MODI, J. - (1.) THIS is a revision by Samdarsingh of Soliana, Tehsil Nagaur, against the order of the learned Sub-Divisional Magistrate, Nagaur, dated 29th November, 1951, in a case under sec. 145 Cr. P. C. The material facts leading up to this revision may shortly be stated as follows:
(2.) SAMDARSINGH moved the police that the opposite parties had taken unlawful possession of a certain house situated in Soliana on 21st August, 1948, and that there was an apprehension of a breach of the peace and, therefore suitable action be taken against them. Thereupon the Sub-Inspector of Police Station Moondwa presented an application in the court of the learned Magistrate against the opposite parties praying for action under sec. 145 Cr. P. G. The learned Magistrate passed a preliminary order on 1st September, 1941, and called upon the opposite parties to file a written statement of their claim, which they did. It also appears that the house was attached by the learned Magistrate. After recording the evidence of the parties, the learned Magistrate seems to have completely misdirected himself and came to the conclusion that the property in dispute appeared to him to be 'lawaldi' property of one Binja who had died about eight years ago, and he, therefore, passed an order that proceedings under the Escheat of Property Ordinance, 1921, of the former State of Jodhpur be started. The learned Magistrate further directed that the opposite parties Chhotu be allowed to remain in possession of the house as tenants on their executing a rent-deed. This order was passed on 29th November, 1951. The petitioner took a revision from the above order to the learned District Magistrate, Nagaur, who dismissed the revision by his order dated 5th June, 1952. Hence the present revision. I am satisfied that this revision must be accepted. Both the learned Magistrate and the learned District Magistrate seem to have completely ignored the provisions of sec. 145 Cr. P. C. It was the paramount duty of the courts below to have addressed themselves to the question as to which of the contending parties was in possession of the house in dispute at the date of the preliminary order, and where a case of forcible dispossession was put forward to further find out whether such dispossession took place within two months next before the date of preliminary order and in that case to restore such dispossessed party into possession. The learned Magistrate did nothing of the kind and instead lost himself in a supposed case under the Escheat of Property Ordinance which, for aught I know, may or may not be raised on the facts of this case. If at all such a case was raised, it was open to the learned Magistrate in his capacity as Sub-Divisional Officer to have separately started such proceedings and dealt with the case according to law. As Magistrate, however, it was none of his business to drop these proceedings and pass the order which he did acting under sec. 145 Cr. P. C. I would draw special attention of the courts below to sub-sec. (4) of sec. 145 Cr. P. C. according to which the learned Magistrate is required, without reference to the merits of the claims of any such parties, to a right to possess the subject of dispute, to decide the question of possession after having recorded such evidence as might be led by the parties on the point and clearly to specify whether any and which of the parties was in possession of the subject matter in dispute at the date of the preliminary order or within two months next before the date as the case may be. Sub-sec. (5) of sec. 145 further permits any of the parties to show that no such dispute as alleged at all existed, and it is in such a case only that it is open to the Magistrate to cancel the order passed by him under sub-sec. (1) of sec. 145. Apart from this however the learned Magistrate must on the basis of the evidence led before him declare such party as appears to him to have been in p6ssession to be so and forbid disturbance of such possession by the other party until evicted therefrom in due course of law. In case the learned Magistrate is not able to come to any conclusion as to which of the parties is in possession, it is open to him to proceed under sec. 146 Cr. P. C. and attach the property until a competent court has determined the rights of the parties thereto or the person entitled to possession thereof. As a flagrant breach of the provisions of sec. 145 Cr. P. C. has occurred in the present case, I have no alternative but to allow this application, set aside the order of the courts below and send the case back to the learned Sub-Divisional Magistrate, Nagaur, for taking appropriate proceedings in the light of the observations made above. It will be open to the learned Magistrate to re-attach the land in case he considers it necessary; but before he does so, he will give fresh opportunity of hearing to both parties and then pass an appropriate order in that respect. .;