AMAR NATH Vs. JANKI NATH

JUDGEMENT

(1.) This criminal reference has been made by the learned Additional Sessions Judge, Srinagar, recommending that the order of the learned Tehsildar, Executive Magistrate, Ganderbal dated 1.9.1986 initiating the proceedings under section 145 of the Cr. P.C. and attaching the disputed land may be quashed for the reason that the applicants before the Enquiring Magistrate gave themselves contended that the parties were jointly in possession of the said land. I have heard the learned counsel for the parties and have also examined the record. I need not narrate the facts of the case which are found in the order of reference.

(2.) The perusal of the record, however. Reveals the following facts which are to be noted;

(3.) There is conflict of opinion between several High Courts as to whether proceedings under section 145 Cr. P.C. can be allowed to continue if the parties are jointly in possession of the disputed property, or otherwise if one party claims joint possession of such property and the other its exclusive possession. In my opinion, the determination of this question is not free from difficulty. The object of proceedings under section 145 of the Code is to prevent breach of the peace in the context of a dispute about the possession of land. It is the dispute between the parties, each of them claiming exclusive possession that gives rise to an apprehension of a breach of the peace. If the court finds that they were in joint possession and in terms of section 145 of the Code upholds their right to be in joint possession, will such an order secure preservation of the peace when the two parties are opposed to each other? Even if action under section 107 Cr. P.C., is taken against both the parties, would it solve the risk of being charged with a breach of the Interim or final order to enter on the land? If so, who is to be incharge of the land?