RADHA RAMAN Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision by Babu Radha Hainan Das and Bindeshri Prasad against the order of the learned District Magistrate of Gorakhpur. On 4th February last Babu Balmakund Lal died. On 25 May 1935, a report was made to the learned District Magistrate by the police that Bindeshri Prasad was making formidable preparations to establish forcible possession over the property. On receipt of this report, the learned District Magistrate passed an order under Section 145, Criminal P.C., and attached the property under Section 145(4). When the case came up for hearing the learned Magistrate was informed that mutation was proceeding in the revenue Court in respect of the property in dispute. The mutation proceedings which had been started on the application of the trustees who were appointed under Balmakund Das's will, dated 1 March 1931, were contested by Bindeshri Prasad, brother of the deceased. The revenue Court instead of deciding which party was in possession, went into the question of title and held that the trustees had a better claim. A copy of this order was produced before the learned District Magistrate who abruptly dropped the proceedings under Section 145 and released the property from attachment; but directed that possession be delivered to the trustees in accordance with the terms of the revenue Court.

(2.) It does not appear under which section this order was passed. It is under Section 145(6) that a Magistrate, after deciding that one of the parties was or should under the first proviso to Sub-section (1) be treated as being in such possession of the property in dispute, shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance to such possession until such eviction and when he proceeds under the first proviso to Sub-section (4) may restore to possession the party forcibly and wrongfully dispossessed. The order against which this revision has been filed was not evidently made under this clause. The learned Magistrate has observed: I am not able to satisfy myself in the words of Section 146(1) as to which party was in possession subject to the dispute, the property has already been attached not under Section 146(1) but under Section 145 (4), but meanwhile a competent Court has decided as to the person entitled to the possession of the property and I therefore direct that the property be released from attachment and that possession be delivered to the trustees in accordance with the terms of that order.

(3.) It appears that the learned Magistrate has passed the order under Section 146. But in order to pass an order under Section 146, it was necessary for the Magistrate to have come to some finding of his own on the evidence of the parties that he was unable to satisfy himself as to which of the parties was in possession of the subject of dispute. Section 146 presupposes an inquiry by the Magistrate on the evidence recorded, and the object of Section 146 is to give the Magistrate jurisdiction to attach the property, if upon the evidence so recorded, he is unable to come to a finding as to who was in possession on the date on which the order under Section 145 was drawn up, and where there is no evidence of any kind on record, the order attaching property is without jurisdiction. A Magistrate cannot say that he is unable to satisfy himself if he has never made the slightest efforts to do so. Consequently the order in question cannot be supported under the provisions of Section 146 as the learned Magistrate never made any effort to satisfy himself. It was urged on behalf of the opposite party that as an order has been passed by the revenue Court under Section 40, Revenue Act, entitling the trustees to get possession, the learned District Magistrate was justified in passing an order directing possession to be-delivered to the trustees. There are only two sections under which the criminal Courts can deal with possession over the property in dispute, namely, Section 145 and Section 146. Section 146 is only a continuation of the proceeding under Section 145, Criminal P.C. As already stated the order passed is not one under Section 145, Criminal P.C. Under Section 146 all that the learned District Magistrate could have done was to have attached the property until a competent Court had determined the rights of the parties thereof or the persons entitled thereto. No attachment was made by the learned Magistrate under Section 146 and consequently the order is not covered by Section 146. Even if any attachment had been made under Section 146, it would automatically come to an end with the decision of the competent Court. If the trustees were entitled to possession under the order of the revenue Court, they should have sought possession through the revenue Court and it was for the revenue Court to put them in possession if its order was enforceable. Here what has been done is that the trustees have been directed to be put in possession by the learned Magistrate and not by the revenue Court. The learned District Magistrate had no authority to pass such an order;. It is therefore ordered that the order be set aside. As the proceedings under Section 145 have not been properly disposed of, the case be sent back to the learned District Magistrate for disposing it of in accordance with law. If the learned District Magistrate does not think it necessary to proceed with the case under Section 145, it. would be open to him to drop it.