ORDER J.M.L. Sinha, J.
1. This reference has been made by the Sessions Judge, Pilibhit, through his order dated 18th of April, 1974
2. The facts leading to this reference can briefly be stated as follows:
There is an enclosure in muhalla Sahukara of Pilibhit wherein are situate seven temples of different deities. Inside the campus of the temples there are five kothris and one sidri along with a pucca kothri. An application was moved by Ghananand, hereafter to be called the applicant, in the court of the S. D. M. Pilibhit on 9th June, 1972, alleging that he was the pujari of the temple and was in physical possession of the entire enclosure, including the temples, the kothris and the sidri for quite a long time and that two days prior to the filing of the application Vinod Kumar and Ram Sewak, hereafter to be called O. P. Nos. 1 and 2 respectively, took forcible possession over one of the kothris and wanted to evict the applicant from the remaining part of the ahata and the temples therein, as a result of which there was an apprehension of a breach of the peace. On 9th of June 1972 the learned S. D. M. passed a preliminary order, calling upon the parties to put in their written statements and affidavits etc., in support of their respective claims of possession. He also directed attachment of the ahata. The attachment was effected on 3rd of July, 1972. Thereafter, in compliance of the preliminary order dated 9th of June, 1972, the applicant, the O. P. No. 1 and the O. P. No. 2 filed written statements.
3. In the written statement filed by the applicant he pleaded that, after the murder of Rama Kant in 1966, there arose the problem about the management of the temples and the property attached thereto as Pandit Madan Mohal Lal, brother of Rama Kant, was very old and feable. The applicant pleaded that he was, therefore, appointed pujari of the temple and he started doing that wort since July or August, 1967, and since then the temples and the Kothris existing in the campus were in his exclusive physical possession. He further pleaded that on 6th June, 1972, O. P. Nos. 1 and 2 took forcible possession over one Kothri and wanted to evict him from the rest of the premises.
4. O. P. No. 1 pleaded in his written statement that his grandfather Pt. Ram Sarup was originally the mohatmin (manager) of the temples in dispute, that on the death of Pt. Ram Sarup, his father Pt. Madan Mohan became the mohatmin and during his lifetime he used to take the work of pujari etc.. from his real brother Pt. Rama Kant; that Pt. Rama Kant was murdered in November, 1966, that sometime in the year 1967 the applicant expressed to Pt. Madan Mohan his inclination for doing sewa bhog etc.. and Pt. Madan Mohan, therefore, permitted the applicant to live inside the enclosure and to assist him in puja and bhog etc., that after the death of Pt. Mad in Mohan, he (O. P. No. 1) became the mohatmin of the temple and its property; that since about a year prior to the institution of the case the applicant did not do his work properly and also paid no heed to his advice and warnings, as a result of which he was compelled to ask the applicant in the month preceding Baisakh to stop doing the work of puja etc., and to withdraw his residence from the temple campus. Thus, according to O. P. No. 1 the applicant was not in possession over any part of the temple or its attached kothris since Baisakh preceding the institution of the case.
5. O. P. No. 2 in the written statement filed by him, pleaded that he had BO concern with temples and that he had been impleaded in the case for no reason. He, however, supported the case of the O. P. No. 1.
6. A large number of affidavits were filed by the applicant as well as by the O. P. No. 1 in support of their respective claims.
7. After taking into consideration the affidavits filed on both sides, the learned Magistrate reached the following conclusions:
(1) That Pt. Madan Mohan was the mohatmin of the mandir and the applicant was appointed as sahayak pujari of Pt. Madan Mohan and not by any persons of the muhalla, as was claimed by the applicant in his written statement.
(2) Since Pt. Ghananand was appointed as Sahayak pujari, he resided in some of the Kothris inside the campus with the implied permission of Pt. Madars-Mohan Lal, and after his death with the permission of Vinod Kumar (O. P. No. 1).
8. Having reached the above conclusions, the learned. S. D. M. after making a reference to the cases Balak Dass v. Bhagwan Das and Sardar Singh v. State 1967 All Cri C 330 held that the possession of an agent or servant which is permissive cannot give him a locus standi as against his principal or master in proceedings under Section 145, Criminal Procedure Code and consequently, the applicant had no right to claim possession over the property in his capacity as Sahayak pujari.
9. In the result the learned S. D. M. declared the O. P No. 1 in possession of the disputed property and forbade all interference with his possession till he was evicted in due course of law.
