe J. held that proceeding under Section 145, Criminal P. C, could be taken in cases of disputes concerning the possession of coal mines or seams of coal. In Bimla Prosad Mukharjee v. Tata Iron and Steel Co. Ltd, 35 C. L. J. 456 : A.I.R. (9) 1922 Cal. 83: 24 Cr. L. J. 108) a Bench of the Calcutta High Court held that proceedings under Section 145, Criminal P. C., could be taken in a case where a dispute existed as to mining rights. Having regard to these authorities, I am bound to hold that proceedings under Section 145, Criminal P. C, are appropriate in cases of disputes as to the possession of minerals.
Mr. Das assailed that conclusion of the learned Chief Justice, firstly on the ground that that question was not raised for decision in that case, and, therefore, those observations are in the nature of obiter dicta; and, secondly, he contended that the decisions relied upon by the learned Chief Justice on that part of the case are not good law or are mere obiter dicta. In the case of Sunder Mall v. Jhari Lai, 2 P. L. J. 637 : A.I.R. (4) 1917 Pat. 183: 18 Cr. L. J. 756), Mr. Das points out, the argument on behalf of the petitioner in the High Court was directed only to the mica stored in the godown and not to the competency of the proceedings in respect of the mica mine itself. In the case of Andrew Yule & Go. v. A. H. Shone, 4 P. L. J. I6i : A.I.R. (6) 1919 pat. 210: 20 Cr. L. j, 193) Ro9 J. sitting Bingly, repelled Mr. Das's contention in that case before him that Section 146, Criminal P. C, did not apply to mining rights. Roe J. referred to the change in the wording of the section in the different Codes which succeeded one another, and held that the present B. 145 is intended to cover all profits derivable from land or water. Mr. Das contended that this decision of the single Judge of this Court is not good law. As regards the case reported in 35 O. L. J, 456 ; (A, I. B. (9) (1922) cal. 83: 24 Cr. L. J. 108), Bimla Prosad Mookerjee v. Tata Iron and Steel Go,, Ltd. Mr. Das contended that it was no considered decision of the Court, but that the point was really conceded at the Bar. It is true that Walmaley J. proceeded on that concession, but Suhrawardy J. is reported to have come to the conclusion that the definition of "land" as given in the Code of Criminal Procedure of 1908 is wide enough to cover mining rights and even prospecting or boring licenses. Mr. Das invited our attention to the decision in the case of Bejoy Nath Chatterji v. The Bengal Goal Co., Ltd., 23 W. R. Cr. 45, in support of his contention that Section 145, Criminal P. C, is not applicable to a dispute relating to mining rights. But the learned Judges in that case do not appear to have gone to that length; they have only decided that, in the circumstances of that case, proceedings under Section 530 (equivalent to the present Section 145 of the Code) were not appropriate. Another case very strongly relied upon by Mr. Das is the case of the Indian Iron and Steel Co, v. Banso Gopal Tewari, 32 C. L. J. 54 : A.I.R. (7) 1920 cal. 824: 22 Or. Ii. J. 99). In that ease, Sir Asutosh Choudhri J. held that the case before him involved complicated question of title and possession and of the difference between actual and constructive pos-session of mines and minerals and of disputes between the zamindar and the patnidars as also between the patnidars, mokarridars, lakh-rajdars and the actual tenants. Hence, in the circumstances of that case, his Lordship directed that the proceedings under B. 145 of the Code be sat aside, and action under Section 107 of that Code taken if thought so necessary by the Magistrate. I do not read that decision as holding that proceedings under Section 145 of the Code should never be initiated in order to determine the question of disputed possession as regards mines or minerals. I take that decision as only laying down that the Magistrate should not have taken upon himself the duty of deciding complicated questions of title and possession as between a number of contending parties. Mr. Das also relied upon the Full Bench decision of the Calcutta High Court in the case of Agni Kumar Das v. Man-tasaddin, 56 cal. 290 : A.I.R. (15) 1928 cal, 610: 80 cr. L. J. 69 (p. B.)). In that case their Lordships of the Full Bench of five Judges held that the words "actual possession" in Sub-section (l) of Section 145, mean actual physical possession even though wrongful, But that case does not refer to disputes as regards mining rights; nor does it lend any support to Mr. Das's contention on this part of the case. That case is certainly in Mr. Das's favour on another part of the case in so far as it holds that recent possession even of a trespasser has got to be recognised by the Court while determining the question of possession under Section 145 of the Code. Mr. Das has not been able to place before us any decision holding categorically that under no circumstances can disputes as regards mining rights be the subject matter of a proceeding under Section 145 of the Code in the sense that the Magistrate has no jurisdiction to determine such a dispute as regards possession. It is one thing to say that a Magistrate has no jurisdiction to decide a dispute and quite another to contend that in a pro-seeding relating to disputes as regards mineral tights the Magistrate may find it very difficult to decide the dispute one way or the other on account of paucity of evidence as regards actual working of the mines or minerals. Hence, as at present advised, I am not prepared to' go to the length of holding that under no circumstances can disputes as regards mineral rights be properly the subject-matter of a decision under 43. 145 of the Code.
