T.N.R. Tirumalpad, J.C.
1. The petitioners herein obtained a final coerce in the Court of the Additional Munsiff, Mampur, in T.S. No. 28 of 1954 on 7-6-1956. Thereafter they wok out execution in Execution Case No. 81 of 1956 and outage delivery of possession of the land under patta No. 81 of 1956 and of Konthoujam village on 11-11-1956. immediately trouoie Degan for them. The Munsitt who had granted avenger of possession to them, Tier cancel ed the said deliver roofer on the application of the respondents. The petitioners took the matter in appeal to the District Judge, but the appeal was dismissed. They came in second Appeal to the Court of the Judicial Commissioner and in the secona Appeal, the cancellation of the delivery order by the Muncie was set aside and delivery of possession given to me petitioners on 11-10-1958 was confirmed on 2-6-1950
2. But the respondents were not prepared to amoe by the orders of Courts. They again sought to interfere with the possession of the petitioners. So the petitioners applied in Criminal Case N. F. I. R. no. 54 of 1960 on 30-6-1960 to the Magistrate Shri K, L. Singh to take action against the respondents Under Section 107 Cr.PC for any Magistrate's Court the confirmation of the possession of the petitioners by the court of the Judicial commissioner on Z-6-196U ought to have been sutticient to hold that the petitioners were in possession and that if the respondents Interfered with the said possession, they should be prevented from doing so by taking proceedings against them Under Section 107 Cr.PC but the ways of this Magistrate appeared to be quite different. He seemed to attach more value to the Police report which he called for, in which the Police stated that both parties should be proceeded against Under Section 107 Cr.PC
Accordingly, he passed an' order on 12-8-1960 directing both parties to furnish bond for Rs. 500/- to keep the peace. The petitioners filed a petition protesting against the said order on 19-8-60 and pointing out that their possession had been confirmed by the Judicial commissioner on 2-6-1960 and that they should not therefore be directed to give security and that the respondents ought to db directed to do so. But this petition was not even considered by the Magistrate. Instead, on 13-9-1960, he passed an order that he was satisfied that mere was Kennood of Breach of the peace between the parties and drew up proceedings Under Section 145 Cr.PC and attached me lamf and directed the parties to put in written statements of their respective claims.
3. The petitioners protested against this and pomted out to that Magistrate that their possession was beyono dispute In view of the order of the Judicial commissioner and that It was the respondents who should be proceeded against Under Section 107 Cr, P. C. But these arguments fell on deaf ears and the Magistrate passed anotner order on 3-1U-1960 that it was desirable mat proceeaings be drawn up Under Section 145 Cr.PC and he directed the parties to put in their written statements. One fails to understand what this Magistrate had to decide Under Section 145 Cr. P. C, as the possession of the petitioners had been confirmed by the court of the Judicial commissioner as late as 2-6-1960. Anyway, the petitioners riled their written statement again pointing out that their possession has been confirmed on 2-6-1960 by the often of the Judicial commissioner after their title had one established In the Civil court In T. S. No. 28 of against the respondents.
The respondents in their written statement only stated that fraud was practised on them by the petitioners in obtaining the decree in T. S. No. 28 of 1954 and that they had filed a suit in the Munsiff's Court to set asioe ' the said decree. They had nothing to say about the delivery of possession to the petitioners in the Munsitt's court on 11-10-1958 and the confirmation of the said possession by the Court of the Judicial commissioner on 2-6-1960. This was very material, because it was not the case 01 the respondents that they again got possession after li-iu-1958 or 2-6-1960. Thus, as the petitioners' possession nay been confirmed on 2-b-1960, they certainly continued in possession even on the day when the preliminary order was passed Under Section 145 Cr.PC
4. For any subordinate court, tense written statements themselves should nave been sufficient to nod tank the petitioners were clearly in possession of the property. But not for this Magistrate. It is evident that he on not apply his mind to the case of the parties and tie pass an order Under Section 146 (1) Cr.PC stating that no was unable to decide as to which of the parties was in possession of the land and he therefore referred the matter to the Munsift's Court for the purpose of deciding we question whether any or which of the parties was in possession of the land on the date of the preliminary order.
5. A Magistrate acting Under Section 146 (1) mas to apply his mind to the facts of the case and peruse the Written statements, affidavits, or other documents filed before him by the parties. It is only if he still finos himself unable to decide as to which party is in possession that he ran refer the matter to a Civil Court. Section 146 (1) Cr.PC is not intended for the Magistrate to smm his duty and throw the burden on a Civil Court to decide the matter, without applying his own mind to the case. I have already stated that it only the Magistrate had careo to read and understand the respective cases of the parries as disclosed from their written statements and documents, he would have had no difficulty in deciding that We petitioners were clearly in possession and that their possession had been confirmed by the Highest Court of the Territory and that the respondents cannot even talk of their possession of the land, in the face of the confirmation of possession of the petitioners by the Court of the Judicial commissioner, such a meaningless reference to a Civil Court which amounts to a failure on the part 01 the Magistrate to perform his duty Under Section 145 W Cr.PC has to be deprecated.
