- (1.) THIS is an application in revision by Sri Chand against an order dated 24-3-1952, passed by the learned District Magistrate of Agra by which ha refused to interfere with an order dated 29-10-1951, passed by the learned City Magistrate of Agra in a case under Section 145, Criminal p. C. The case furnishes an instance which illustrates that the provisions of Sections 145 and 146, Criminal P. C. , are so easily attracted by Magistrates with utter disregard of what those sections really contemplate before an action under those sections can be warranted.
(2.) ON 18-9-1950, a complaint was lodged by Dhundi Ram opposite party against Sri Chand, applicant in the Court of the City Magistrate which runs as follows: "the applicant has a plot of land in the Naya Nagla within police circle Chatta in Agra. There exists a temple over this land. The opposite party who plies his cart on hire used to stable his bullocks by the side of the road. The road was under repairs by the Municipality. The opposite party then temporarily tethered his cattle over the land of the applicant by his leave or license. Later on the opposite party started entertaining evil designs and was prepared to pick up fight with the applicant. The opposite party now intends to make construction over this land very soon. If he is not prevented it might lead to serious breach of the peace. Action may, therefore, be taken. " On the application the learned City Magistrate directed the station officer of police station chatta to inquire and report by 28-9-1950. The report was not forthcoming and time was enlarged and ultimately the S. O. made the following report on 2-1-1951. "dhundi Ram and others have taken lease of 6 bighas of land from the Nazool Department. From out of that land he had left vacant a portion with the intention of constructing a temple, and the rest of the land was built upon and converted into 'abadi'. Since the disputed piece of land was lying vacant, Sri Chand Jatav used to tether his cattle on it. Dhundi Ram and others now desire to construct a temple over this land, but Sri Chand has been opposing and resisting it. Under these circumstances there is apprehension of breach of peace. Orders are solicited for attaching the property. "
(3.) UPON that report the learned City Magistrate passed the following order on 3-1-1951: "attach property. Issue notice to opposite party. Pis date for evidence. " sri Chand filed a written statement before the City Magistrate contending that he has been in exclusive possession over this land for nearly three years; that there was no apprehension of a breach of the peace and that Dhundi Ram was not in possession over the property within the last three years. The City Magistrate required the parties to produce such evidence as they liked in support of their respective claims. Dhundi Ram relied upon a lease purported to have been executed in his favour and in favour of others by the Nazool Department on 22-8-1922. He did not, however, produce any oral evidence in support of his contention that he was in actual physical possession over this land or that there was really an apprehension of breach of peace. There was further no evidence strictly to connect the identity of the disputed piece of land with any part of the land covered by the lease aforesaid. On the other side there was the evidence of sri Chand supported by two other wit nesses Daulatia and Parbhati, all of whom swore that Sri chand has been in actual physical pos session over this land for nearly the last three years and there was really no apprehension of breach of peace with regard to this plot of land. It may be noticed that the police Sub inspector who had made the report dated 2-1-1951, was not produced on behalf of Dhundi Ram, nor was he examined by the City Magistrate in order to refute the contention of Sri Chand and his witnesses that Sri Chand was really in possession for the last three years and there was no likelihood of breach of peace. In spite of these circumstances the learned City Magistrate by his order dated 29-10-1951, observed as follows: "for the applicant in this case no witnesses have been examined to prove that he was in actual physical possession of the land in dispute. He has however produced one document which is a lease of the Municipality, this land being given by the Municipality to him in the year 1922. Prom this document it is clear that at one time or the other the applicant was in possession of the land but it does not necessarily lead to the conclusion that he was in possession of the land when proceedings under Section 145, Criminal P. C. , were started. This document goes to prove the proprietary rights or rather the rights of a lessee as given to the applicant by the Municipal board. On the other hand two witnesses have been examined by the opposite party and from this evidence it appears that an attempt has been made to bring about that the land was in possession of the opposite party and as such he was in actual physical possession of it, but the evidence produced by the applicant and the opposite party is insufficient and it is not possible to come to a definite conclusion as to which party was in actual physical possession. In view of this I order that the land remains attached and the dispute be referred to a competent court by which the rights of the party can be determined. ";