H.C.P. Tripathi, J. - (1.) THIS revision is directed against an order of a Magistrate 1st Class at Ghazipur in a case under Section 145 Code of Criminal Procedure.
(2.) ON a report from the police that there was an apprehension of breach of peace between Ishwar Rai and Krishna Kumar Rai on account of their dispute relating to land, a preliminary order was passed by the Magistrate on 26.3.62 attaching a number of plots and directing the two parties to file their written statements and to lead evidence in respect of their claim over the attached property. Subsequently, it appears that the applicants Udai Narain Rai and Param Hans Rai also got themselves impleaded as parties to the case. In his written statement Ishwar Rai asserted that there was no apprehension of breach of peace and that the plots were his Bhumidhari land over which he had been given possession since a long time and the other party had no connection with it. Ishwar Rai, Baijnath and Sheo Daras Rai filed affidavits in support of Ishwar Rai's exclusive claim over the plots in dispute. Param Hans also asserted to be in exclusive possession of the plots but did not rile affidavits in support of his claim. Krishna Kumar in his written statement alleged that there was no apprehension of breach of peace, that the land in question was the joint Bhumidhari land of a number of shareholders, that Ishwar Rai was not in possession of the land and that as the co -sharers could not come to terms about the cultivation of the land, they decided in Jeth last in order to avoid an internecine quarrel, that Udai Narain who was the major shareholder in the land should continue in possession of the same on behalf of all till the matter was finally settled and that it was Udai Narain who in accordance with the agreement between the co -sharers was in possession of the land. He filed an affidavit in assertion of his claim.
(3.) THE case of Udai Narain was similar to that of Krishna Kumar that the land in question belongs to a number of co -sharers who are all of the same family, that one fourth in the land was owned by him and that the rest three -.ourth was owned by 39 co -sharers including Ishwar Rai and that in accordance with the settlement arrived at between the co -sharers he was in possession of the land on behalf of all and that the case of Ishwar Rai to be in exclusive possession of the land was false. In support of the claim of Udai Narain, a number of co -sharers, namely, Prahlad, Abhai Narain and Chiranjiv filed their affidavits. Two other residents of the village Ram Chandra and Raja Ram also supported Udai Narain's claim on affidavits. A number of extracts from revenue records were also brought on the record which indicated that the plots in dispute were the joint Bhumidhari of 40 persons including Ishwar Rai, Krishna Kumar and Udai Narain. On 26.4.62 Krishna Kumar filed an application before the Magistrate alleging that the land in dispute was the joint Bhumidhari of a number of co -sharers, that a suit for partition in accordance with Section 176 of the UP ZA and LR Act was pending in court and that the rights of the parties would be finally determined in that suit and that the Magistrate was entitled to appoint a receiver within the provisions of Section 145 Code of Criminal Procedure and that the proceedings should be dropped or stayed till the matter was finally decided in the partition suit. This application, however, was rejected by the Magistrate.;