DAVE, J. - (1.) THIS reference conies on the report of the learned Additional Sessions Judge, Gangapur, dated the 13th of May, 1961.
(2.) THE facts giving rise to it are that one Mst. Alladi, resident of Karauli, who will be hereinafter referred as party No. 1, presented an application under sec. 145 Cr. P. C. on 31st March, 1959, in the court of the Sub-Divisional Magistrate, Karauli. It was averred by her that agricultural fields Khasra Nos. 5127, 5182 to 5186 and 5209 to 5231 situated in front of Gulab Bagh (Karauli) were in her possession, that she had employed Bhonrulal, who will hereinafter be referred as party No. 2, as a labourer to help her in cultivating the said fields and that he was working in that capacity for the last 2 years. It was alleged that on 11. 3. 59 at about 8 A. M. when she went to the said fields, she found that party No. 2 was harvesting the crop growing near a Kachch Kua and when she reprimanded him, he threatened to assault her and kill her. It was prayed that there was an apprehension of breach of peace and therefore proceedings under sec. 145 Cr. P. C. should be taken. On 1. 4. 59, the Magistrate passed a preliminary order and directed both the parties to put in their written statements together with affidavits about their possession in respect of the disputed property. Both the parties accordingly put in their written statements of their respective claims as respects the fact of actual possession of the disputed property and also filed affidavits of certain witnesses. After going through the entire evidence, the Magistrate came to the conclusion that party No. 2 was a mere servant of party No. 1 and therefore he decided the matter in favour of party No. 1. It may be mentioned here that the Magistrate had appointed a receiver to take possession of the disputed property during the pendency of the case and so he directed him to hand over the possession of the disputed property to party No. 1. Party No. 2 was directed not to interfere with the possession of party No. 1 and to take recourse to civil law if he had any claim over the property. Aggrieved by this judgment dated 14th October, 1959, party No. 2 filed a revision application in the court of the Additional Sessions Judge, Gangapur. The learned Judge has reported that party No. 2 was in joint possession of the property with party No. 1 for about 2 years preceding the date of the preliminary order and therefore he has recommended that proceedings under sec. 145 Cr. P. C. should be quashed and the parties should be directed to have their rights declared by a civil or revenue court. This reference is supported by Shri O. C. Chatterji appearing for party No. 2 while it is vehemently opposed by Shri S. M. Mehta appearing for party No. 1. I have carefully gone through the reference made by the learned Additional Sessions Judge and also through the record of the trial court. It may be observed that the Magistrate had arrived at a definite finding to the effect that the relationship between party No. 1 & party No. 2 was that of an employer and employee. According to him, party No. I was Muafidar of the property in dispute and it was also in her Khudkasht and party No. 2 was engaged by her only as a labourer to help her in cultivating the land. Unfortunately, the learned Additional Sessions Judge has not made it quite clear in his report as to what was the relationship between party No. 1 and party No. 2 in his opinion. He has observed that party No. 1 was admittedly Muafidar of the land and then he has proceeded to say that "bhonrulal (party No. 2) had connections with this land and cultivated it. It is another thing in which capacity he cultivated. " It may be remarked that the learned Judge ought not to have made a reference unless he was satisfied that the finding arrived at by the Magistrate regarding relationship between the parties was incorrect. The question of relationship between the parties was one of great importance in this case and the learned Judge should not have left it un-decided by making a vague remark that "it is another thing in which capacity he cultivated. " If party No. 2 was a mere servant of party No. 1, then he could not be said to be in possession of the land in dispute. According to Sec. 27 of the Indian Penal Code when property is in the possession of the person's servant, on account of that person, it is in that person's possession. Therefore, if party No. 2 was present at the field simply as a servant of party No. 1, he could not claim that he was in possession of the field as against his master. In Thyalyee Ammal Vs. Srirangaroya Goundan and another (1) it was held that sec. 145 Cr. P. C. was not meant to be used to protect the possession of a servant against his master. On the contrary, it was held that if the servant rebels against the master, the master's possession must be protected under sec. 145 Cr. P. C. Similarly, in Bajirao Vs. Mst. Dadibai (2) it was held that the possession of an agent or a servant which is permissive cannot give him a locus standi as against his principal or master. The possession that can be pleaded in a proceeding under sec. 145 must be possession based on a claim of right to possession. I also think that if the holder of a land employs some person as a labourer engages as his servant, the said labourer or servant cannot assert his possession over the land as against his master. In the present case, party No. 2 had asserted in the trial court that he was a tenant of party No. 1. If the learned Additional Sessions Judge had arrived at a finding that party No. 2 was a tenant, the position would have been different. He has, however, not recorded that finding and vaguely observed that party No. 2 was in joint possession with party No. 1. It seems that the conception of possession as between master and his servant was not quite clear to the learned Judge. It is urged by learned counsel for party No. 2 that the Magistrate's finding about the relationship between the parties is not correct and therefore the case may be remanded to the Additional Sessions Judge to give a clear finding about the relationship between the parties. I have given due consideration to this request and I think that it would not be proper to allow this request now. Learned counsel for party No. 1 says that the possession of the disputed land was given over to his client on 17th October, 1959, and since then she is in possession. It is also urged that if party No. 2 has any claim over the property in dispute, the doors of a civil or revenue court are open to him. I think, there is force in this contention. It is certainly open to party No. 2 to take recourse to civil law and no useful purpose would be served by remanding the case after such a long time. The reference is hereby rejected. . ;