UMRAO Vs. SHEONARAIN

JUDGEMENT

(1.) THIS is an application in revision filed by Umrao, (hereinafter referred to as party No. 1, along with his real brothers, Kashi Ram, Mohar Singh, and Sube Singh), against an order of the Sub-Divisional Magistrate, Khetri, dated 12-7-1974, in a proceeding under sec. 145, Cr. P. C. whereby the disputed land cover-ed by Khasra Nos, 2 measuring 9 Bighas 15 Biswas, 8 measuring 3 Bighas 4 Biswas, 19 measuring 4 Bighas 10 Biswas and 21 measuring 4 Bighas 5 Biswas and situated in Dbani Khatoti village Sator was attached under sec. 146, Criminal Procedure Code, 1973, after drawing a preliminary order containing the grounds on which the Sub-Divisional Magistrate was satisfied that a dispute likely to cause breach of peace exists between the party No. 1 and party No. 2 concerning the land in dispute.

(2.) THE relevant facts giving rise to this revision-petition may be briefly stated as follows: - THE disputed land consists of four Khasra numbers measuring 21 Bighas and 14 Biswas in toto. THE land is situated in Dhani Khatoti village Sator and was recorded in the revenue records in the Khatedari of Bagta deceased. After the death of Bagta on 17-2 1965, a mutation order was passed in respect of this land in favour of his four sons, namely, Umrao, Mohar Singh, Kashi Ram and Hazari on 18-3-1965. THE said mutation order was given effect to and the names of the above-named four sons of Bagta were entered in the column of Khatedars in Jamabandi records of Sam-vat 2025 to 2029. Apart from this, a pass book of these Khasra numbers was also issued by the Revenue authorities to Umrao and his three brothers on 10-7-1973. In this manner, part No. 1 Umrao and his three brothers have been in peaceful possession of the land in dispute and have been paying the rent thereof to the Revenue Department. Sheonarain and Surja Ram members of party No. 2, who are sons of Richhpal claimed to be the sons of Bagta and on the basis of their claim got a new pass book issued from the Revenue authorities in respect of the subject of dispute on 1-6-1974 without any notice to party No. 1 Umrao and his brothers. THE new pass book was obtained by Sheonarayan and Surja Ram during the pendency of a suit for division of holdings which they have instituted in the court of the Sub-Divisional Magistrate, Khetri, on the ground that they also were the sons of Bagta. After obtaining the new pass book, Sheonarain and Surja Ram alias Suraj Bhan made a report to the Station House Officer, Bhuhana, that there exists a dispute likely to cause breach of peace bet-ween them and party No. 1 in respect of the possession of the land in dispute and that necessary action should be taken. THE Station House Officer, Bhuhana, made a report to the Sub-Divl. Magistrate, Khetri, on 11-7-1974 about the existence of a dispute likely to cause breach of the peace in respect of the land. He further reported that the case was one of emergency and that the land in dispute should be attached so as to prevent the parties from disturbing the peace. THE Sub-Divisional Magistrate drew up a preliminary order on 12-10-1974, stating the grounds of his being satisfied that a dispute likely to cause breach of peace existed in respect of the land and requiring the parties concerned in the dispute to appear before him and to file written statements of their respective claims as respects the actual possession of the land in dispute. After passing the preliminary order, the learned Magistrate passed an order for interim attachment of the land under sec. 146, Cr. P. C. because in his opinion it was a case of emergency. By the same order, he appointed the Naib-Tehsildar, Khetri, to be the receiver of the land after its attachment. Aggrieved by this order, Umrao has come up in revision to this Court.

(3.) LOOKED from another aspect also, the legal position appears to be the same. If after attaching the subject of dispute in a case of emergency under sub-sec. (1) of sec. 146, Cr. P. C. the Magistrate makes a proper inquiry into the question of possessi-on and decides that one of the parties was or should, under the proviso to sub sec. (4) of sec. 145, Cr. P. C. be treated as being in possession of the subject of dispute, he shall declare the possession of such party and when he proceeds under the proviso to sub-sec. (4), may restore to possession the party forcibly and wrongfully dispossessed. But after once having attached the subject of dispute in a case of emergency, he cannot restore to possession the party in whose favour he passes the final order under sub-sec. (6a) of sec. 145, Cr. P. C. , because the attachment shall continue until such time as a competent court has decided the rights of the parties to the subject of dispute. It will not be out of place to mention that the Magistrate is not a competent court because he is required under the law to decide the question of possession without reference to the merits of the claims of any of the parties to a right to possess the subject of dispute. Hence after attachment of the subject of dispute in a case of emergency under sub-sec. (1) of sec. 146, Cr. P. C. a proper inquiry into the question of possession as envisaged by sub-sec. (4) of sec. 145, Cr. P. C. is of no use, because even after passing a final order under sob-sec. 6a of sec. 145, Cr. P. C. an attachment has to be continued until determination by a competent court of the rights of the parties to the subjects of dispute with regard to the person entitled to the possession thereof. In this view of the matter, the impugned order passed by the Sub Divisional Magistrate, Khetri, attaching the land in dispute on the ground of emergency under sec. 146, Cr. P. C. is a final order.