55. I agree with my learned brother, Mere- dith J. that the proceedings under B. 145. Criminal P. C, are concerned with determining the question of actual physical possession as distinguished from constructive possession; but I do not agree with him in so far as he has observed that under no circumstances should a Magistrate advert to the question of title. It is not difficult to think of a case where there has been a litigation between A and B as regards title and possession in respect of a culturable piece of land. Let us suppose that the ultimate Court of appeal has decided the dispute in favour of A as against B. The Court declared as title, and granted the claim for recovery of possession. The decree was executed, and A was put in possession of the property, say in the month of January 1938, when the paddy standing on the land had already been removed. No agricultural operations would ordinarily begin in case of such a paddy land until June or July. When A goes to plough the field, b again resists A's agricultural opera, tions, thus leading to a dispute as regards possession of the property. In due course, the police reports an apprehension of a breach of the peace between A and B, and the police report showed that the land had been ploughed up. In the proceedings under Section 145, Criminal P. C., started on such a police report, the Magistrate finds that the evidence of actual ploughing on behalf of both the parties A and B is equally balanced, and he is at a loss to determine which party's evidence should be preferred. In such a case, in my opinion, it is permissible for the Magistrate to refer to the recent delivery of possession in favour of A, and decide that A was in possession of the field in question, and not B. Such a decision would certainly be a decision as regards actual physical possession based on tangible evidence of possession but strengthened by the fact that, only about six months before the apprehended breach of the peace, A had been put in physical possession of the property as a result of the delivery of possession in his favour through the Civil Court. Or we may assume that, in the case just referred to above A found that the land had been for several years continuously, under sugarcane, and had thus become impoverished. On taking possession, A decided to leave the land fallow for the whole year so as to improve the fertility of the soil. The next year, tie goes to plough up his field, and he is again opposed by his old adversary B. There is a report of an apprehended breach of the peace by the police to the Magistrate, The Magistrate draws up proceeding under Section 145 of the Code. The Magistrate finds, that, -in the previous year, A had been given physical possession of the property as against B; but he does not find any act of possession- having been exercised by either party at about the time the dispute arose. In my opinion, it is open to the Magistrate deciding the dispute under the section to refer to the question of title, and decide that A was in possession though he had left the land fallow for a whole year. All this time A was entitled to exercise such acts of possession as he liked, but, in the circumstances, had left the land fallow in order to allow it to recuperate. The learned Magistrate's judgment in such a case, in my opinion, is not based on the theory of possession following title but on the tangible fact that only the year before A had obtained possession through Court as against B who had been found to have no pretence to title. If, in the case last supposed, the Magistrate found that, as a matter of fact, B had ploughed up the field and has sown some crop on the land, he would be bound to declare B's possession in spite of the fact that A had obtained possession as against B, in the previous year. Thus Section 145, when it lays stress on actual posses, sion, really contemplates that, if there is a com-petition between a party who has actual physical possession of the property in dispute and a party who claims title to the property but has no tangible possession thereof, the Magistrate holding the enquiry under the section must declare the possession of the party in actual possession, though he may have no presence to title. In other words, the section is intended to protect actual possession even though it may be of a trespasser and even as against a party who may have established his title and possession to the property in the Civil Court but at a time too remote to attract the operation of the proviso to Sub-section (4) of Section 145 of the Code.
56. In this connection it has got to be noted that ."actual possession" and "constructive possession" are terms which are not mutually exclusive. A person may be deemed to be in actual possession of the property by reference to the theory of constructive possession, as for example, when a person is said to be in possession of a unit of property which is too big to be physically occupied by the possessor at a given time, and, therefore, possession of a part means the possession of the whole. Similarly, in the case of minerals, the ground underneath may have several strata of the same minerals or of different kinds of minerals, and it is not possible for the possessor actually to possess all the strata at the same time. But the law certainly deems all the strata of minerals to be in possession of the person who is in possession of the topmost layer or stratum, certainly in the ease of the rightful possessor, though not necessarily in the case of a trespasser. Possession should not be confused with occupation. A person may be in actual possession of his property without occu- pying it for a considerable time. I have a house in my native village, far away from Patna, which I do not occupy for months together. But still it is in my possession. I may have my house with large grounds of many acres, only a small fraction of which is either occupied by buildings or by flower beds or by kitchen gardens; but I am in possession of the whole because I have the right to utilize the whole in any way I like. If anybody were to question my possession in respect of the unoccupied portion of the grounds in a proceeding under Section 145 of the Code I am entitled to be declared in possession unless my adversary succeeds in proving that he had ousted me from possession of that portion by actually occupying it. But, failing such a proof by my adversary, I must be deemed to be in actual possession, though I have not occupied it for a considerable length of time.
