K.S.LODHA, J. - (1.) THIS matter relates to proceedings under Sections 145 and 146 Cr. PC and arises under the following circumstances. On 2 -5 -83 the SHO, Hanumangarh Town filed a complaint stating that there was dispute about possession of the land described in that complaint between Kumari Dropdi the alleged adopted daughter of deceased Rekha Ram on the one hand and Mani Ram and others who claim the land in dispute under a will from the deceased Rekha Ram and there was apprehension of breach of peace on that account. On this report, the learned Executive Magistrate, Hanumangarh, drew a preliminary order Under Section 145 Cr. PC on 4 -6 -83 and also directed the attachment of the land Under Section 146 Cr. PC. He appointed the Tehsildar (Revenue), Hanumangarh, to be the receiver on this property. On 11 -5 -83, the learned Magistrate after hearing both the parties dropped the proceedings by recourse to Section 145(5) Cr. PC. However, on a revision filed by Kumari Dropdi said order was set aside by the learned Addl. Sessions Judge, Hanumangarh, by his order dated 8 -8 -83 and he directed the proceedings to continue. The proceedings were then continued and by his order dt. 27 -1 -84, the learned Magistrate declared the possession of Mani Ram and others on the date of the preliminary order and within two months preceding it. He further directed that the order of attachment of the land is withdrawn and the receiver will hand over possession to Mani Ram and others. Aggrieved of this, Kumari Dropdi went up in revision before the learned Addl. Sessions Judge No. 1, Hanumangarh Only one contention was raised before the learned Sessions Judge and that was that even through the learned Magistrate could have continued the after the attachment of the land Under Section 146(1) Cr.PC, he could not have withdrawn the order of attachment and direct the receiver to hand over possession to Mani Ram and others because attachment made Under Section 146 Cr.PC on the ground of emergency was to continue even after the declaration of the possession of any of the parties Under Section 145(4) till the rights of the patties are finally determined by a competent court. This argument found favour with the learned Addl. Sessions Judge and he while accepting the revision set aside the order of the Executive Magistrate withdrawing the attachment and directed that the Magistrate will take back the possession from Mani Ram and others and would keep the land in dispute under attachment and under the receivership of the Tehsildar till the rights of the parties are decided by a civil court or another receiver is appointed by the civil court. Aggrieved of this Mani Ram and others have come up in revision.
(2.) I have heard the learned counsel for the parties and have gone through the record. Although the matter is at admission stage, since the record had already been received and the parties are prepared to argue it out the revision is being finally disposed of at this stage. The learned counsel for the petitioners urged that the view taken by the learned Magistrate is entirely wrong and the order passed by him is contrary to the view taken by the Hon'ble Supreme Court in Mathuralal v. Bhanwarlal : 1980CriLJ1 and : AIR1985SC472 . On the other hand, the learned counsel for non -petitioner No. 2 vehemently supported the order of the learned Addl. Sessions Judge and urged that even though the possession of the present petitioners had been declared by the learned Magistrate, the attachment could not have been withdrawn unless the Magistrate found that there was no longer any likelihood of breach of peace with regard to the land in dispute or till rights of the parties are finally decided by a competent court. In support of his contention, he placed reliance upon Mansukh Ram v. State 1977 Cri.LJ 563 and Umrao v. State of Rajasthan 1976 Raj. Cri. Cases 94. It was also contended by the learned counsel for the petitioners that before the initiation of the proceedings under Section 145 Cr PC the non -petitioner No. 2 Kumari Dropdi had already filed a suit before the revenue court for declaration of her rights in respect of the land in dispute and had applied for the appointment of a receiver but that application had been rejected. He further pointed out that in that suit the present petitioners had moved an application Under Section 212 of the Rajasthan Tenancy Act and the re -upon an injunction had been issued against the plaintiff Kumari Dropdi not to interfere with the possession of the present petitioners on the land in dispute and, in the case of these facts, i e. when a competent court was seized of the matter, the recourse to proceedings Under Section 145 was not proper and now when the learned Magistrate has already declared the possession of the present petitioners, the learned Addl. Sessions Judge was not at all justified in directing the re -attachment of the property in view of his interpretation of Section 146 Cr.PC.
(3.) THE learned counsel for non petitioner No. 2 had not refuted the statement of fact about the filing of the suit by Kumari Dropdi, the dismissal of her application for appointment of receiver in that suit and the grant of temporary injunction in favour of the present petitioners and against the non petitioner No. 2. He however urged that despite the pendency of the revenue suit, the proceedings Under Sections 145 and 146 Cr. PC could continue as there was apprehension of breach of peace and the matter had not finally been determined by a competent court so far as the rights of the parties are concerned.;