10. Aggrieved by the order of the S. D. M., the applicant filed a revision in the court of session at Pilibhit. The learned Sessions Judge agreed with the Magistrate, that there was an apprehension of the breach of the peace. Also agreeing with the learned Magistrate regarding actual possession of the applicant, the learned Sessions Judge observed:
The actual physical possession held to be of Ghananand by the learned Magistrate finds support from the case of the opposite party Vinod Kumar and the various affidavits on record, coupled with the evidence of the receipt of electricity security deposit and the payment of the electrcity bills in the name of Ghananand. Therefore, I agree with the finding of the learned Magistrate that the possession over the property is that of Ghananand.
The learned Sessions Judge, however, found that there was a conflict of opinion in the two decisions of this Court, namely Abdul Gaffar v. State 1965 All WR (HC) 788 (789), decided by Gyanendra Kumar, J. and Sardar Singh v. State 1967 All WR (HC) 641, decided by Takru, J.). The learned Sessions Judge, therefore, did not decide whether the view taken by the learned S. D. M. was correct or not and instead made a reference to this Court.
11. The question that first of all falls for consideration is whether there is any conflict of opinion in the aforesaid two cases. After having carefully gone through both the derisions, I find that there is no conflict whatsoever. In the case of Abdul Gaffar v. State 1965 All WR (HC) 788 (supra). Gyanendra Kumar J., after relying on a decision of the Rajasthan High Court in the case of Thakur Jaikirit Singh v. Sohan Raj observed:
Therefore, if the master or the principal is in constructive possession through his servant or agent and the latter claims possession in himself, it would be the possession of the servant or the agent which would be maintained in proceedings under Section 145 Cr. P.C. 1 am in respectful agreement with this proposition of law.
11-A. The expression "claims possession in himself" is of some significance in the aforesaid observations. It means that a servant or agent in actual physical possession of the property in dispute should, in order that his possession be maintained in proceedings under Section 145 Cr. P.C. claim to be in possession of the property on his own account and not on behalf of his master or principal. Unless a servant or an agent does so, he cannot ask for his possession being maintained in such proceedings. To assign any other meaning to the aforesaid observation of Gyanendra Kumar, J., would amount to overstretching it.
12. Now taking up the other case viz.. Sardar Singh v. State (1967) All WR (HC) 641 (supra) decided by Takru, J., he classified such cases into two heads, as would appear from the following observation contained in the report of the case:
But both these cases as also the other cases on this subject whose number runs into legions, proceed upon the basis that the party claiming actual possession of the subject of dispute does so in the assertion of an independent right to possession and not on the basis of permission given to him by its owner. If the case falls under the latter category, the actual physical possession of the person to whom the permission is given, such as servant or an agent, is in law deemed to be the possession of the master and no order in favour of such a person can be passed under Section 145, Cr. P.C. even though he might have been in possession of the subject of dispute for more than two months next prior to the passing of the preliminary order (underlining by me) A careful perusal of the above would show that, according to Takru, J., if a party claims actual possession of the subject of dispute in assertion of an independent right to possession he would stand out as a separate class and he will not be debarred from taking the aid of Sec-tion 145 Cr. P.C. for his possession" being maintained. But if a person claims to be in possession merely on the basis of permission given to him by its owner and no further, then he cannot take the aid of Section 145 Cr. P.C. because his possession is nothing but the possession of the master.
13. It would thus appear that in both the cases substrata of the decision is the same, namely that if any servant or agent claims possession over the property in dispute on his own account he can take the aid of Section 145 Cr. P.C. for his possession being retained. But, if he claims to be in possession on behalf of the master or the principal, and nothing beyond it he cannot ask for the protection of his possession in proceedings under Section 145 Cr. P.C. The difference can be better demonstrated by taking recourse to an illustration. Suppose 'A' has several firms situate in different towns. He can be physically present only at one such firm. He employs some managers or munims to look after the other firms. Now, the possession of those managers or munims on those firms shall be on behalf of 'A' and not on their own account. But if 'A' allows his managers or munims the occupation of some residential accommodation, distinct and separate from the firms, to enable them to efficiently look after the affairs of the firms, the possession over that residential accommodation shall be the possession on their own account and not on behalf of 'A' though it is under the permission granted by 'A'. In the case of firms, the possession always remains with 'A' while, in so far as the residential accommodation is concerned, the possession is transferred to the Managers and munims. The fact of relationship of master or servant is only the cause of the transfer of possession. The nature of possession of the manager or munim will always be that of a lessee or a licensee. While the manager or munims cannot invoke the aid of Section 145, Criminal Procedure Code to maintain their possession over the firms they can do so in order to defend against their forcible eviction from the residential accommodation.