57. Mr. P. R. Das had contended before us that the proceedings under Section 145, Criminal P. C, have absolutely nothing to do with constructive-possession as distinguished from actual possession. This contention is certainly correct in this sense, that, if there is a contest between a party in actual possession of a property and another party who is only in constructive possession and. no more, the dispute must be determined in favour of the party in actual possession. But the term "constructive possession" has not been used in Courts only in one sense. The term "constructive possession" in the ideal sense means possession in law but not possession in fact, that is to say, though a party may not be in possession of the property, the law attributes to him the advantages and results of possession fictitiously,, by applying the legal fiction that possession follows title, For example, land belonging to A abutting a river may remain submerged under water for any number of years, and A is deemed to be in possession of the land, though, as a. matter of fact, he has not been in possession of the same for a series of years. In such a case, there can be no proceedings under Section 145, Criminal P. C, as the land is not capable of being: possessed in the ordinary sense of the term. Given all the will in this world, the owner cannot cultivate the land, as it used to be, before its submersion. But the term "constructive pos-session" is also used with reference to a case-where the owner of the property is in possession of a small portion and the rest of the property is said to be in his constructive possession by applying the rule that possession of a part is possession of the whole, if they constitute one unit of property. The concept of possession has two-elements, namely, (l) the mental or the subjective, and (2) the physical or the objective. Both, ancient and modern jurists agree in holding that. the mental element of possession is the "animus," and that the physical element is the "corpus." The two must unite in order to produce the legal concept of possession. I may own a property with the idea of exercising control over it to the exclusion of others. I may not actually occupy the property. But still I am in possession of it in the sense that, if anybody else were to invade my right to the property, I will be prepared to defend it with all my might. Hence, so long as I have the animus possedendi in respect of the corpus, and have effectively kept all intruders out of the same, I am in possession of the property, even though I may not have put it to a beneficial use by either occupying it myself or by leasing it out to others for their beneficial use. But, if the true owner has allowed a trespasser effectively to intrude upon the property, be has lost possession of it for the time being, and, though he may have the animus, he has not the corpus, The possession of a property must vary with the nature of the property, and, therefore, the question of actual physical posses-sion has to be answered with reference to the nature of the particular property in question. This concession is made not only in favour of the rightful owner but even to a wrong-doer. For example, in the case of Secretary of State for India in Council v. Devendra Lai Khan, 61 cal. 262 : A.I.R. (21) 1934 P. C. 23), their Lord-ships of the Privy Council allowed the plea of adverse possession to prevail in respect of a fishery in a large navigable river in the district of Midnapur, and made the following observations:
It may be added that it is not necessary, in order to establish adverse possession, that the proof of acts of possession should over every moment of the requisite period....The fact of possession may be continuous though the several acts of possession are at considerable intervals.... The nature of the requisite possession must necessarily vary with the nature of the subject possessed. The possession must be the kind of possession of which the particular subject is susceptible. The Grown in the case of a fishery belonging to it exercises its rights by granting leases or licenses to fish; it does not itself fish. Consequently, the granting, by a person other than the Crown, of leases or licenses to fish, in the case of a fishery, which prima facie belongs to the Crown, is evidence of the usurpation by that person of the distinctive rights of the Crown and in thus most significant evidence of adverse possession.
The same result appears to have been arrived at by their Lordships of the Privy Council in the case of Nageshwar Bux Roy v. Bengal Goal Co. Ltd.,10 pat. 407 ; (A.I.R. (18) 1931 p. c. 186) which related to minerels in a whole village. The defendant company had taken lease of the surface, and believing that they were entitled to the minerals underneath, carried on mining operations in various parts of the village, though it had not been proved that they had worked any particular pits for more than twelve years. Still their Lordships gave effect to the contention of the defendant company that they had acquired title to the minerals by adverse possession. In this connection, their Lordship made the following observations:
Now there is undoubted authority for the proposition that where a person without any colour of right wrongfully takes possession as a trespasser of the property of another, any title which ha may acquire by adverse possession will be strictly limited to what he has actually so possessed. The maxim tantum prescriptum quantum possessum is rigorously applied to him. And it has been held in the case of mines that there is no presumption in law that the possession of part of a-seam infers possession of the whole seam, much less of all the seams in the mineral field in which part of seam has been worked. On the other hand, possession is a question of fact and the extent of the possession may be an inference of fact. Low Moor Co. v. Stantely-Coal Go. (1876) 34 L. T. (N. S) 186; McDonnell v. McKinty (1847) 10 Ir. L. H. 514; and Ashton v. Stock (1877) 6Ch. D. 719 : 25 W. E. 862).
In considering the character and effect of acts of possession in the case of a mineral field, it is necessary to bear in mind the nature of the subject and the. possession of which it is susceptible. Owing to the inaccessbility of minerals in the earth, it is not possible to take actual physical possession at once of a whole-mineral field: it can be occupied only by extracting the minerals and until the whole minerals are exhausted the physical occupation must necessarily be partial. The real question is what in fact has been possessed.
58. These cases illustrate the difficulty of drawing the line of demarcation between "actual physical possession" and "constructive possession," and are authorities for the proposition that in each case the Court hag to determine the question of possession as a question of fact. In the case of a rightful owner, slight evidence of possession may be enough to uphold his claim to actual possession: on the other hand, in the case of a wrong-doer, such a slight evidence of possession will naturally not be accepted as evidence of actual possession, though in his case also law will not insist upon his proving actual occupation, of the property every moment of the requisite period or in respect of every inch of the ground-claimed by him.
