BERI, J. - (1.) THIS is a reference made by the Additional Sessions Judge, Dhol-pur, by his order dated the 3rd of August, 1968 recommending under sec. 438 of the Code of Criminal Procedure that the Sub-Divisional Magistrate's order dated the 25th of May, 1966 under sec. 145 of the Code of Criminal Procedure be quashed the receiver be removed and Babulal be delivered possession of the property in dispute.
(2.) THIS is one of the chronic disputes under sec. 145 of the Code of Criminal Procedure relating to a field bearing Khasra No. 4518/1 measuring 4 Bighas and 5 Biswas situate in village Bari, District Dholpur. Chronologically the facts relating to the property in dispute, which require recall, are as follows. On the 10th of Jan. , 1964 Chunnilal, Sohanlal, Kishanlal and Ramswaroop, it is alleged, executed a deed of sale in favour of Babulal for the aforesaid property in consideration of a sum of Rs. 200/ -. On the 8th of January, 1966 Ramswaroop and 3 others instituted a civil suit seeking cancellation of the said sale deed inter alia on the ground that the intention was only to execute a deed of mortgage. While this suit was in progress on the 19th of January, 1966 Babulal moved an application under sec. 145 of the Code of Criminal Procedure relating to the aforesaid land. On the 22nd of January, 1966 the learned Sub-Divisional Magistrate passed a preliminary order and so also an order of attachment. After examining the affidavits and the documents produced before him on the 25th of May, 1966 he passed the final order declaring the possession to be that of Ramswaroop and others. Babu Lal felt aggrieved and preferred a revision application which came to be considered by the learned Additional Sessions Judge, Dholpur. It appears during the pendency of ths revision application before the Additional Sessions Judge on the 19th of May, 1967 the Munsif in the civil suit instituted by Ramswaroop and 3 others found inter alia that the possession was not that of Ramswaroop and others, this being issue No. 1. On the 27th of July, 1968 even the appeal of the suit was decided and the learned Additional District Judge, Dholpur, upheld the finding of the Munsif dated the i9th of May, 1967 inter alia on the question of possession. It was on the 3rd of August, 1968 that having been persuaded by the judgment of the two civil courts, namely, the Munsiff and the Additional District Judge, the learned Additional Sessions Judge felt that in the face of the concurrent findings of the two civil courts regarding the question of possession the order of the Magistrate dated the 25th of May, 1966 should not survive. He has accordingly, made the recommendation as indicated earlier. Mr. K. N. Tikku strenuously opposed the reference on the ground that the order and decree of the learned Additional District Judge have been assailed before this court in Civil Second Appeal No. 369 of 1968 and it is pending consideration by this Court. The order of the Additional District Judge is not, therefore, final. His further contention was that the consideration of the judgments of the civil courts as conclusive and binding on the proceedings under sec. 145, Cr. P. C. was erroneous. They were only relevant under sec. 13 of the Indian Evidence Act and no further. He placed reliance on Mst. Hosnaki and others vs. State (l); Agni Kumar Das vs. Mantazaddin and another (2); and Bhinka and others vs. Charan Singh (3 ). The substance of the argument on the basis of the aforesaid authorities is that a civil suit contemplated under sec. 145 Cr. P. C. is one for eviction and not for cancellation of the so called deed of sale. The nature of a suit as envisaged by sec. 145 (6) Cr. P. G. is of a different nature from the one on which reliancehas been placed by the learned Additional District Judge. Mr. C. L. Agarwal submitted that after all the civil suit instituted on 8th of January, 1966 was inter parties relating to the same property in which question of possession was included in Issue No. 1 and when that has been decided by two courts concurrently against Ramswaroop and three others that should principles analogous to res judicata should be held to be binding. He placed reliance on Mrs. V. E. Argles vs. Chhail Behari (4); Multani vs. Shah Abdul Turab Qadari (5); Mg. Tha Zan vs. Mg. Ba Gale alias Mg. Bu (6); and Emperor vs. Abdul Aziz (7 ). Mr. Tikku rejoined by saying that having regard to the pendency of the civil second appeal the judgment of the Additional District Judge has not acquired the finality which is necessary for the application of the principles of res judicata. In the face of the rival contentions of the parties, the following questions emerge for consideration: (1) Whether the decision of the Additional District Judge in the suit for cancellation of the deed of sale between the parties is relevant for a decision of the question of possession in the proceedings under sec. 145 Cr. P. C. , and if so to what extent ? (2) If not, what should be the order. In the Indian Evidence Act Judgments of Courts of Justices are relevant under secs. 40, 41, 42 and 43. Sec. 40 deals with previous judgments which are relevant to bar a second suit or a trial. This embodies the well known pleas of res-judicata or 'autre fois acquit' or 'autre fois convict'. Sec. 41 recognises the relevancy of what are known as judgments in rem. Sec. 42 provides that judgments if they relate to matters of public nature are relevant but not conclusive, and sec. 43 says that