RAM LAL Vs. MANGU

JUDGEMENT

(1.) (In Chambers) This is a reference by the Sessions Judge Jhunjhunu in a proceeding under Section 145 of the Code of Criminal Procedure, and arises under the following circumstances. The question raised by the reference is whether after the trial Magistrate has dropped the proceedings under Subsection (5) of Section 145, he has the authority or jurisdiction to order that the property which was the subject-matter of the proceedings before the Magistrate be returned to a particular party.

(2.) It is necessary to state a few facts in order to appreciate the point in controversy. The dispute relates to 30 Bighas of agricultural land attached to a well called Chainsing-wali-Kothi in the village Sogra Guwar. The land was entered in the revenue papers as half and half in the names of the petitioner Ramlal and the opposite party Mangu as tenants. The allegations made by the Station House Officer Khetri at whose instance this proceeding was started before the Sub-Divisional Magistrate Khetri were that the land was divided into seven plots out of which the opposite party Mangu was in cultivatory possession of 23 bighas and the petitioner was in possession of the remaining seven bighas and that the latter wanted to take possession of eight bighas which were being cultivated by Mangu and consequently there was an apprehension of a breach of the peace. The Magistrate took cognizance of the case and passed a preliminary order on the 20th October, 1956 and attached the disputed land pending the decision of the proceeding under Section 145 Cr. P. C. The learned Magistrate eventually came to the finding that the petitioner Ramlal was in possession of seven bighas only, and the remaining twentythree bighas were in the actual possession of the opposite party Mangti. Consequently he declared that Mangu was entitled to possession of the 23 bighas of this land which were in his possession and he issued an order restraining Ramlal from interfering with that possession until Mangu was evicted Irom possession in due course of law. Ramlal went in revision against this order and the learned Sessions Judge made a reference to this Court recommending that each party be put in possession of 15 bighas of land. It appears that this reference was not accepted and the case was sent back to the Magistrate with a direction that he should give further opportunity to the parties to file affidavits regarding their actual possession with respect to the various portions of the land in dispute and that he may also, if necessary, summon and examine any of the persons whose affidavits have been filed and after considering the entire material so brought on the record he should decide the case afresh. When the case went back to the Court of the Sub-Divisional Magistrate and proceedings were started in accordance with the directions of this Court by the Magistrate, it transpired on 6-2-1959, that an application was moved on behalf of the petitioner Ramlal that there was no longer an apprehension of a breach of the peace, and, therefore, the proceedings be dropped, and the attachment removed. Apparently this application was not contested on behalf of the opposite party Mangu with the result that the proceedings were ordered to be dropped and the attachment was removed. On 10-2-1959 an application was moved on behalf of Mangu that as the proceedings had been dropped, the various portions of the land, possession whereof had been taken by the receiver in pursuance of the order of the Court attaching the same be ordered to be returned to the parties and the status quo ante be restored. The Magistrate passed an order accordingly and the effect of this order is that Mangu has been put back in possession of the land whereof he was in possession before the present dispute arose. It is this order which has given rise to the present reference. The petitioner preferred a revision against it to the learned Sessions Judge who has made this reference. The view of the learned Judge is that the order of the Magistrate was illegal, as he had no jurisdiction to pass it after, the proceedings had been dropped by him. It is also observed by the learned Sessions Judge that the Sub-Divisional Magistrate should not have passed the order which he did without hearing the petitioner. That objection is, however, of no importance now as both parties were fully heard by the learned Sessions Judge. The learned Judge has placed his reliance on Kishan Sahai v. State, AIR 1952 Raj 101 in support of his reference.

(3.) The question which thus emerges for determination is whether the Magistrate had jurisdiction to pass the order which he did after the proceedings had been dropped by him as stated above.