59. Hence, in actual practice, where the Court has to weigh the evidence of possession, the controversy has to be determined with reference to the particular facts of that case. In a proceeding under Section 145, certainly the criminal Court is not-competent to determine the question, of title, and such a Court will, therefore, be fully justified in refusing to go into evidence of title;, but, where the question of title has been deter, mined once for all in favour of one or the other party to the litigation, the criminal Court is not precluded from taking cognizance of the fact that title has been determined in favour of that party, and that the question of actual possession if necessity arises, may be determined with reference to the decision of the civil Court, which is binding between the parties. Not only recently but as long ago as 1866, a Division Bench of the Calcutta High Court in the case of Shama Soondery Debia v. Messrs,'Jardine, Skinner & Co., 6 w. R. or, 10 held that a Magistrate acting under Section 318 (corresponding to the present S. we), Criminal P. C. should respect the possession delivered by the civil Court in execution of a decree for recovery of possession, It is true that another Division Bench of the same Court in the case of Amrithnath Jha v. Ahmad Reza, 6W.B, Cr. 61 deprecated the practice of Magistrates acting under Section 318 (as it then wa3) determining questions of title. But it is one thing for a Magistrate to determine a question of title and quite a different thing for him to respect the determination of the question of title by a Court of competent jurisdiction, which determination is binding on the parties before the criminal Court. But, as I have already indicated, it is not competent to a Magistrate under the provisions of Section 14S, Criminal P. C. to disregard actual pos-session of a trespasser and to declare the possession of the true owner only with reference to his title and by applying the rule of possession following title.
60. It is true that, in many decided cases in the Calcutta High Court as also in this Court, Magistrates have been tempted by the parties to go into complicated questions of title and to determine those questions on documentary evidence. Such a procedure is certainly not justified by the provisions of Section 145 of the Code. Many of such cases have been referred to in the case of Ambar Ali v. Piran Ali, 55 cal. 826 : A.I.R. (15) 1928 Cal. 844: 29 Cr. L. J. 503). That case first came before a Division Bench consisting of -Graham and Cammiade J J. Graham J.' was inclined to give preference to the title and possession as determined by the civil Court in favour of one party, to the actual possession as found by the learned Magistrate in favour of the other party. Cammiade J. on the other hand, took the view that the Magistrate was bound to uphold the possession of the person whom he found to be in actual possession except where the rightful party had been busted from possession within two months of the proceedings. On this difference between their Lordships, the matter came up before Cuming J. who noticed the two lines of decisions relied upon on either side, and naturally would have referred the case to a Pull Bench but for the fact that he was sitting singly, He, therefore, chose to disregard the precedents and to decide the case with reference to the provisions of the section itself. In so far as he decided that the actual physical possession even of a trespasser has got to be declared in preference to the established title of the opposite party, I would respectfully agree; but I venture to think that he was not entirely correct when he made the following observations in the course of his judgment:
What then does actual possession mean ? As I understand it, it means actual physical possession. It means the possession of the person who has, if I may put it so, his feet on the land, who is ploughing it, sowing or growing crops on it entirely irrespective of whether he has any title or right to possess it.
These observations may have been correct with reference to the facts of the case before his Lordship: but they are not true in all cases. As I have tried to point out above, a person may be in actual possession of his property without having "his feet on it," To the same effect is the Full Bench decision of the Calcutta High Court in the case of Agni Kumar Das v. Mantazaddin, 56 cal. 290 : A.I.R (15) 1Q28 cal. 610: 30 Cr. L. J. 69 F. B.). In that case also their Lordships have pointed out that the actual physical possession of a trespasser has got to be declared even though there may have been a decision on the question of title in favour of the other contending party.
61. The case nearest to the present case decided by a Division Bench of this Court is that of Ranchi Zamindari Go. Ltd. v. Maharaja Pratap Udainath Sahi Deo, 18 Pat. 215 : A.I.R. (26) 1939 Pat. 209: 40 Cr. L. J. 631). Sir Trevor Harries C. J., who delivered the leading judgment of the Court, held that the Magistrate dealing with the case under Section 145 in respect of minerals could properly consider questions of title in order to help him in ascertaining who was in possession at the relevant date. He also held that the owner of unworked minerals must be held to be in actual possession of the same, if he is in a position at any moment to work them or to permit others to do so. He also pointed out that the owner of unworked minerals in a defined area can properly be said to be in actual physical possession of the whole area, if he has exercised acts of possession, however slight, in respect of any portion of the property. But his Lordship pointed out further that a trespasser wrongfully working minerals can be said to be in actual physical possession only of such of the minerals as he has actually mined. His Lordship also observed that, if the owner of the minerals granted mining leases in respect of portions of the property, such instances of demising portions of the property are good evidence of actual physical possession. Mr. P. E. Das, who obtained the judgment in that case, has argued before us that that decision is not correct in law. He has contended that the decision of the Division Bench is vitiated by the confusion between "possession" and "actual possession." But, in my opinion, possession of a true owner is actual possession unless that possession has boon ousted by the. coming in on the property of somebody else even without title. In that case the learned Chief Justice upheld the decision of the Magistrate in as far as he had declared the possession of the trespasser in respect of portions of the disputed property in which the minerals had been actually worked. Hence, it cannot be said that in that case actual possession of a trespasser was disregarded. But Mr. Das went further, and contended that, in so far as the learned Chief Justice upheld the possession of the true owner by appealing to the doctrine that possession followed title, his decision was bad in law. But in my opinion, it is not absolutely correct to say that the learned Chief Justice declared the true