6. Anyway, the matter was referred to the court of the Mastiff for a decision on the question of possession. It came before the same Monist who had delivered the property to the petitioners on imo-1958 and which delivery of possession was confirmed by this Court on 2-6-1960. The Munsiff dealt with this matter and n took oral evidence of the parties regarding possession. tend that the evidence let in was to show that the respondents had been in undisturbed possession of the Lana for 29 to 30 years. I cannot understand how any such evidence was allowed to be let in at all by this Munsm. Such evidence was meaningless when this Munsiff himself had delivered possession of the property to the petitioners on 11-10-1958. He had to start with the tact tnat tm petitioners were in possession on 11-IU-193B. me only question theorem the Munsiff was whether after such delivery of possession on 11-10-1958, the petitioners had been deprived of such possession and whether the respondents had got into possession. The respondents and no such case that they again got into possession after their eviction on 11-10-1958. Even such a question cannot do gone into, as the possession of the petitioners had Deen confirmed before the Munsitf on 2-6-19 Thus, the only question before the Munsiff was whether between 2-6-1960 and 13-9-1960, when the preliminary order Under Section 145 (1) was passed by the Magistrate, the petitioners tied ceased to have the possession and whether the respondents had legally got into possession. The respondents had no such case. in fact, that question also cannot arise as the petitioners had filed N. J-. I. Rule 54/bu on 30-6-1960 before the Magistrate to take steps Under Section 107 Cr.PC against the respondents who were attempting to interfere with their possession.
7. What I actually find is that the Munsitf did not pay any heed to the delivery made by him on imimbss or to the confirmation of possession by this Court on 2-6-1960. He stated that more man 2 years had passel after delivery was given to the petitioners by him on n-10-1958 and the petitioners were not able to snow mat their alleged possession of the disputed land was interfered with by the respondents. On such a finding, the Munsift ought to have found in favour of the petitioners. But curiously enough, he held that it was very difficult to Believe that the petitioners were in possession on union, and he held that the respondents were in possession, ah that I can say is that the order of the Munsitt does not appear to me to be a bona fide one, particularly, as we respondents had not shown before the Munsiff in what manner they got into possession after the confirmation or the possession of the petitioners by this Court on 2-6-1960.
8. On this order of the Munsitf, the Magistrate passed an order on 23-8-1961 holding that the respondents were in possession of the disputed land on the date of me preliminary order, namely, 13-9-1960 and he held that they were entitled to retain such possession until evicted mere from in due course of law. Evidently, the Magistrate for got that the land was under attachment. So, fie did not direct that the land should be handed over to the respondents, it is under these circumstances that the petitioners have come before this Court for quasning the proceeding taken by the Magistrate Under Section 145 Cr.PC
9. This case discloses a sorry instance where a party whose title and possession of property have open declared by Civil Courts, found himself helpless to get the assistance of Courts when he sought their aid to protect Himself against wanton interference with his rights Dy persons against whom his title and possession have been declared by the Courts. This is an instance where Courts instead of being the guardians of such nines of property have lent their support to aggressors of such rights and thereby shown themselves to be unfit to on entrusted with such duties as Courts. It would look as n the petitioners, if they had not approached the courts for protection would have been able to safeguard their nights tatter. It is indeed a pity that things should come to such a pass in our Courts.
10. There can be no doubt that the proceedings Under Section 145 Cr.PC taken by this Magistrate m this case were totally unwarranted. No doubt there was a threat of breach of the peace and that threat arose regarding the land in question. But when the possession or the land was beyond dispute and had been declared Dy this Court to be with the petitioners as late as 2-6-1960 and when the petitioners sought the aid of the gun against the respondents who attempted to interfere with that possession, the only course for the Court was to prevent such Interference by taking proceedings against we respondents Under Section 107 Cr.PC If the respondents had come and shown to the Court that after they had duly obtained possession by further orders Courts, one can understand the Court taking proceedings Under Section 145 Cr.PC But the respondents did not say so at all and their contention was only that they not tiled a suit to set aside the decree on the strength of which the petitioners got delivery of possession. In such a case, the only action which the court could tame was to protect the possession of the petitioners and to prevent the respondents interfering with such possession until they are able to, get a decree in their favour setting aside the decree and the delivery of possession in favour of to petitioners and to get delivery for themselves, it is clear therefore that the Magistrate in starting proceedings Under Section 145 Cr.PC has committed a very grievous error.
11. It is time that tams Magistrate understands that Section 145 Cr.PC should not be mis-used in tins fashion to interfere with the established right and possession was party to the land in question. As pointed out in the decision 'Kameshwar Singh v. Ramdahin Tewari AIR 1954 Pat 124, the jurisdiction of a Magistrate to start proceeding Under Section 107 Cr.PC in a dispute reiaiinc to land is not ousted and if the claim of one of We parties to the proceeding is a mere pretence and the dispute raised by him is not bona fide, a proceeding Under Section 107 can be started against that party. Again, as pointed out in the decision Sutra Narain axe v. me State : AIR1950Pat502 , action Under Section Cr. f. u. is intended to be taken against persons who in spite of orders of Civil or Criminal Courts finding possession against them persist in their unlawful conduct of disturbing the possession and taking the law into their own hands.
12. In the case before us, there was no bona fide dispute raised by the respondents and they nave Deen clearly ousted from possession of the land after the Petitioners had obtained a final decree for possession and their claim was therefore nothing but a pretence. Hence, the only section under which the Magistrate could take proceedings in the present case was Under Section 107 w. P. C. and that too against the respondents. me petitioners should not have been asked by the Magistrate of give any security as their possession of the land was beyond dispute, it is clear that tire respondents were; attempting to disturb the possession of the petitioners anger such possession was confirmed by the court of the Judicial commissioner as late as 2-6-1960.
13. The proceedings before the Magistrate Under Section 145 Cr.PC and all orders passed thereon are, therefore, set aside, as totally unwarranted. As the Magistrate has kept the land under attachment, he is directed to deliver possession of the land to the petitioners. If, after the order passed by him on 23-8-1961, the respondents have entered upon the land, the Magistrate is directed to oust them from the land and to hand over possession to the petitioners. If the respondents hereafter threaten to interfere with such possession of the petitioners, the. Magistrate is directed to take proceedings against respondents Under Section 107 Cr.PC to bind them over to keep the peace.