- (1.) THIS is an application in revision filed by Umrao, (hereinafter referred to as party No. 1, along with his real brothers, Kashi Ram, Mohar Singh, and Sube Singh), against an order of the Sub-Divisional Magistrate, Khetri, dated 12-7-1974, in a proceeding under sec. 145, Cr. P. C. whereby the disputed land cover-ed by Khasra Nos, 2 measuring 9 Bighas 15 Biswas, 8 measuring 3 Bighas 4 Biswas, 19 measuring 4 Bighas 10 Biswas and 21 measuring 4 Bighas 5 Biswas and situated in Dbani Khatoti village Sator was attached under sec. 146, Criminal Procedure Code, 1973, after drawing a preliminary order containing the grounds on which the Sub-Divisional Magistrate was satisfied that a dispute likely to cause breach of peace exists between the party No. 1 and party No. 2 concerning the land in dispute.
(2.) THE relevant facts giving rise to this revision-petition may be briefly stated as follows: - THE disputed land consists of four Khasra numbers measuring 21 Bighas and 14 Biswas in toto. THE land is situated in Dhani Khatoti village Sator and was recorded in the revenue records in the Khatedari of Bagta deceased. After the death of Bagta on 17-2 1965, a mutation order was passed in respect of this land in favour of his four sons, namely, Umrao, Mohar Singh, Kashi Ram and Hazari on 18-3-1965. THE said mutation order was given effect to and the names of the above-named four sons of Bagta were entered in the column of Khatedars in Jamabandi records of Sam-vat 2025 to 2029. Apart from this, a pass book of these Khasra numbers was also issued by the Revenue authorities to Umrao and his three brothers on 10-7-1973. In this manner, part No. 1 Umrao and his three brothers have been in peaceful possession of the land in dispute and have been paying the rent thereof to the Revenue Department. Sheonarain and Surja Ram members of party No. 2, who are sons of Richhpal claimed to be the sons of Bagta and on the basis of their claim got a new pass book issued from the Revenue authorities in respect of the subject of dispute on 1-6-1974 without any notice to party No. 1 Umrao and his brothers. THE new pass book was obtained by Sheonarayan and Surja Ram during the pendency of a suit for division of holdings which they have instituted in the court of the Sub-Divisional Magistrate, Khetri, on the ground that they also were the sons of Bagta. After obtaining the new pass book, Sheonarain and Surja Ram alias Suraj Bhan made a report to the Station House Officer, Bhuhana, that there exists a dispute likely to cause breach of peace bet-ween them and party No. 1 in respect of the possession of the land in dispute and that necessary action should be taken. THE Station House Officer, Bhuhana, made a report to the Sub-Divl. Magistrate, Khetri, on 11-7-1974 about the existence of a dispute likely to cause breach of the peace in respect of the land. He further reported that the case was one of emergency and that the land in dispute should be attached so as to prevent the parties from disturbing the peace. THE Sub-Divisional Magistrate drew up a preliminary order on 12-10-1974, stating the grounds of his being satisfied that a dispute likely to cause breach of peace existed in respect of the land and requiring the parties concerned in the dispute to appear before him and to file written statements of their respective claims as respects the actual possession of the land in dispute. After passing the preliminary order, the learned Magistrate passed an order for interim attachment of the land under sec. 146, Cr. P. C. because in his opinion it was a case of emergency. By the same order, he appointed the Naib-Tehsildar, Khetri, to be the receiver of the land after its attachment. Aggrieved by this order, Umrao has come up in revision to this Court. Notice of this revision-petition was given to the non-petitioners and the record of the lower court was called for. Mr. N. L. Tibrewal appeared on behalf of party No. 2 and contested the application-in-revision. Before arguments were advanced on the merits, a preliminary objection was raised by the learned counsel for the non-petitioners i. e. party No. 2 that the revision-petition cannot be entertained against the impugned order as it is an order of an interlocutory nature. Mr. Tibrewal invited my attention to the provisions contained in sub sec. (2) of sec, 397, Cr. P. C. and contended on their strength that the powers of revision conferred by sub-sec. (1) of sec. 397, Cr. P. C. cannot be exercised in relation to an interlocutory order passed in any proceeding. He relied upon an authority of this Court - Dhola vs. The State (l), wherein an interlocutory order has been defined as one which is passed at some intermediary stage of a proceeding and which is incidental to the principal object of the action, namely, final determination of the rights of the parties. Mr. P. N. Datt, on the other hand, argued that the impugned order does not fall within the purview of interlocutory orders after the commencement of the new Code of Criminal Procedure and that it is a final order in the sense that the attachment order passed under sub sec. (1) of sec. 146, Cr. P. C. is to continue until a competent court has determined the rights of the parties to the subject of dispute with regard to the person entitled to the possession thereof and that once such an order has been passed, the proceedings under sec. 145, Cr. P. C. must come to an end. I have considered the rival contentions. At the outset it may be observed that under the old Code of the Criminal Procedure, 1898, the Magistrate was empo-wered to attach the subject of dispute in case of emergency in exercise of his powers conferred by the third proviso to sub-sec. (4) of sec. 145, Cr. P. C, which reads as follows; - "provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section. " The order of attachment in case of emergency subsisted till the Magistrate had passed a final order u/sub-sec. (6) of sec. 145 unless he cancelled the preliminary order u/sub-sec. (5) of sec. 145, Cr. P. C. The wordings pending his decision under this section in the third proviso to sub sec. (4) of sec. 145 of the Old Code clearly indicated that an attachment of the subject of dispute did not subsist after the Magistrate has decided the entire proceedings finally. In the proviso quoted above, the interim attachment could not be made to continue until the rights of the parties to the land in dispute with regard to the person entitled to the possession thereof have been determined by a competent court. Hence under the old Code the order of attachment was clearly an interlocutory order made in the case of emergency during the pendency of the proceedings under sec. 145, Cr. P. C. But after the commencement of the new Code there is a change in the legal position because under the new Code the provision of attachment in case of emergency contained in sec. 145, Cr. P. C. has been incorporated in sec. 146, Cr. P. C. Now the Magistrate can attach the property indefinitely until such time as the competent court has decided the rights of the parties to the subject of dispute with regard to the person entitled to the possession thereof. The main object of the attachment of the land in dispute under sec. 146, Cr. P. C. , in case of emergency is to keep the property in custodia legis in order to prevent the contesting party from resorting to the breach of the peace in their efforts to obtain the actual possession thereof. As soon as the land is attached in a case of emergency and the property is kept in the custody of the Court, the said object is achieved and, in my humble opinion, the proceedings under sec. 145, Cr. P. C. should come to an end, because the attachment is made to subsist until the claim of the parties to a right to possess the subject of disput is deter-mined by a competent court.
