H.P. Asthana, J. - (1.) THIS is an application in revision by one Sahib Khan and arises out of proceedings Under Section 145 Code of Criminal Procedure.
(2.) IT appears that Sahib Khan, was the tenant of certain plots and he was ejected from them Under Section 171 of the U.P. Tenancy Act, 1939. After his ejectment the plots in dispute were let out to Aslam Khan and some other persons. When Act X of 1947 came into force, an application was made Under Section 27 of the aforesaid Act to the revenue court by Sahib Khan for his reinstatement over the plots from which he had been ejected. Aslam Khan and others filed an objection. Their main contention was that they could be ejected only by means of a suit Under Section 175 of the U.P. Tenancy Act. This objection was disallowed and was confirmed in appeal. It was decided that Aslam Khan and others were to deliver possession of the disputed plots to Sahib Khan after the expiry of three years. They did not deliver possession with the result that Sahib Khan made an application in the revenue court for delivery of possession and, as appears from the dakhalnama dated the 28th September, 1951, possession was delivered to him. After some time Sahib Khan made an application Under Section 145, Code of Criminal Procedure that he was in possession of the disputed plots but Aslam Khan and others wanted to disturb his possession and consequently there was an apprehension of the breach of peace. The plots in dispute were attached on the police report which was obtained by the learned magistrate after the Applicant on Under Section 145 Code of Criminal Procedure He directed both the parties to file their written statements and produce their evidence in support of their respective possession. As required both the parties filed their written statements and produced evidence in support of their possession. Sahib Khan examined himself and one other witness, namely, Pir Mohd. and Aslam Khan produced three witnesses besides himself. Sahib Khan also filed the dakhalnama dated the 28th September, 1951, in order to support his possession. The learned magistrate does not seem to have taken any pains to consider the evidence which was produced before him. He shirked his responsibility and probably thought it best to take shelter under the provisions of Section 146, Code of Criminal Procedure The relevant portion of his judgment in this connection runs thus: The opposite -party examined Aslam Khan, Ram Bahadur, Pir Mohd. and Mankhan, all of whom supported Aslam Khan. From a perusal of evidence on record and the fact that a revenue suit on the question of possession between the parties concerning the same land is pending before the Hon'ble Board, I feel that the case is not one in which I am in a position to arrive at a conclusion regarding the possession of either of the parties on the land in suit. I do not think any of the parties has given sufficient evidence to establish its possession over the land in suit within two months preceding the date of filing the application. There is apprehension of breach of peace over the land in suit and I am perfectly satisfied if the attachment order is removed, the parties shall fall out thereby causing breach of peace in that locality. I therefore Under Section 146 Code of Criminal Procedure order that the property shall remain attached till a competent court decides the issue of possession and so long as there is apprehension of breach of peace. I do not think that this is a correct approach by the learned magistrate. Sub -Section 4 of Section 145 Code of Criminal Procedure clearly provides that: the Magistrate shall then, without reference to the merits of the claims of any such parties who had a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject.
(3.) IT will appear from a perusal of the above Sub -section that the magistrate has to apply his mind in order to decide the question of possession upon the basis of the evidence produced before him and it is not sufficient for him to say that he has not been able to arrive at any finding regarding possession without taking into consideration and without analysing the evidence produced before him.;