14. In the case of Abdul Gaffar v. State 1965 All WR (HC) 788 (supra) it was held by this Court that Abdul Gaffar was not in physical possession over the property in dispute on the date of the preliminary order or within two months prior to it. In the case of Sardar Singh v. State 1967 All WR (HC) 641 (supra) the court held that O. Ps. were in possession over the land under a naukri-nama. The assertion made by the O. Ps. that they were bataidars was rejected. The Court thus held that the O. Ps. were tilling the land not on their own account but on behalf of their masters. It was on this reasoning that the Court held that the 0. Ps. had no locus standi for asserting their possession in proceedings under Section 145, Criminal Procedure Code.
15. I am, therefore, clearly of the view that there is no conflict in the two decisions of this Court.
16. Now coming to the facts of this case, there is concurrent finding of the courts below that-
(1) that the applicant was appointed by Madan Mohan Lal, father of O. P. No. 1 as Sahayak pujari to do puja bhog etc. in the temples; and (2) That he was in actual physical possession of some of the kothris inside the campus of the temples.
17. Therefore, in so far as the temples are concerned, the possession of the applicant was nothing except that of a servant. It was in his capacity as a servant of the mohatmim of the temple that he did puja, bhog etc., therein. His possession over the temples was thus clearly on behalf of the Mohatmim viz., O. P. No, 1 and not on his own account.
18. As-for his possession, over the (kothris it is apparent from the findings recorded by the courts below, as also from the affidavits on record that the applicant was permitted by Pt. Madan Mohan Lal to live in some of the kothris inside the temples. The purpose presumably was that the applicant could more effectively render his services as a pujari in the temples situate within the campus. In other words, the possession over the kothris had itself been transferred to the applicant by the then mohatmim Pt. Madan Mohan Lal. The possession of the applicant over the kothris is, therefore, possession on the applicant's own account and not on behalf of the Mohatmin. The nature of his possession would be that of a lessee or a licensee.
19. In the case R. H. Bhutani v. Miss Mani J. Desai , R.S. Bhutani was in possession of certain cabins under licence granted by Miss Mani J. Desai. Miss Desai took forcible possession over the cabin and he, therefore, filed an application under Section 145 of the Code of Criminal Procedure. The fact that a licence had been granted by Miss Mani J. Desai in favour of Sri Bhutani was admitted between them. There was some controversy whether the licence had been extended beyond a certain period. The Magistrate decided in favour of Sri Bhutani and ordered restoration of possession to him. Miss Mani J. Desai went in revision before the High Court. The High Court set aside the Magistrate's order, whereupon the appellant approached the Supreme Court after obtaining special leave. The Supreme Court allowed the appeal and restored the orders of the trial Magistrate. My limited purpose in referring to this decision is that the possession of the licensee was recognised and afforded protection by a court of law in proceedings under Section 145, Criminal Procedure Code.
20. My conclusion accordingly is that the order of the learned S. D. M. in so far as the temples are concerned is correct and does not call for any interference. The possession of the applicant over the temples is in fact the possession of Vinod Kumar (O. P. No. 1). The applicant could not, therefore, be granted any relief in proceedings under Section 145, Criminal Procedure Code in so far as the temples are concerned. In so far however as the Kothris are concerned, the applicant was entitled to ask for the protection of restoration of his possession over such kothris that were in his actual physical possession on the date of the preliminary order or within a period of two months prior to it.
21. I would have myself passed final orders in the light of the conclusion summed up by me, above. The difficulty however, is that, according to the finding recorded by the Magistrate and affirmed by the Sessions Judge, the applicant was in possession only on some of the kothris. No finding has been recorded by the trial Court as to which of the particular Kothris were in possession of the applicant on the date of the preliminary order or within a period of two months prior to it. Unless a finding is recorded on that point no final order can be passed.
22. In the result, therefore, the order of the learned S. D. M. dated 21st September, 1973, in so far as it concerns the kothris inside the temple's campus, is set aside and the case is remanded with the direction that the S. D. M. should record a categorical finding on the point as to which particular Kothris the applicant was in actual physical possession on the date of the preliminary order or within two months prior to it and should then proceed to pass the final orders in the light of the observations made in the body of this judgment. It will be open to the trial court to exercise its power under Sub-section (9) of Section 145, Criminal Procedure Code to summon any witness suo motu or on the application of any party, if the trial court considers that the evidence of such witness shall be necessary to enable it to record a finding in that regard.
23. The reference is disposed of accordingly.