Rajvi Roop Singh, J.C.
1. This is a Criminal Reference made by the learned Sessions Judge, Tripura in Criminal Motion No. 1 of 1964 with a recommendation for setting aside the order, dated 12-12-1963, passed by the Magistrate First Class, Sabroom in Misc. Case No. 14 of 1963.
2. The facts out of which this reference arises are briefly as follows:
On 11-7-1963 the first party opposite party Usai Mag filed an application before the Court of the S.D.M., Sabroom praying for proceedings under Section 107/144, Cr. P. C. against the petitioners, alleging inter alia that himself and his relations were in possession for last 4/5 years of 6/7 kanis of lands forming the northern portion of 1 drone 4 kanis of land in Mouza Sabroom known as Kathalchari bounded on north, south, east and west by the-zigzags of tillas, that they had got settlement of the land from the Government as landless jhumia tenant : and had reclaimed the same by hard labour as well as considerable expenditure of money, that the second party petitioners were threatening to reap away the paddy grown by the first party and that there was a serious apprehension of breach of the peace.
The learned Magistrate passed an order for police enquiry and after receipt of the police report made an order under Section 144, Cr. P. C., on 16-7-1963, restraining the second party members from entering : into the land in question. By the said order the learned Magistrate directed the second party to show cause against the order by 24-7-1963. On 24-7-1963 the second party filed an objection petition showing cause against the order under Section 144, Cr. P. C. stating inter alia that they had no claim to any land in Mouza Sabroom known as Kathalchari but asserting that they were in possession of lands in Mouza Ludhia bounded on the north by tilla and Ludhua garden, on the south and east by zigzags of tillas and on the west by zigzags of tilla and Balak Chandra Dam on the basis of allotment as refugees, that they had been in possession of this land for a long time and had grown Aush paddy crop and Aman seedlings thereon for the year in question, that the first party was never in possession of the said land and that there was no occasion or reason for any apprehension of breach of the peace in respect of the said land in possession of the second party. Thereafter the learned Magistrate passed an order under Section 145, Cr. P. C. stating that he was satisfied from the report; submitted by the O. C., Sabroom P.S. that a dispute likely to cause a breach of the peace existed between the first party and the second party concerning the possession of the land in Mouza Sabroom known as Kathalchari, measuring 6/7 kanis being the northern portion of 1 drone 4 kanis of land bounded on the north, south, east and west by zigzags of tillas and requiring the two parties to put in written statements, documents, affidavits, etc. in respect of their respective claim. By the said order the learned Magistrate also attached the said land.
3. Both the first party and the second party filed written statements in pursuance of the order. The first party also filed affidavits and three documents purporting to be certified copy of enquiry report of Circle Officer, Rehabilitation Officer and Tribal welfare Amin. In the written statement Sled by the first party they reiterated their claim to possession as mentioned in their application under Section 144, Cr. P. C., dated, 11-7-1963, but categorically stated that there was no apprehension of any breach of the peace in respect of the proceeding land at that time. The second party in their written statement reiterated that they had no claim to any land in Mouza Sabroom known as Kathalchari and that the first party had no possession in the land of Mouza Ludhua as mentioned in the show cause notice.
4. The learned Magistrate heard both the parties, considered the affidavits and documents filed in the case and in his judgment and order dated 12-12-1963 observed inter alia as follows:
From the nature of argument it appears that tooth parties claim possession over a plot of land, the boundary of which is identical. Now the question is where the disputed land is situated - at mouza Sabroom or at Ludhua. It appears from the report of Amin filed by the first party that the land allotted to the first party is situated at Mouza Ludhua. The second party relies on the report of Amin in respect of allotment made in favour of second party earlier but not in respect of location of first party's allotted Sand at Mouza Ludhua. Since the second party accepts the reports of Amin, Circle Officer, Rehabilitation Officer in respect of allotment said to have been made earlier in favour of the second party the location of the disputed land at Mouza Ludhua as stated by Amin cannot be disbelieved.
Instead, however, of arriving at any decision as to which party was in possession of the disputed land the learned Magistrate passed an order restraining both the parties from entering into the disputed land and winded up his judgment by making the observation to the following effect:
It is clear that the disputed land is still khash land, as neither of the parties had been able to show this land has been settled with them. I do hereby restrain both the parties from entering the disputed 'land, so long as it remains khash as it is a case of mistaken identity of the land. If any of the parties takes settlement of this land from the competent authority, that party will have right to enter the land. In the meantime in the interest of food production, it is necessary t6 arrange cultivation of the attached land. Receiver is asked to hold auction bid of the land for barga cultivation for the coming crop and settle the land with highest bidder on deposit of the bid money. Of course, both the parties will have right to contest in the bid and as a highest bidder one of them can enter the land for barga cultivation.
5. Being dissatisfied with this order of learned Magistrate Ramani Mohan Das and others, the second party petitioners preferred a Criminal Revision to the Court of learned Sessions Judge. The learned Sessions Judge has made this reference for setting aside the order of the learned Magistrate,
6. At the time of arguments the learned Counsel for Usai Mag frankly conceded that in view of the illegality committed by the learned Magistrate he does not oppose the reference made by the learned Sessions Judge. On the perusal of the record of the case I feel that he has rightly conceded in view of the facts of the case. From the perusal of the record, it is obvious that the learned Magistrate without arriving at any decision as to which party was in possession of the disputed land passed an order restraining both the parties from entering into the disputed land. This shows that the learned Magistrate Las misconceived the entire scope of proceedings under Section 145, Cr. P. C. If he had cared to look into the provisions of Section 145, Cr. P. C. he would have known that what he was to decide was the question of actual possession without referring to the parties' right to such possession, that is. irrespective of the question whether such possession is backed by evidence and title. The order of the learned Magistrate is bad in law as Section 145, Cr. P. C. does not contemplate the passing of such order. I have therefore no other alternative but to set aside his order.
7. I, therefore, accept the reference and set aside he order of the learned Magistrate and remand the case back for deciding the question under Section 145, Cr. P. C. as to which party was in possession.