owner's possession only by applying the doctrine of possession following title. His Lordship in the course of his judgment, has pointed out the fact that the true owner had exercised his possession by granting a lease. But it was contended the lease waa in respect of another village. This argument ignores the position that the owner had a number of villages constituting his estate, and, therefore, a single village was not the unit of property held by him. A rayat is in possession of his holding by being in possession of a part of it, a tenure-holder similarly is in possession of his tenure, and likewise the proprietor is in possession of his 63tate, and, if his estate comprises a number of villages, he will be in possession of the whole, if he is in possession of a part. It may be that his Lordship in that case relied upon very slight pieces of evidence in support of the finding of possession arrived at by the learned Magistrate. But that must depend on the circumstances of each particular case. As already pointed out, in the case of Secretary of State for India in Council v. Devendra Lai Khan, 611. a. 78: 61 Cal, 262 : A.I.R. (21) 1934 p. G. 23) their Lord. ships of the Privy Council held that the granting by the zamindar of leases or licenses to fish in the waters in question is the most significant evidence of adverse possession, and went to the length of observing that possession so evidenced is not deprived of its exclusive character by some evidence of isolated acts of fishing by the general public. They further pointed out that evidence of acts of possession in a part of the river adjoining the part in dispute is admissible if there is a common character 'of locality. If these considerations could be prayed in aid of a wrong-doer, as their Lordships appear is have done in that case, such considerations must neoe3sari)y be much stronger in favour of the rightful owner1. If the Division Bench ruling of this Court referred to above has decided that the Magistrate can declare possession in favour of the true owner without his exercising any act of possession in preference to the actual posses-sion of a trespasserand I do not think it has done sowith all respect I must disagree. But if the case can be construed as having uphold the possession of the true owner in respect of portions which had not been proved by the trespasser to have been actually occupied by him, in conjunction with slight evidence of actual possession by the former, I do not see any error of law in such a decision.
62. Unless Mr. Das's argument that the proceedings under Section 145 of the Code were entirely without jurisdiction being in respect of mineral rights, were accepted to be well-founded in law, it must be held that the proceedings had been properly drawn up. If that is as, the proceedings must be terminated in accordance with the procedure laid down in Sections 145 and 146, Criminal P. C; either the first party was in possession or the second party, or the one was in possession of Borne portion and the other in possession of the rest. If the learned Magistrate found that neither party was in possession, he would be entitled, under the provisions of Section 146, to attach the subject-matter of the proceedings. Hence, it will not do simply to set aside the learned Magistrate's orders in limine, and leave the parties again to fight out the matter. Proceedings under Section 144, Criminal P. C, evidently will not be appropriate in the circumstances of this case, as such an order can be in force only for two months, and only against the parties actually before the Court. It is settled law that repeated proceedings under Section 144 in respect of the same subject-matter cannot be taken. Failing proceedings under B. 144, the only other recourse left to the parties will be proceedings under Section 107, Criminal P. C. But such a proceeding has its own limitations, It is not in respect of property but of persona who have to be restrained from acting in an unlawful manner. Proceedings under Section 107, Criminal P.C., are taken against persons, and can be only for a limited period of one year. A litigous party may easily nullify a proceeding under B. 107 by employing another set of persons to do the same thing. Hence, in my opinion, neither proceedings under Section 144 nor under Section 107, Criminal P. C, can be a proper solution of the dispute as regards possession of immovable property such as has been found to have existed in respect of the mineral rights which were the subject-matter of the proceedings in the present case. That being so, only proceedings under Section 145, Criminal P. C, could so far as the Criminal Courts were concerned, load to any lasting solution of the problem between the parties. I may further point out that, if the Magistrate were to order that the properties in dispute be attached under the provisions of Section 146, Criminal P. C, so far as the Maharaja and his transferees are concerned, they Will be relegated to the same position in which they were before the suit was commenced by the Maharaja of Chota Nagpur which went up to His Majesty in Council, as set out above. In that suit, the Maharaja had obtained a declaration of his title to the mines and minerals in Pargana Tori, including the villages in, question, so also an order of injunction against the petitioners' landlord and his agents and servants. These considerations illustrate the futility of the argument advanced by Mr. Das that proceedings under Section 145 are not appropriate to the present dispute, and that even though the second party may not have been in actual possession of the property, the possession of the first party also cannot be declared by the learned Magistrate.
63. In view of these considerations, I have come to the following conclusions:
(1) That in a proceeding under Section 145, Criminal P. C, the Magistrate is concerned only with the question of actual possession, and he must determine that question irrespective of the right to possession.
(2) That such a proceeding can be initiated in respect of mineral rights if there is a dispute as regards possession between contending parties leading to an apprehension of a breach of the peace. Of course, it is open to the Magistrate ultimately to drop the proceedings on coming to the conclusion either that there was no apprehension of a breach of the peace or that the claim of one party was a mere pretence.
(3) If the Magistrate comes to the conclusion that, in spite of a clear declaration of title in favour of one party by a Court of competent jurisdiction, the judgment-debtor is in actual physical possession of the property, he must declare that possession unless he comes to the conclusion that the dispossession of the true owner took place within two months before the initiation of the proceedings.
(4) But, if the Magistrate finds that there is a clear declaration of title in favour of one party as against another party whose evidence of actual possession is not reliable, the Magistrate may declare the true owner's possession, however slight his evidence of actual possession may have been.
