Sarjoo Prosad, C. J. - (1.) THIS is a reference made by the Additional District Magistrate of Ganganagar for setting aside some interlocutory orders passed by the trial Magistrate in a proceeding under sec. 145 of the Code of Criminal Procedure.
(2.) THE ground on which the reference has been made is that the disputed property was an evacuee property and as such under sec. 17 (1) read with sec. 4 and 8 (4) of the Administration of Evacuee Property Act, 1950 (Act No. XXXI of 1950) the land could not be attached and put in possession of a receiver by the order of the Magistrate and that the provisions of sec. 145 Cr. P. C. were not attracted to a case of this nature. THE relevant facts which give rise to the proceeding have to be clearly set Out in order to appreciate whether the above provisions of the Administration of Evacuee Property Act do or do not apply to the instant case. Mst. Lakshmi Bai widow of Moolchand Arora, brother of Jummaram, who is the opposite party to this proceeding, filed an application before the Magistrate alleging that the opposite party was seeking to disturb her possession or that of her tenant in respect of the disputed land on account of which there was an apprehension of a breach of the peace; and, therefore, steps should be taken against the opposite party under sec. 145 of the Criminal Procedure Code. It appears that an area of 37-1/2 bighas of land in Ganganagar had been settled with the petitioner's husband and the opposite party who were displaced persons, on account of their claim to compensation. After the death of her. husband, the petitioner alleged that she had difficulty in realising her share of the produce from the opposite party; and, therefore, she presented an application under sec. 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (Act No. 44 of 1954), claiming that the said area should be partitioned between the parties. Jummaram, the opposite party, opposed that application, but the Settlement Officer on 7th March, 1958 directed that the holding in question should be partitioned between the two co-sharers in equal halves. Thus out of an area of 37 Bighas 10 biswas of land, the petitioner Lakshmi Bai was allotted an area of 18 Bighas 15 biswas, while the remaining area was left in possession of the opposite party Jummaram. According to the petitioner, in pursuance of this order, the Naib Tehsildar effected partition and put her in possession of the area in question which is the subject matter of this proceeding on 15th March, 1958. The details of the said partition have been mentioned in paragraph 3 of her petition. After the partition, the petitioner stated that she had given the land to one Naraindas to cultivate the same on her behalf, but on 6th April, 1958 the opposite party sought to dispossess the petitioner and Naraindas from the land in question, on account of which the petitioner filed the application for a proceeding under sec. 145 of the Code on 23rd April, 1958. The Magistrate before whom the proceeding was pending directed attachment of the disputed land and appointment of a receiver in respect thereof. Against this interlocutory order the opposite party moved the District Magistrate who has made the reference to this Court on the ground that the property being evacuee property, the Magistrate had no jurisdiction to initiate proceedings under sec. 145 of the Act. It should be observed at this stage that against the order of the Settlement Officer, the opposite party had preferred an appeal to the Regional Settlement Commissioner who dismissed his appeal and thereafter he has gone in appeal before the Chief Settlement Commissioner, New Delhi; before whom the matter is still pending. The Chief Settlement Commissioner, however, passed an interim order directing stay of operation of the order of the Settlement Officer. It is on these facts that the matter has come up to this Court. The learned counsel Mrs. Chatterji for the petitioner Smt. Lakshmi Bai has opposed this reference. She contends that the Administration of Evacuee Property Act, 1950 has no application to the case at all, because the property after the allotment in satisfaction of claims is no longer evacuee property and is not governed by the provisions of that law. The facts indicate that the land had been already settled with the petitioner's husband and the opposite party and the partition was made on the basis of their claims. The opposite party Jummaram filed the Custodian's Allotment Register No. R/gn/1432/v (ILA) before the Settlement Officer in which it appears to have been stated by Jummaram that half the land belonged to his brother Moolchand, while the other half belonged to him. This is apparent from the order of the Settlement Officer dated 7th March, 1958; and the order further shows that the Settlement Officer categorically overruled the contention of the opposite party Jummaram that the settlement had been made on the basis of the number of members in the family of the parties. That being so, it is difficult to see how the provisions of the Administration of Evacuee Property Act, 1950 would apply to the admitted facts and circumstances of this case. Mr. Lodha on behalf of the opposite party, however, contends that in any case the dispute falls under the terms of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (Act No. 44 of 1954 ). He relies on sec. 15 of the Act in support of his contention that the provisions of sec. 145 Cr. P. C. were not attracted. Sec. 15, in my opinion, does not apply, because on the terms of the order of the Settlement Officer, the land is no longer in the compensation pool. Allotment has admittedly been made in lieu of their claims to the two brothers, the husband of the petitioner and the opposite party. There is, therefore, no reason why the Magistrate could not take action in respect of this property under sec. 145 of the Code of Criminal Procedure When an apprehension of a breach of the peace exists between the parties on account of their dispute as to possession of the property. Under sec. 145, the order of the Magistrate does not deprive any party of his title, because the person held to be in possession is subject to being evicted in due course of law. In other words, if the Chief Settlement Commissioner decides to set aside the order of the Settlement Officer, that order would prevail; but if in the mean time the Magistrate finds that the petitioner or her agent is entitled to possession, and the opposite party should not disturb her possession, the Magistrate would be competent to pass such an order with a view to prevent a breach of the peace. The decision of the Patna High Court in Sayed Salahuddin Ahmad vs. Janki Mahton (1) on which reliance has been placed for the opposite party and by the Additional District Magistrate in his order or reference stands on entirely different facts and is of no assistance on the relevant point. There the Custodian was himself a party and the other parties were holding possession in the eye of law merely on behalf of the Custodian to whom they were bound to surrender possession when so required. I, therefore, hold that the Magistrate is entitled to take action under sec. 145 of the Code of Criminal Procedure and the reference made to this Court against his orders is incompetent and must be discharged. . ;