judgments, orders or decrees other than those mentioned in secs. 40, 41 and 42 are irrelevant unless the existence of the judgment, order or decree is a fact in issue or relevant under some other provisions of this Act. The learned Additional Sessions Judge has made the recommendation indicated earlier solely on the basis of the judgment of the Additional District Judge in the civil suit between the parties. He has made reference to three decisions, namely, Indra Bahadur Singh vs. State of Vindhya Pradesh (8); Multani vs. Shah Abdul Taran Qadari (5) and Rugga vs. Moona (9) and has recommended the quashing of the order of the Magistrate on that account. In Tikuda vs. State (10), the Full Bench has overruled Rugga's case (9 ). The Vindhya Pradesh case (8) deals with a situation when the highest civil court had declared the title and confirmed the possession in favour of party by means of a decree and when no change in the situation had taken place, only two days thereafter in a proceeding under sec. 145 Cr. P. C. the Magistrate could not hold otherwise. This is clearly distinguishable from the facts of the case before me where the suit had started for cancellation of a sale deed earlier than the institution of the proceedings under sec. 145 Cr. P. C. and the judgment of the Additional District Judge is still challenged in a second appeal pending before this Court. It is correct that Multani's case (5) helped Mr. Agarwal. In this case, however, the learned Judges' attention was not called upon the question of relevancy of judgments in civil courts, and therefore on the question of relevancy this judgment is of no assistance to me. The Allahabad case in Mrs. V. E. Argles vs. Chhail Behari (4), referred to by Mr. Agarwal, also supports him but this case came to be dissented in a Division Bench decision of the Allahabad High Court itself in Mst. Hosnaki vs. State (1) and is no longer good law. The decision of the Lahore High Court in Emperor vs. Abdul Aziz (7) also in some measure assists Mr. Agarwal but there again the question of relevancy of the judgment of a civil court in a proceeding under sec. 145 Cr. P. C. was not agitated and from that angle it does not assist me. The Lower Burma case in Mg. Tha Zan vs. Mg. Ba Gale (6) decides that a Magistrate was in error when he refused to hand over possession to a successful party in a civil suit under sec. 146 Cr. P. C. , merely because an appeal was pending. It is of no assistance so far as the questions which arise before me. Similarly the decision of the Calcutta High Court in Agni Kumar Das vs. Mantazaddin (2) laid down that it is the possession at the time of dispute and that too physical possession even though it may be wrongful and contrary to a civil decree which has got to be taken into account This case is of no help on the question of relevancy of a judgment as confronts me. We are thus left the case of the Allahabad High Court in Mst. Hosnaki vs. State (1) and there the Division Bench observed in para 9 as follows: - "a decision of a competent Court on a question of title, even if followed by delivery of possession to the successful party, is not conclusive evidence of the party's possession in an inquiry under sec. 145 (4); a Magistrate is not bound by any law to give his finding in accordance with the decision regardless of the actual evidence The admissibility of a previous judgment is governed by the provisions of the Evidence Act; there is no provision which makes a judgment of a civil court conclusive. " The learned Judge of the Allahabad High Court however observed that a judgment of a civil court may be admissible under sec. 13 of the Indian Evidence Act on the ground that it provides an instance in which the right to be in possession was claimed or recognised. But in an inquiry into the right to be in possession has to be correlated to the date when the possession is material in a controversy under sec. 145 Cr. P. C. In my opinion the only ground on which the judgment of the additional District Judge on a suit instituted by Ramswaroop and 3 others could possibly be relevant is on the doctrine of res judicata or on principles analogous thereto. The hurdle against relevancy and admissibility on that score is that the controversy in the civil suit is still sub-judice in the Civil Second Appeal No. 369 of 1963 pending before this Court and is therefore not final. This being not a judgment in rem or a judgment relating to matters of public nature, it is not relevant either under sec. 41 or sec. 42 of the Indian Evidence Act. Sec. 43 clearly bars its relevance. My answer, therefore, to the first question is that the decision of the Additional District Judge in civil suit at this stage on the question of possession in the proceedings under sec. 145 Cr. P. C. is not relevant. Therefore the decision of the learned Additional Sessions Judge, Dhol Pur, which revolves solely round the judgment of the Additional District Judge in a civil suit between the parties, suffers from a clear error. I am unable to accept his recommendations. I however, direct him to examine the case in his revisional jurisdiction on the basis of evidence regarding possession as was adduced by the parties before the court of first instance and to make such recommendations, if any, in the proceeding under sec. 145 Cr. P. C. as the evidence on the case warrants. The reference is accordingly rejected and the case is remanded for being reconsidered by the learned Additional Sessions Judge. . ;