AGARWALA, J. - (1.) THIS is an application in revision by Shankar against an order made under Section 145, Criminal Procedure Code by a Magistrate of the first class of the district of Allahabad declaring that the opposite party is entitled to possession of the plots in dispute until evicted therefrom in due course of law.
(2.) IT appears that the plots in dispute were within the zamindari of two persons, Mt. Jannatunnissa Bibi and L. Manmohan Das, and were in the occupancy of a tenant Durga. On Durga's dying heirless, the plots were taken possession of by certain persons who were, however, ejected on a suit being filed by the two zamindars.
(3.) JANNATUNNISSA Bibi gifted her share of the property to her daughter Khairunnissa, wife of one Wahajuddin. On 29th December 1947, Wahajuddin lodged a report at the police station, Phulpur, alleging that Shankar along with some others was interfering with the possession of Mt. Khairunnissa over the plots in dispute and that there was a great danger of the breach of peace. The Sub -Inspector of police after enquiry reported that there was a dispute between the zamindars, each one claiming the plots to be his own Khudkasht and that tone was a danger of the breach of peace between the men of both the sides Nimber Ahir and others on the side of Wahajuddin, and Shankar and others on the side of L. Manmohan Das, and suggested that the plots in dispute be attached under Section 145, Criminal Procedure Code On receipt of this report the learned Magistrate passed a preliminary order under Section 146, Criminal Procedure Code, on 6th January 1948. It was in the following terms : "As there is apprehension of the breach of peace, I call upon the parties to put in their written statements of their respective claims. As the situation is one of emergency, I order the attachment of the property in dispute." In pursuance of this order, notices were issued to Mt. Khairunnissa through Wahajuddin husband and Nimber as party No. 1, and to Shankar alone as party No. 2. L. Manmohan Das on whose behalf Shankar was alleged in the police report to be claiming the plots was not impleaded in the case The plots were also attached and entrusted to Shankar party No. 2, the present applicant, as Supurdar. On 4th February 1948 an application, supported by an affidavit, was put in on behalf of Mt. Khairunnissa by Wahajuddin, her husband and Karpardaz. In this application, it was prayed that the proceedings under Section 145, Criminal Procedure Code, be dropped as they were initiated without any basis and the plots in dispute be released in favour of Mt. Khairunnissa; and in the alternative if this was not possible, then another Supurdar be appointed in place of Shankar who was opposite party in the case. In the affidavit filed in support of the application, it was stated by Wahajuddin that there was no danger of the breach of peace on his side and that, therefore, the proceedings under Section 145, Criminal Procedure Code, should not be continued. The Magistrate ordered that some other suitable person should be appointed as Supurdar in the presence and with the consent of both the parties. The parties thereafter filed their respective written statements on 7th April 1948 Shankar alleged that there was no apprehension of the breach of peace, that he along with others was cultivating the plots as partners of the zamindars on condition that out of the whole proceeds, one half would go to the actual tiller of the land in dispute and out of the remaining half, one fourth will be taken by L. Manmohan Das and three -fourths will be taken by the other zamindar Jannatunnissa Bibi, that there was a dispute between the two sons -in -law of Mt. Jannatunnissa Bibi, namely, Abdul Qadir and Wabajuddin, and so the arrangement was now being sought to be disturbed by Mt. Jannatunnissa Bibi.;