(5) That it is not open to the Magistrate in such a proceeding to determine questions of title as between the contending parties ; but, where there has been a determination of that question by a Court of competent jurisdiction he may respect that determination in valuing the evidence of actual possession led on either side.
(6) That the proceedings of a Magistrate under Section 145 of the Code are not meant to be a preliminary trial on a question of title but only a summary enquiry on the question of actual physical possession, and only evidence of such possession is admissible.
64. It has been argued by Mr, Das that the learned Magistrate below has followed the decision of the Division Bench of this Court in Ranchi Zamindari Company, Ltd, v. Maharaja Pratap Udainath Sahi Deo, 18 Bat. 215: A.I.R. (26) 1939 Pat. 209 : 40 Cr. L. J. 631.) Though the Magistrate has purported to do so, he has not really done so. The learned Magistrate has found that the second party, the petitioners in this Court, had dug some pits in a portion of the property in dispute. But even in. respect of that he has not declared their possession, relying upon the decision of this Court in the case of Emperor v. Bandhu Singh A.I.R. (15) 1928 Pat. 124 : 29 Cr. L. J. 99), on the ground that possession acquired by an act of trespass-cannot be recognised, In my opinion, the learned Magistrate has completely misdirected himself in doing so. The observation made in this Court that a trespasser cannot acquire possession by the very act of trespass was made quite in a different context, not in a proceeding under Section 145 of the Code. That was a case in which the accused persons, who were being prosecuted, for criminal trespass, relied upon the fact that they had taken possession of the property, and were thus in possession. The Court naturally repelled that contention, The Magistrate has also throughout his judgment wrongly assumed that the proceedings were in respect of coal mines, whereas in terms they were in respect of mineral rights which include coal and other kinds of substances of commercial value, as pointed out above. Hence, the fact that neither party had been able to reach the coal, if any, underneath is wholly irrelevant for the purposes of the proceedings. The learned Magistrate has made another mistake in so far as he has observed that the wrongful digging of pits by the second party was within two months of the proceedings under Section 144 of the Code. As a matter of fact, that is not so, as would appear from the relevant dates. But the two months have to be calculated with reference to the date of the initiation of the proceedings under Section 145 of the Code. These errors of fact and law have materially affected the orders of the learned Magistrate.
65. I would, therefore, set aside his orders, and remand the case to him for disposal in accordance with law in the light of the observations made above. The rule is accordingly made absolute.
Das, J.
66. I have had the advantage of reading the judgments, prepared by my learned brethren Meredith and Sinha, J. an ad vantage which while reducing my labour has considerable added to my responsibility, because of the divergence of views disclosed by the judgments on some of the questions in controversy. Fully conscious of that responsibility and of the importance from the point of view of administration of justice of the necessity of preventing breaches of peace likely to arise out of dispute as to immovable property, I have considered and reconsidered the divergent view-points regarding Section 145, Criminal P. 0. As a result of much anxious consideration, I have come to the same conclusions as have been reached and formulated by my learned brother Sinha, J, under six heads in the concluding part of his judgment.
67. That in a proceeding under Section 145, Criminal P. C, the Magistrate is concerned only with the fact of actual possession and must determine that fact without reference to the merits of the claims of the parties to a right to possess the Subject of dispute, is clear from the section itself and has bean affirmed and re-affirmed in a large number of decisions o the various Courts in India, and I venture to say that on this point there is no real difference of opinion of subordinate Magistrates who are called upon to decide disputes under Section 145, have or should have no reasons for any misapprehension regarding it. The divergence of view or difference of opinion, such as is disclosed by the reported decisions to which my learned brethren have referred, relates to the conclusions which my learned brother Sinha, J. has formulated under heads (4) and (6). The question isCan the Magistrate at all consider the evidence of title, even for the limited purpose of valuing or assessing the evidence of actual possession, or must he completely shut out all reference to the question of title, even though it has been recently determined by a Court of competent jurisdiction as between the parties to the dispute ? One line of decisions is in favour of the view that the Magistrate must completely shut his eyes to the question of title, and this on the ground that that is the logical effect of the words used in Section 145. The other line of decisions leans in favour of the view that though the Magistrate cannot or must not determine the question of title, he may consider the evidence of title or take into consideration any recent determination of the question of title to assist him to come to a decision on the fact of actual possession, provided he keeps in mind that proof of title is not necessarily proof of actual possession. This latter line of decisions is not the thin end of the wedge put in afterwards, but began as early as 1866, as pointed out by my learned brother, Sinha, J. The camel appeared as soon as the tent 'was pitched, and had not to wait for an opportunity to make a surreptitious entry by pushing its nose under the tent-flaps.
