KISSENLAL AGARWALLA Vs. NAGARMAL AGARWALLA AND ORS.

JUDGEMENT

(1.) THIS is a reference under Section 438, Criminal P, C. by the Sessions Judge, U, A. D. for setting aside the order passed by the First Class Magistrate Jorhat on 15.12.51 directing the restoration of possession to the two contending parties of two parcels of land as defined in the order. The main ground for reference is that there was no express order that the Magistrate drawing up the proceeding was satisfied at any stage that a dispute likely to cause a breach of the peace existed between the parties or that the Magistrate applied his mind to this aspect of the case. In the words of the learned Sessions Judge,

(2.) IN my opinion, the order of the learned Magistrate dated 15 -12 -51 is bad on two grounds and has to be set aside. The first ground is that there was no compliance with the requirements under Section 145(1), Criminal P. C. and the second nor with the provision of Section 145(6) Cr. P. C. The Magistrate had to decide at one stage or other that there was a dispute likely to cause a breach of the peace existing between the parties and he had to decide which of the parties should be treated as being in possession of the subject -matter of dispute and he should issue an order declaring such party to be entitled to possession thereof until evicted from there in due course of law. The Magistrate had to decide the fact of actual possession on evidence and he had no business nor jurisdiction to act as an arbitrator as he did in this matter without any reference to the evidence on record. The Magistrate is not for establishing peace between the parties but had only to decide as to the fact of possession in case there is a dispute that might lead to the disturbance of the peace. Though the reference is confined only to one point, namely, the first, we are not bound to decide it on that point alone, our jurisdiction being sufficiently wide under Section 439 Cr. P. C. and we can interfere even if the final order be wrong.

(3.) THE requirement of the law is that