G. K. SHARMA, J. - (1.) THE Additional Sessions Judge, Tonk vide his judgment dated 30th January, 1973, by which he decided the revision petition No. 23/ 1972 has referred the matter to this Court for quashing the order of the Sub-Divisional Magistrate, Malpura, which is as under : "receiver dono pakshkaran ko mutnaja ka kabja Shamlati me wapis supard karawein. "
(2.) KHASRA Nos. 539 & 540, situated in Viliage-Lamba were purchased by Sheokaran, from Narain son of Birsha Goojar for Rs. 4000/- on 28th May, 1970. Sheokaran, claims himself to be in actual physical possession of the land. According to him, no other person has any connection whatsoever with this land. KHASRA Nos. 500, 501, & 502 situated in Village Lamba Kalan, were purchased by Surajmal, brother of Sheokaran, from Sheoji, on 28th May, 70. Surajmal claims himself to be in exclusive possessson of the purchased land. Ramnarain submitted an application in the Court of SDM, Malpura, u/ss. 107/117 Cr. P. C. alleging that the land comprised of Khasra Nos. 500, 501, 502, 539 & 540 were in joint possession of the parties, and a case for partition was pending before the Munsif Magistrate, Malpura. Gopi and Nathu, brothers of Surajmal and Sheokaran, wanted to carry away the standing crops from the fields mentioned above and as such, there was an apprehension of breach of peace. Ramnarain, therefore prayed that Gopi and Nathu be bound down for keeping the peace. The application of Ramnarain was forwarded to the SHO, Todaraisingh, who reported that Khasra Nos. 500, 501, 502, 539 & 540 be attached. The learned SDM, Malpura recorded the preliminary order on 21st Mar. , 82, and required the parties to file their respective claims. The properly was attached as recommended by the SHO, Todaraisingh, and the Tehsildar, Todarai singh, was appointed as Receiver. Both the parties filed their respective affidavits and documents in support of their claims, The learned SDM came to the conclusion that the land in dispute was in joint possession of the parties, and so, he held that the proceedings u/s. 145 Cr. P. C. be dropped. He, however, further ordered that the property be handed back to the parties. Surajmal and Sheokaran felt aggrieved by the order and submitted a revision petition before the Addl. Sessions Judge, Tonk. while disagreeing with the order of the learned SDM, the learned Addl. Sessions Judge was of the opinion that an order u/s. 145, Cr. P. C. could only be passed in favour of a party in exclusive possession of the property and according to him, no declaration of joint-possession could be made under this section. It was also the view of the learned Addl. Sessions Judge that where a Magistrate finds after inquiry that the parties were in joint actual possession of the property in dispute, he should drop the proceedings started u/s. 145. Cr. P. C. and that he should not further order the parties to be placed in joint-possession and while accepting the revision petition, the learned Addl. Sessions Judge was of the opinion that the order of the learned SDM deserved to be quashed. Here, a general notice was given to all the learned members of the Bar Association, to assist the Court in deciding the controversy, and assistance was given by a number of learned advocates. After hearing all the learned members of the bar and going through the provisions of ss. 107, 145 & 147 of the old Code of Criminal Procedure as well as that of the new Code The matter was threshed out in deep. The present case was u/ss. 107 & 117-of the old Cr. P. C. on the report of the SHO, the learned SDM found that there was an apprehension of breach of peace, and he bound down both the parties' and attached the disputed property. The Tehsildar, Todaraisingh, was appointed Receiver for this disputed property. After recording evidence, the learned Magistrate was of the opinion that both the parties were in joint-possession of the disputed land, and so he directed the Receiver, to hand over possession of the disputed land jointly, to both the parties. Whether such an order could be passed by the learned Magistrate? Whether that, order was in conformity with the provisions of sec. 145 & 146, Cr. P. C?
(3.) ACCORDING to the provisions of the old Cr. P. C. when the Magistrate is satisfied from the police-report or other information that a dispute likely to cause a breach of peace, exists, concerning any land, within the local limits of his jurisdiction, he shall make an order in writing requiring both the parties to attend his court in person or by pleaded, for putting their respective claims with regard to that land, and also regarding actual possession of the subject-matter in dispute. And, then the Magistrate shall inquire and decide the question whether any or which of the parties at the date of the order before mentioned in such possession of the said subject. If the Magistrate decided that one of the parties was in possession of such disputed property, he shall issue an order declaring such property to be entitled to possession thereof until evicted therefrom in due course of law. If the Magistrate is of the opinion that any of the parties was in such possession, and he is unable to decide as to which of parties was in such possession, then, he may proceed u/s 146 Cr. P. C. by attaching the disputed property and draw up a statement of the facts of the case and forward the record of the proceeding to a civil court of Competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order. Thus, according to the provisions of old Cr. P. C, if the Magistrate finds after inquiry that one of the parties is in possession of the disputed property, he shall pass an order u/s. 145. Cr. P. C. but, in case, he is unable to decide the question of actual possession then, the matter would be referred to a civil court, as envisaged in S. 146, Cr. P. C. In the present case, the learned SDM held that both the parties were in joint-possession of the disputed property, at the time of passing of the order u/s 145, Cr. P. C and he ordered the Receiver to hand over the possession jointly to both the parties. So this is to be seen whether the finding of the learned Magis-trate was a positive one, or he has been unable to decide as to which of the parties was in possession of the disputed property. Mr. Surendra Vyas, the learned counsel for the petitioner, while arguing the case, suggested that passing of the order by the learned SDM means that he was unable to decide as to which of the parties was in actual possession of the disputed property, and in this context, he placed reliance on the case of Chiranjilal vs. Mahadeo