68. Let us examine afresh the wording of the section and see if a consideration of the evidence of title, in so far as it may have a bearing on the fact of actual possession, is prohibited under, it. By sub.s. (l) the Magistrate requires the parties "to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute". The words "claims as respects the fact of actual possession", I apprehend, mean that the parties should state why, how or to what extent they claim to be in actual possession; otherwise the use of the word "claims" would be inapt. Some reference to title would be unavoidable in stating the claim to actual possession. Then, there is Sub-section (4), with the very important words "without reference to the merits of the claims of any of such parties to a right to possess the subject of dispute." These words make it quite clear that the Magistrate must determine the fact of actual possession irrespective of the merits of a claim to a right to possess i.e., irrespective of the question of title. But do they mean, by rigour of the logical process, that any consideration of the evidence of title is excluded, even if it has a bearing on the fact of actual possession or evidence relating thereto. I do not think the words have that excluding effect; that would be excluding evidence which may have an effect on the fact of actual possession. Sub.s. (4), as I understand it, sayB, in effect, to the Magistrate "you must decide the fact of actual possession; it is not your business to decide the question of title; nor must you think that proof of title is necessarily proof of actual possession." But if the evidence of title or any recent determination of it has a bearing on the fact of actual possession (for example, makes the evidence as to actual possession more probable in favour of the party having title or enables the Magistrate to make an easier inference of possession of the whole from possession of the part by the true owner), it is open to the Magistrate to consider that evidence of title, and I do not think that Section 145 places any interdict on such evidence. The section says that the Magistrate shall receive all such evidence as may be produced by the parties obviously meaning evidence which has a bearing on the question to be decided, viz., the fact of actual possession. That would include evidence of title in so far as it boars on the fact of actual possession.
69. I agree that a dispute under Section 145 cannot be decided in favour of a party merely on the principle that possession follows title. learned Counsel for the opposite party conceded this before us. If Banchi Zamindari Go. Ltd, v. Maharaja Pratap Udainath Sahi Deo, 18 Pat. 215 : A.I.R. (26) 1939 Pat. 209: 40 Cr. L. J. 631) decides that proof of title is necessarily proof of actual possession or that a dispute under Section 145 can be decided on the doctrine that possession follows title, I would express dissent from it. But I do not think that the decision is to that effect. I understand that decision as holding that in the ease of unworked minerals in- a defined area which cannot by their very nature be physically possessed in the way in which cultivable land is possessed, actual possession of the true owner may be proved by such acts as the sinking of a shaft to work the minerals, or the grant of a mining lease for a portion of the area. The decision really turned up on the question as to the nature of acts necessary to prove actual possession of unworked mineralsin the case of a true owner or in the case of a trespasses, A distinction was made between the two, and in the case of the true owner slight evidence of the nature referred to above was held to prove possession, whereas in the case of the trespasser, possession of that portion only was found which had been actually worked. It was pointed out, however, that it was open to the Magistrate to find that the methods employed by the trespasser showed that he had obtained possession of the whole: that would be an inference of fact as distinguished from an inference of law like the doctrine that possession follows title. It has been contended before us that a distinction between the true owner and the trespasser like the one made in Ranchi Zamindari Co. Ltd, v. Ma. haraja Pratap Udainath Sahi Deo, 18 Pat. 215 : A.I.R. (26) 1939 Pat. 209; .40 Cr. L. J. 631) is inappropriate in a proceeding under Section 145, Criminal F. C., as it brings in the question of title which the Magistrate is precluded from considering. I have already said the Magistrate is not totally precluded from considering the evidence of title in its bearing on the question of actual possession. Moreover, without calling in aid the doctrine of "possession follows title," the nature of proof necessary to show actual posses. sion of underground minerals on behalf of a true owner may be different from that on behalf of a trespasser, because the two may not stand on the same footing as regards the two constituent elements of possession,animus and corpus. Even as an inference of fact the inference which is made from certain acts by the true owner need not be the same as made from similar acts by the trespasser; this will depend on the circumstances of the case with reference to the subjective and objective elements of possession. I do not think that a Magistrate deciding a dispute about unworked minerals under Section 145, Criminal P. C, commits any error if in considering the evidence of actual possession and drawing inferences there, from, he makes a distinction between the true owner and a trespasser, provided he always keeps in mind that he has to decide the question of actual possession (even that of a trespasser) and proof of title is not necessarily proof of possession. Considered in this sense, I do not think that Ranchi Zamindary Co. Ltd. v. Maharaja Pratap Udainath Sahi Deo, 18 pat. 215 : A.I.R. (26) 1939 Pat. 209: 40 Cr. L. J. 631) was wrongly decided. The conception of possession is a difficult conception, and words connected with the subject of possession have not all been used in the same sense. The word 'constructive possession' has sometimes been used in a narrow, and sometimes in a wide sense. In the narrow sense, it means possession in law and not in fact; "that is to say, for some special reason the law attributes the advantages and results of possession to some one who as a matter of fact does not possess (Salmond on Jurisprudence; 9th Edn., pp. 365 and 366)." In that sense, it cannot be the subject of enquiry under Section 145. Take, however, a case of the following nature, referred to by Pollock and Wright on their Essay on Possession (p. 24), with reference to the rule that possession follows title:
The rule was enunciated forty years ago by Manle J. in the following dictum:
It seems to me that, as soon as a person is entitled to possession, and enters in the assertion of that possession, or, which is exactly the same thing, any other person enters by the command of that lawful owner so entitled to possession, the law immediately vests the actual possession in the person who has be entered. It1 there are two persons in a field, each asserting that the field is his, and each doing some act in the assertion of the right of possession, and if the question is which of those two is in actual possession, I answer, the person who has the title is in actual possession and the other person is a trespasser': Jones v. Chapman, (1847) 2 Ex. 803 at p. 821 : 18 L. J. Ex. 456).
