ABUGUNDA Vs. DEVGUNDA

JUDGEMENT

(1.) THIS is a revision petition against the order of the Munsiff Court, Bhodan, dated 19. 8. 1952 by which the land in dispute has been taken in possession of the Court and the parties directed to resort to a civil Court. Against this order the revision petition has been filed and I have heard the arguments of the learned advocates of the parties, Shri Amanullah and Shri K. B. Swamy Gupta.

(2.) THE learned Counsel for the revision-petitioners argued that when the Magistrate had come to the conclusion that there was no likelihood of breach of peace, the only thing he could do was that he should have returned the possession of the land to the party from whom it was taken. No one can dispute this proposition. The learned Magistrate was himself aware of it as it appears from the statement in, the judgment that unfortunately the police did not prepare a panchnama at the time of taking possession of the land in the Court's custody. In the circumstances he proceeded to consider the evidence in the case and came to the conclusion that at the time of the order or two months prior to it, the possession of neither-party is established. Evidently, this conclusion after the finding that there was no likelihood of breach of peace cannot be supported; for having cancelled the preliminary order under Sub-section (1) of Section 148, H. Cr. P. C. he could not go on to determine the possession at the date of the order or two months prior to it. But it should be noted that this conclusion was only a means to an end and was not an end in itself. It was for the purpose of determining from whose possession the land was attached. And Clause 5 of Section 148 enacts that when there was no likelihood of breach of peace, the Magistrate should from the evidence adduced in the case determine the possession of the party. What the Magistrate has done, is, in my opinion, nothing more than that and as he could not come to a conclusion on the evidence adduced, he directed that the land be kept in the possession of the Court, In the circumstances, I do not see any reason to interfere. It has been laid down in-Nazser-e-Osmania 100 (A) and-5 Nazaer-e-Osmania 240 (FB) (B) that when there is no likelihood of breach of peace, the jurisdiction of the Magistrate comes to an end and he cannot proceed to take evidence to determine the possession of the parties. In the circumstances, as already stated, the only thing the Magistrate could do was to determine from the evidence adduced the possession at the time of the order, and failing to reach a conclusion, continue the attachment. This view is borne out by-State v. Sheoratan Singh AIR 1951 Nag 201 (C) where it has been held that:

(3.) ORDER accordingly.