Maida and others vs The State of Punjab and others

Bedi, J.—The facts which have given rise to this revision are as under:

One Mst. Darkan died without a male issue leaving 10 bighas and 4 biswas of land. On her death Maida, Bahadur, Parbhat and Amar Singh claimed to be in possession of that land. Ganga Datt, Jhabal etc. claimed that they were in possession of the property in dispute and had been so, long before the death of Mst. Darkan, as lessees. On the report of the police dated 12th October 1960 it came to the notice of the Magistrate 1st Class (Executive), Narnaul that there was an imminent danger of breach of the peace over the possession of the land in dispute. The Magistrate passed a preliminary order on 8th November 1960, calling upon the parties to substantiate their claim in respect of the fact of actual possession of the land in dispute and also to show if there was a likelihood of the breach of the peace. The parties appeared before the Magistrate but he was unable to come to a definite conclusion on the point of possession and referred this case to the Civil Court u/s 146 of the Code of Criminal Procedure vide his order dated the 7th December, 1960. The Sub Judge (Civil Court) vide its order dated 31st August, 1961, held that Jhabal''s party was in possession of the land in dispute. The Magistrate vide his order dated 8th November 1960 directed that the possession of the property will remain with Jhabal etc- as decided by the Civil Court. He, however, said nothing in his order whether apprehension of breach of the peace existed or not and filed the proceedings. Maida''s party went up in revision in the Court of the District Magistrate, Mahendargarh, alleging that the order of the Magistrate passed on 8th November 1960, was wrong and that he should have given a definite finding about the continued existence or otherwise of a likelihood of the breach of peace. After hearing the parties the learned District Magistrate recommended that permission to revise the order of the Magistrate 1st Class dated the 8th November, 1960, mentioned above be accorded.

I have heard the parties in this case. By virtue of Section 145 of the Criminal Procedure Code, the Magistrate has to decide two things (1) whether the dispute likely to cause a breach of the peace existed concerning any land or water etc. and (2) as to who was in actual possession of the property at the time when he received the information. In order to decide as to who was in actual possession, the learned Magistrate after hearing the parties found himself in difficult position to decide the point and referred the matter to the civil Court for decision as required u/s 146 of the Code of Criminal Procedure, It is not denied that the order of the Sub Judge (Civil Court) passed u/s 146 was final and the Magistrate could not interfere in it but I am of the opinion that it was incumbent on the Magistrate to give a finding on the point whether there existed a danger of breach of the peace over possession of the land. Section 145 is enacted principally to prevent breach of the peace and the fact that there is a danger of breach of peace or not must be put in the forefront of proceedings before the Magistrate, He has in fact no jurisdiction in matter of dispute relating to the immovable property, which primarily pertains to a Civil Court unless he is fully satisfied that there is a danger of a breach of the peace. Emperor v. Hira Lal 34 Cri. L. J. 449, and Ganga Parshad v. Narain 15 All. 394 (385). The basil of the proceedings is the likelihood of a breach of the peace.

In the circumstances it was incumbent on the Magistrate to record the evidence of both the parties and find out if there was any apprehension of breach of the peace. The Magistrate unforunately has failed to do that. The counsel for the Respondent on the other hand submitted that it was only before passing the preliminary order dated 8th November, 1960 that it was necessary for the Magistrate 1st Class to satisfy himself about the likelihood or not of the breach of the peace, and after this, it was not necessary for him to bother about this point, as the Magistrate 1st Class, had already obtained the Civil Court''s finding. He also averred that the Magistrate was only to declare in its final order as to which party was in possession of the disputed property and therefore he was right in not going any further than this.

I feel that for the reasons given above and also for the reasons given in the recommendation made by the District Magistrate the recommendation is to be accepted. The case is remanded back to the Court with the direction that it should record the evidence of the parties if they lead any and then decide whether the dispute likely to cause breach of the peace between the parties did exist over the land in question.