In the example given by Maule J., inference of actual possession is drawn in favour of the true owner from certain facts done in assertion of the right of possession, but a similar inference is not drawn in favour of the trespasser. I do not see why in a proceeding under Section 145, it should not be open to the Magistrate to draw the kind of inference that was drawn by Maule J. That the word 'constructive possession' is used in different senses will be apparent from the following extract from Pollock and Wright (p. 27):
Right to possess, when separated from possession, is often called 'constructive possession.' The correct use of the term would seem to be co-extensive with and limited to those oases where a person entitled to possess is (or was) allowed the same remedies as if he had really been in possession. But it is also sometimes specially applied to the oases where the legal possession is with one person and the custody with his servant, or some other person for the time being in a like position; and sometimes it is extended to other cases where legal possession is separated from detention.
De facto possession has sometimes been paraphrased as effective occupation or control, and in order to ascertain whether acts of alleged occupation, control or use and enjoyment are effective as regards a given thing, it would be necessary to consider : a) of what kinds of physical control and use the thing in question is practically capable ; (b) with what intention the acts in question were done ; and (c) whether knowledge or intention of any other person was material to the effect, and, if so, what that per. son did know and intend. Therefore, no fixed rule can be laid down as to what acts would constitute de facto possession, the inference from the acts depending on the nature of the property, the intention behind the acts, etc. In a fit and proper case it is open to the Magistrate to infer actual possession from slight acts done by the true, owner which, if done by a trespasser, may not lead to a similar inference. In Thomas v. Metropolitan housing Corporation Ltd., (1936) 1 ALL E. Rule 210 ; (80 S. J. 205) the surrender of a key to the landlord was held to give the landlord actual possession within the meaning of the Rent Acts. Their Lordships of the Privy Council observed in the case of Nageshwar Bux Boy v. Bengal Goal Go. Ltd., 10 Pat, 407 : A.I.R. (18) 1931 P. C. 186):
In considering the character and effect of acts of possession in the ease of a mineral field, it is necessary to bear in mind the nature of the subject and the possession of which it is susceptible. Owing to the inaccessibility of minerals in the earth, it is not possible to take actual physical possession at once a whole mineral field: it can be occupied only by extracting the minerals and until the whole minerals are exhausted the physical occupation must necessarily be partial.
Therefore, actual possession of a mineral field must be a matter of inference from acts per-formed, either by the true owner or by a trespasser. The inference will be an inference of fact and not an inference of law like the doctrine that "possession follows title." But the inference of fact will depend on the circumstances of each case, and it is open to the Magistrate to infer from some acts of the true owner that he is in possession of the mineral field. Such an inference can also be made in favour of a trespasser, and this would not militate against the principle that the claim of a mere trespasser to title by adverse possession will be confined strictly to the property of which he has been in actual possession: See the observations in Safiz Md, Fateh Nasib v. Sir Swarup Chand Hukum Chand, A I. R. (35) 1948 p. C. p. 76 at p. 80 : 50 Bom. L. E. 632).
70. I agree with Sinha J., that the learned Magistrate has not appreciated the correct principles governing such cases, though I do not think that he "was unaware that the proceeding before him related to mineral rights and was not in respect of coal mines only. His order is, how- ever, affected by the failure to appreciate the correct principles. These have now been clearly laid down. I agree with Sinha J., that this application should be allowed, and the case sent back for fresh disposal in the light of the principles indicated in the judgment.
71. I have refrained from examining the large number of decisions which were placed before us. My learned brethren have done it, and in view of the fact that I have agreed with my learned brother Sinha J., no useful purpose would have been served by referring to the decision he has already examined. I have contented myself with referring in detail to Banchi Za-mindari Co. Ltd. v. Maharaja Pratap Udai. nath Sahi Deo, 18 pat. 215 : A.I.R. (26) 1939 Pat, 209: 40 Cr. L. J 631) round which the controversy mainly ranged.
72. I need say only a few words about the difficulties of the Magistrate in dealing with disputes under Section 145, Criminal P, C. There should be no difficulty if the Magistrates keep in view the principles, which have now been clearly explained. As a matter of fact, these principles had been explained on previous occasions also. The ' difficulties which the Magistrates have in dealing with disputes under Section 145, Criminal P. C, are due to a multiplicity of causes. First of all, because of the multifarious duties which the Magistrates have to ,perform, they have very little time to spare for such cases. Secondly, they fail to focus attention on the main question for decision, namely, the fact of actual possession. In a large number of cases the Magistrates have to answer a straight question, namely, if a or E is in actual possession. In a comparatively fewer number of cases difficulties arise because of the nature of the subject of dispute, for example, underground minerals. In this latter class of cases, the question of actual possession is not always easy to determine and may be dependent on inferences to be drawn from certain acts performed by the true owner or a trespasser. It is hoped that the principles now laid down will be of help to Magistrates in determining the question of possession in this latter class of cases.
73. I must make one point clear with regard to the period of two months mentioned in the first proviso to Sub-section (4) of a 145. This has been referred to by my learned brother Sinha J., in conclusion No. (3). There are some decisions including decisions of this Court which have said that the proviso should be interpreted reasonably and not literally, and if through delay in the action of the Magistrate the preliminary order is not passed within two months of the date of dispossession, the dispossessor should not have benefit of the delay. This view has not been accepted in some decisions of other High Courts. I am expressing no final opinion on this matter, as it has not been considered by the learned Magistrate from that point of view.