Asthana, J. - (1.) This is an application under Section 561(A), Criminal Procedure Code for the quashing of the order dated 16th June 1956, passed by Sri B. Naithani, Sub-Divisional Magistrate. Bharthana in a case under Section 145, Criminal Procedure Code.
(2.) The dispute in this case relates to seven plots in village Bijoli in the district of Allahabad. There are about 150 mango, Jamun and other kind of trees in these plots. These plots were recorded as Banjar in the revenue papers. After the abolition of Zamindari the applicants who were ex-Zamindar in that village made an application before the Sub-Divisional Officer, Bharthana for the correction of the entries in the revenue papers relating to these plots. They claimed that these plots were their groves and they had been in possession of it as grove-holders and that they might be recorded in the revenue papers as Bhumidhars. The Sub-Divisional Officer allowed the application and directed that the aforesaid plots should be recorded as groves. This order of the Sub-Divisional Officer was set aside by the Collector though there was no appeal before him against the decision of the Sub-Divisional Officer. The applicants then filed an appeal before the Commissioner and the Additional Commissioner who heard the appeal made a recommendation to the Board of Revenue for setting aside the order of the Collector on the ground that it was without jurisdiction. The Board of Revenue set aside the order of the Collector and also the order of the Sub-Divisional Officer and directed that the entries in the revenue papers shall be corrected according to the decision of the civil court. It appears that the opposite party, viz. the President, District Board Etawal had filed a civil suit in respect of the disputed land. He had claimed that the entries in the revenue papers with regard to this land were correct and as it was Banjar before the Zamindari Abolition and Land Reforms Act came into force it vested in Gaon Sabha and they had become owners of the land. An application for an interim injunction restraining the present applicants from interfering with their possession was made before the learned Civil Judge, The learned Civil Judge per his order dated 2nd June, 1954 found that the disputed land was grove and the applicants were in possession of it and they had been holding Mela on it. He, therefore, dismissed the application for temporary injunction. Against this order the opposite parties went up in appeal before the District Judge. The learned District Judge per his order dated 9th April, 1956 dismissed the appeal and maintained the decision of the learned Civil Judge. Thereafter the opposite parties made an application for the withdrawal of the suit with permission to file a fresh suit. The application was rejected. The suit had been filed on a deficit court fee and the opposite parties did not make good the deficiency though they were allowed time for the same. The plaint was, therefore, rejected. Thereafter the present application was made by the opposite parties under Section 145, Criminal Procedure Code on 9th June, 1956. It was alleged that they were in possession of the disputed land and that there was a dispute between them and the applicants and on account of it there was an apprehension of breach of peace. The learned magistrate on this application called for a report from the police. The police submitted its report on 13th June, 1956 and it was to the effect that there was no apprehension of breach of peace and that the opposite parties had made the application as a result of party feeling between them on one side and the present applicant on the other. It was also mentioned in this report that the Mela which was being held on the disputed land had passed off peacefully and was about to end. Another report was submitted by the same police officer on the 14th June, 1956. This report is as follows:- "Submitted mela passed as peacefully, separate report is attached." The separate report to which a mention was made in this report runs as follows:- "There is long standing dispute between the District Board and Sri Shyam Kishore Tandon. Applications from both the sides are very often received. The disputed lands if attached, there remains no apprehension of breach of peace. I would submit that orders for the attachment may kindly be issued because cattle market will be held in Bijauli twice a week."
(3.) It was on the basis of this latter report made on the 14th June, 1956 that the learned Magistrate on 16th June, 1956, passed the order in question which is sought to be quashed in this proceeding. It may be mentioned here that the preliminary order which was passed by the learned. Magistrate was not in conformity with the provisions of Section 145(1), Criminal Procedure Code as amended because according to this amended provision the learned Magistrate was required to ask the parties concerned to put in such documents or to adduce in affidavit the evidence of such persons as were likely to depose in support of their respective claims. After passing the aforesaid preliminary order the learned Magistrate submitted a report to the Collector on the 20th June, 1956 in which he made a request that the case under Section 145, Criminal Procedure Code and also the case for the correction of papers might be transferred to some other court for disposal. The relevant portions of the report submitted by the learned Magistrate on the 20th June, 1956 is as follows:- "There has never been any trouble over holding cattle fair and markets by the intermediary during the pendency of the civil suit till 4th june, 1956. The question is whether after the orders of the Civil Judge and the District Judge in Suit No. 33 of 1954, it would be just and proper to stop intermediary from holding cattle fair and market. It is difficult to ignore the effect of the orders of the Civil courts dated 2-6-1954 and 9-4-1955 passed by Civil Judge and District Judge respectively on the ground that ultimately that plaint was rejected for non-payment of court fees. I have, however, taken action under Section 145, Criminal Procedure Code and have attached the plots in dispute. In disagreeing with D.G.C.'s views I have already formed my opinion in the matter and have also expressed it. I request that the case under Section 145, Criminal Procedure Code and that of correction of papers be transferred to some other court for disposal.";