Prasad (!) wherein, it was held as under: "if there are two joint owners in possession jointly it is a case where the Magistrate cannot decide which of them was in exclusive possession. Consequently when two joint owners are fighting and there is a likelihood of a breach of the peace between them, a Magistrate is entitled to pass an order u/s. 146. " While pointing out the case of Chiranjilal (supra), Mr. Vyas argued that in this case, the learned SDM was unable to decide as to which party was in actual possession of the disputed land, and therefore, instead of passing the order of handing over possession thereof to both the parties jointly, the learned Magistrate should have proceeded under sub-s. (2) of S. 146, The learned Magistrate referred the matter with his report to the competent civil court for deciding the question of actual possession over the disputed land. While arguing, Mr. Vyas brought to my notice the case of Naharsingh Vs. The State (2) which was decided by a division bench of this Court. The case of Nahar Singh (Supra), was more or less similar to the present case. In that case also, the parties were found in actual joint possession, and the matter was referred to this Court by the concerned Sessions Judge. This Court in that case, while deciding the reference pointed out three contingencies. The first question which was dealt with in that reference was whether a Magistrate was competent to initiate proceedings u/ss. 107 & 145, Cr. P. C simultaneously, and after discussing the entire aspect, it was observed that it is within the discretion of the Magistrate whether to proceed simultaneously or not u/ss. 107 & 145, Cr. P. C. in cases in which there is a dispute between the two parties about some immovable property. The second question was presumably with regard to the fact that the Magistrate after inquiry u/s. 145 Cr. P. C. finds that the property in dispute is in joint possession of the parties, and that case was registered on the fact that the Magistrate had held that one of the Baras was in joint possession of the parties. So, the query was whether the Magistrate 'should have passed that order. While dealing with this question, Hon'ble Judges of this Court; discussed that entire case-law of Chiranjilal (supra), and did not agree with the principle laid down in the case by the Allahabad High Court. This question suggested 2 probabilities - (1) Whether the order should be u/s. 145 Cr. P. C. & if so, what, or (2) Whether the order should be under S. 146, Cr. P. C, and in that context, the Hon'ble Judges observed as under: "it is not necessary for us to quote authorities so far as the first part of the question is concerned for all the High Courts are agreed that where a court comes to the conclusion that the parties before it are in joint possession of the property in dispute on the date of the order no order u/s. 145 in favour of any party declaring him to be entitled to possession until evicted in due course of law and forbidding all disturbances of such possession until such eviction, can be passed under sub-s. (6) of s. 145, Cr. P. C. The question then arises is whether an order should be passed dismissing the case u/s. 145, or the Magistrate should proceed under s. 146 sub-s. (1), Cr. P. C. " Their Lordships in that case, then considered the third question, and while dealing with this question, they observed as follows: "we now come to the third question. This question, also pre-supposes that the Magistrate has come to a finding that the property was in joint actual possession of the parties. The question further pre-supposes that the Magistrate apprehends a breach of the peace between the parties on account of this. We are then asked whether the Magistrate is competent to ask for security to keep the peace u/s. 107 Cr. P. C. in two circumstances, namely, (a) where the proceedings were initiated under ss. 145 & 147, Cr. P. C. and (b) where the proceedings were taken exclusively u/s. 145 Cr. P. C. We have already indicated that there should not be a mixed proceeding both under ss 145 & 147. Properly speaking, proceedings under ss. 145 & S 07 should be separate. If they are separate, the Magistrate can drop the proceedings under s. 145, and pass such order as he thinks fit in the proceedings under s. 107. If, however the Magistrate has taken the irregular course of having mixed up proceedings under ss, 145 8c 107 Cr. P. C. he can drop those proceedings and by a separate order, commence proceedings under s. 107. Where, however, proceedings have been taken exclusively u/s. 145, Cr. P. C, the Magistrate cannot pass an order u/s 107, Cr. P. C, in those very proceedings & they must be dropped but as stated above, it is open to him to start fresh proceedings by order u/s. 107. Cr. P. C. if he is satisfied that such action is necessary & to proceed according to law. This is our answer to question No. 3. " In view of the rinding in the case of Naharsingh (supra) the position of the present case becomes clear. The learned SDM in this case, found both the parties to be in joint possession over the disputed land, and in that circumstances the proper order for the Magistrate was to have passed order to drop the proceedings u/s 145 Cr. P. C The order asking the Receiver to hand over the possession of the disputed land, jointly to both the parties, was not a correct order, and it is liable to be set aside. But, even then the problem is not solved. Because, no doubt this reference is only for quashing the order of the SDM, but, in the interest of justice, it is necessary to give some guidance for the subordinate court for such matters. What would be the proper course in such cases when the Magistrate apprehends a breach of peace? In the case of Naharsingh (supra), the position was that there were no proceedings u/s, 107, Cr. P. C. and no order was passed u/s. 113, Cr. P. C by the Magistrate. Therefore, their Lordships were unable to pass any order with regard to other proceedings in that case. Their Lordships had felt that an apprehension of breach of the peace was there, and so, the direction was that if the Magistrate feels or apprehends a breach of the peace, then, he should start fresh proceedings u/s. 107, Cr. P. C. In that case, the Magistrate should have issued notices to the parties, as provided in S. 107, Cr. P. C. But, as there was no case u/s. 107 Cr. P. C. pending before the Magistrate, the simple order in that case was to quash the proceedings, while observing that in the case" of finding of joint possession over the disputed property, proceedings u/s. 145 Cr. P. C. should be dropped. ;