(3.) LOOKED from another aspect also, the legal position appears to be the same. If after attaching the subject of dispute in a case of emergency under sub-sec. (1) of sec. 146, Cr. P. C. the Magistrate makes a proper inquiry into the question of possessi-on and decides that one of the parties was or should, under the proviso to sub sec. (4) of sec. 145, Cr. P. C. be treated as being in possession of the subject of dispute, he shall declare the possession of such party and when he proceeds under the proviso to sub-sec. (4), may restore to possession the party forcibly and wrongfully dispossessed. But after once having attached the subject of dispute in a case of emergency, he cannot restore to possession the party in whose favour he passes the final order under sub-sec. (6a) of sec. 145, Cr. P. C. , because the attachment shall continue until such time as a competent court has decided the rights of the parties to the subject of dispute. It will not be out of place to mention that the Magistrate is not a competent court because he is required under the law to decide the question of possession without reference to the merits of the claims of any of the parties to a right to possess the subject of dispute. Hence after attachment of the subject of dispute in a case of emergency under sub-sec. (1) of sec. 146, Cr. P. C. a proper inquiry into the question of possession as envisaged by sub-sec. (4) of sec. 145, Cr. P. C. is of no use, because even after passing a final order under sob-sec. 6a of sec. 145, Cr. P. C. an attachment has to be continued until determination by a competent court of the rights of the parties to the subjects of dispute with regard to the person entitled to the possession thereof. In this view of the matter, the impugned order passed by the Sub Divisional Magistrate, Khetri, attaching the land in dispute on the ground of emergency under sec. 146, Cr. P. C. is a final order. Mr. Tibrewal further contended that under the proviso to sub-sec. (1) of sec. 146, Cr. P. C. a Magistrate can raise an attachment whenever he is satisfied that likelihood of a breach of peace no longer exists. According to him, in view of the proviso, no finality is attached to an order of attachment under sub sec. (1) of sec. 146, Cr. P. C. I am unable to subscribe to the view of Mr. N L. Tibrewal on this point, because on the making of an order there is no longer any likelihood of a breach of the peace with regard to subject of dispute, the proceeding under sec. 145, Criminal Procedure Code itself comes to an end and the position of the parties is precisely the same as if no proceedings had been initiated at all under sec. 145, Cr. P. C. In such circumstances, a Magistrate has jurisdiction to pass an order raising an attachment but this does not mean that the order of attachment passed by him in case of emergency is an interlocutory order, because the attachment of the subject of dispute does not automatically cease upon there having been no longer any likelihood of a breach of peace. The wordings "may withdraw attachment at any time" clearly indicate that the Magistrate has a discretion to pass an order raising an attachment whenever he is satisfied that there is no longer any apprehension of breach of peace. The discretion of course has to be exercised in a judicial manner. Likewise the provisions that in the event of a receiver being subsequently appointed by any civil court in relation to the subject of dispute the Magistrate shall hand over the possession thereof to the receiver appointed by the civil court and discharge the receiver appointed by him do not change the complexion of the order passed under sub-sec. (1) of sec. 145. Cr. P. C. and do not make it essentially an interlocutory order. It appears that this provision is inserted in the new Code in order to avoid conflict of jurisdiction because it is obvi-ously undesirable that two receivers are appointed by different courts to take possession of or exercise any control over the same properties. Hence the preliminary objection raised by Mr. Tibrewal is overruled and it is held that the order being not an interlocutory order is revisable by this Court under sec. 397 read with sec. 401, Cr. P. C. On merits, it has been contended before me by the learned counsel for the petitioners that even if the claim of party No. 2 is accepted on the face of it as true, it amounts to a claim regarding undivided share in the disputed land and the sub-Divisional Magistrate had no jurisdiction to institute proceedings under sec. 145, Cr. P. C. in such cases as the dispute was between Co-Khatedar tenants regarding joint posses-sion of the subject of dispute. In support of his above contention, the learned counsel for the petitioner has placed reliance on Nahar Singh vs. The State (2) wherein it has been observed that no declaration of joint possession can be made u/s. 145, Cr. P C. Mr. Tibrewal on the other hand, argued that in the instant case there is no material on the record to show that party No. 2 has put forward a claim for joint possession of the land in dispute. According to his submission, party No. 1 claims exclusive possession over the land in dispute being only four sons of Bagta while party No. 2 claims to be in possession of their share of the land in dispute and, therefore, it is a question of disputed possession and does not fall out of the purview of S. 145, Cr. P. C. ;