Desai, J. - (1.) THIS is a reference by the Sessions Judge of Fatehpur recommending that an order passed by a Sub -Divisional Magistrate under Section 146, Cr.P.C. be set aside. There was a dispute over a plot between the applicant and Ganga Charan, the applicant claiming to be its lessee and entitled to cultivate it, and Ganga Charan claiming that he was using it as his threshing floor. The parties committed a riot in August, 1948, while trying to assert their rights and so in September, 1948, the police made a report to the Sub -divisional Magistrate stating that there was an apprehension of a breach of the peace over the dispute and that proceedings under Section 145 of the Code might be taken. The learned Magistrate issued notices calling upon the parties to file their written statements and attached the land in dispute. Both the parties filed their written statements. Ganga Charan applied to the learned Magistrate that he had no other place for storing and threshing his paddy crop and that he might be permitted to do this on the land in dispute find the learned Magistrate granted him permission for the same. Both the parties led evidence to prove their possession. After completing the inquiry, the learned Magistrate passed the order under revision, which is in the following words: - - The land in dispute will remain attached. The, applicant (Ganga Charan) in, the meantime can use it as Khalyan Bharosa, has deposited ten times its rent. It is now impossible to "decide who is owner of the plot - -parties will get it adjudicated from a proper court and till then the plot will remain attached."
(2.) THE applicant challenged this order before the learned Sessions Judge on the grounds that it contained no reasons and that it was self -contradictory, inasmuch as it maintained the attachment on one hand and permitted the opposite -party to use it as his Khalyan on the other hand. The learned Sessions Judge accepted the contention of the applicant and made this reference. The learned Magistrate Writes, in explanation of what he has ordered, that his order is not a judgment and be was not required to give reasons in it and that he allowed the opposite -party to use the land as his Khalyan because he had already been Allowed to do so by his predecessor during the pendency of the proceedings. The order is clearly unsustainable because the learned Magistrate hat failed to understand what he was required to do in the proceedings. He ought to have known long ago that all that he had to do in the proceedings was to "decide whether any and which of the parties was in possession"; if he had oared to read the provision of Section 145(4) of the Code there should have been absolutely no doubt in his mind on this point, the words (quoted above) being so clear. I do not understand why Magistrates go out of their way to enter in to questions of title and ownership when all that they are required to do is to find which party was in possession. I am astonished to find that the learned Magistrate completely ignored the question of possession and went into the question of title. He had nothing to do with the title. Since he has not tried to decide which party was in possession and has not expressed his inability to satisfy himself as to which was in possession the order purporting to have been passed/under Section 146 of the Code is without jurisdiction and ought to be quashed. He had jurisdiction to pass an order under Section 146 only if he decided that none of the parties was in possession or was unable to satisfy himself as to which of them was in possession.
(3.) THE learned Magistrate committed another illegality by combining attachment of the land with permitting the opposite -party to use it. as his Khalyan. He did not realise that attachment could not exist side by side with its being used by one of the parties as his Khalyan. If it was attached, neither of the parties could enter upon it. Instead of admitting the illegality, the learned Magistrate has irrelevantly brought in the order of his predecessor. That order itself was illegal for similar reasons; if the very claim of the opposite -party to use the land as his Khalyan, which was being resisted by the applicant was likely to cause apprehension of a breach of the peace and the learned Magistrate felt obliged to attach the property in order to remove the apprehension, it was senseless to let the opposite party use the land as his Khalyan. Once the land was attached, the learned Magistrate had no jurisdiction to let either party enter upon the land for any purpose whatsoever. I do not understand how Shri S.P. Nigam, the Sub -Divisional Magistrate who has passed the order under Section 146, got the idea that he was bound to let the opposite party go on using the land as his khalyan merely because be had been permitted to do so his predecessor and that he could not prohibit the opposite party from doing so without sitting in judgment over his predecessors order. The order that was passed by his predecessor was operative only during the pendency of the proceedings, while the order passed by him was under Section 146, to come into effect on the terminal on of the proceedings. The two orders under different provisions and the passing of one order did not amount to cancellation of the other order. The operation of the predecessor's order ceased when Shri S.P. Nigam passed in order under Section 146 He was responsible for the legality of the order to be passed by him and could not take shelter behind his predecessor's order which was illegal. On account of this illegality the order permitting the opposite party to use the land as khalyan only would be set aside.;