Md. Shamsgoya Rowther vs Omandu Pillai and Others

The plaintiff is a lessee, who in this suit claimed mesne profits from the defendant, who had kept him out of possession and had obtained the order of a Magistrate u/s 145 of the Code of Criminal Procedure, confirming his possession "until evicted in due course of law".

The District Munsif dismissed the suit, because the plaint did not contain a prayer for possession. The plaintiff''s lease was a short one for 3 years, and he did not want possession at the time of instituting his suit. The District Munsif held that it was necessary that the Magistrate''s order should be vacated and that this could only be done in a suit for ejectment.

The Subordinate Judge held that it was not necessary that the Magistrate''s order should be vacated, or that the plaintiff should bring a suit to recover the property.

We agree with him. Section 145 Clause 6 of the Code of Criminal Procedure declares in what tertas the order of a Magistrate proceeding under this provision of law should run.

The order declares the party found to have been in possession of the property at the date of the notice to be "entitled to possession thereof until evicted therefrom in due course of law".

This does not signify that the successful party is thereby entitled as of right, to the property, in defeasance of whatever legal title there may be existing in favour of the rightful owner. The Magisterial order only entitles the successful party to remain in possession, pending the decree of the Civil Court. The plaintiff of course will have to prove his lessor''s title at the trial of the suit.

The form of the suit is not material. It is always open to a plaintiff to give up one of the reliefs to which he is entitled and to press for others. Whether the claim is for possession under Article 47, or for mesne profits under Article 109 of the Limitation Act, the period of limitation is the same.

The order of remand is therefore right and the appeal is dismissed with costs.