MEHARBAN SINGH Vs. BHOLA SINGH

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Farrukhabad, recommending that an order passed by a Magistrate of First Class, in that District directing that one Bhola Singh under the provisions of Section 145, Criminal P.C., be put in possession of the plot in question, be set aside.

(2.) Bhola Singh made an application under Section 145, Criminal P.C., on 15th March 1933, in which he alleged that Munshi Singh, Gurdatta Singh and Maharban Singh had forcibly dispossessed him of a plot of land by erecting a building over it and by cutting some trees, and that therefore there was an apprehension of the breach of the peace. It may be stated here that in his application Bhola Singh, alleged that he had been dispossessed seven or eight days before the date of his application. The Sub-Divisional Magistrate asked the police to make a report and it was not till 11 May 1933, that he issued a notice to the opposite party. The learned Magistrate who tried the case came to the conclusion that Bhola Singh's possession continued undisturbed till lately when he was forcibly ousted from the plot, He did not however specify the exact date on which, accordingly to him, Bhola Singh had been dispossessed. He further found that it was made out that there was an apprehension of the breach of the peace, and therefore he made an order that Bhola Singh should be put in possession and the opposite party be prohibited from disturbing his possession.

(3.) Against the order passed by the learned Magistrate, revision was preferred to the learned Sessions Judge. Three points were urged before him. The first related to the alleged illegality of the notice issued by the learned Magistrate. But in view of a decision of this Court reported in Kapoor Chand V/s. Suraj Prasad 1933 All 264, this point was abandoned. The second point urged was that as Bhola Singh, according to the evidence in the case, had been dispossessed more than two months next before the date of the notice (11 May), the order passed by the Magistrate was incompetent, having regard to the provisions of the proviso 2, Sub-clause 4, Section 145, Criminal P.C. This is the only point which I have to consider in this reference. Section 145, Clause 1, enacts that whenever a Magistrate is satisfied from a police-report that a dispute likely to cause a breach of the peace existed, then he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader and to put in writing statements of their respective claims as regards the facts of actual possession of the subject of dispute. Clause 4 of this section runs as follows: The Magistrate shall then, without reference to the merits or the claims of any or such parties to a right to possess the subject of dispute, peruse the statement so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether and which of the parties was at the, date of the order before mentioned in such possession of the said subject.