P.N. Bakshi, J. - (1.) This is a reference by the First Addl. Sessions Judge, Kumaon dated February 1, 1971 against the order of the SDM, Bhaber dated 5 -9 -1970 dropping the proceedings Under Sec. 145(5) Code of Criminal Procedure. An application Under Sec. 145 was filed by one Abdul Sattar who claimed to be in cultivatory possession of certain plots situate in village Udailalpur. Mahendra Singh and Jeet Singh sons of Asha Singh were made opposite parties in these proceedings. The SDM passed a preliminary order on 28 -4 -1970 and called upon the parties to file their written statements. The opposite parties Mahendra Singh and Jeet Singh in their written statements contended that they had nothing to do with the land in dispute. They further stated that Abdul Sattar had conveyed all his rights to Pratap Singh brother of Chandan Singh and that Chandan Singh was in actual possession of the disputed plots. Chandan Singh filed an application Under Sec. 145(5) Code of Criminal Procedure in which he claimed to be in peaceful possession of the plots in dispute. He also prayed in this application that as there was no apprehension of breach of peace between him and Abdul Sattar and there was no dispute between them, the proceedings should be dropped. The learned SDM, Bhaber Haldwani on 5 -9 -1970 dropped the proceedings Under Sec. 145(5) Code of Criminal Procedure. He, however, directed that the land in dispute be released in favour of Abdul Sattar who would remain in possession thereof until evicted therefrom in due course of law. It is against this order that a revision was filed before the Addl. Sessions Judge, Kumaon who has made a reference to this Court for quashing the order of the SDM.
(2.) I have heard learned Counsel for the parties and have also perused the records of the case. It is submitted by the counsel for Abdul Sattar that as Chandan Singh was not a party to the proceedings Under Sec. 145 Code of Criminal Procedure, he had no right to file a revision before the Addl. Sessions Judge of Kumaon. He has also urged that Chandan Singh had applied for impleading him as a party in the said proceedings before the SDM, but his application was rejected by that court. He argues that in these circumstances it was not open to Chandan Singh to file any objection or a revision before the Sessions Judge. I have given my careful consideration to the submissions made by the learned Counsel for the parties, but I do not agree with them. Sec. 145(5) Code of Criminal Procedure reads as follows: Nothing in this Sec. shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate Under Sub -section (1) shall be final. A perusal of the aforesaid Sec. makes it crystal clear that even if a person is not impleaded as an opposite party in proceedings Under Sec. 145(1), he would still have a right to file an objection Under Sec. 145(5); provided he is a person interested. The only limitation placed by this sub -section is that a person interested, while filing an objection Under Sub -section (5) would only have a right to show to the court that no apprehension of breach of peace exists. For that limited purpose it is not at all necessary that he must be a party to the proceedings Under Sec. 145 Code of Criminal Procedure. Chandan Singh in this particular case claimed to be in peaceful possession of the plots in dispute. The impugned order passed by the SDM, Bhaber directed that the property in question was to be released in favour of Abdul Sattar. Chandan Singh was certainly affected by this order. He would therefore clearly come within the definition of "any other person interested" as laid down in Sec. 145(5) Code of Criminal Procedure. In this view of the matter I hold that Chandan Singh had a right to file the objection as well as to file a revision before the Sessions Judge, Kumaon.
(3.) So far as the merits of the reference are concerned, in my opinion, it is well founded. But the SDM being of opinion that there did not exist any apprehension of breach of peace, it was not open to him to direct that possession of the property in dispute be delivered to Abdul Sattar. From the order of attachment, it is not clear from whose possession the property in question had as a matter of fact been attached. The official who went to the spot to effect the attachment has noted that the land was lying barren. In these circumstances, the order by the SDM releasing the property in favour of Abdul Sattar was not at all warranted in law. I, therefore, accept this reference made by the First Addl. Sessions Judge of Kumaon and quash the order of the SDM Bhaber -Haldwani dated 5 -9 -1970 directing the possession of the property in dispute to be delivered to Abdul Sattar.;