Ram Labhaya, J.
1. This is a reference from the Ses J. U. A. D. It arose out of proceedings under Section 145 Cr. P.C. which culminated in an order under Section 146 Cr P.C. by Which propery in dispute was attached & it was directed that the attachment shall continue till one of the contending parties was declared entitled to possession of the property by a competent Civil Ct. The Second Party feeling Aggrieved by the order preferred an appln for revn in the Ct of the Ses J. The learned Ses J. came to the conclusion that the order of attachment passed by the learned Mag requires to be set aside & he has referred the case to this Ct under Section 438 Cr. P.C.
2. The land in dispute is covered by periodic patta No. 17 of village Bubhurial. It measures 7 B. 1 K 16 L. The patta formerly stood in the name of Gathalu Ahom. He transferred it by a registred deed of sale dated 9-3-1949 to Madan Chandra Barua the 2nd party in the trial Ct. who was the petnr in the Ses Ct. Be got his name mutated in the revenue records. Mukheswar Phukan (the 1st party in the trial Ct) is admittedly holding land contiguous to the land in dispute. He is a discharged Asst Sub-Inspector of Police. He applied for proceedings under Section 145 Cr. P.C. on 28-4-1949 alleging that the 2nd party, Madan Chandra Barua was making preparations to take possession of the land.
3 On 2-5-1949, a preliminary order was passed on the basis of a police report. The learned Mag stated that he was satisfied that there was likelihood of the breach of the peace & directed that notices should issue to the parties to put in written statements of their respective claims to possession. He also ordered an interim attachment of the property. In his final order passed on 13-1-1950 he considered the evidence produced by the parties. His conclusion was that it was possible to decide which party was in possession on the material placed on the record. He, therefore, ordered that the property be attached under Section 146 Cr. P.C.
4. The learned Ses J. has pointed out that the learned Mag has not given any finding that there was any likelihood of the breach of the peace in his final order This omission on the part of the learned Mag in his view would be fatal to the order. He thought that a finding that there was likelihood of the breach of the peace should have formed part of the final order, & in its absence no order could have been passed under Section 145 or 146, Cr. P.C.
5. In this view, the learned Ses J. is not correct. If a Mag is satisfied as to the likelihood of a breach of the peace he has jurisdiction to make an order in writing stating the grounds of his being so satisfied & requiring the parties concern to put in written statements in respect of the fact of actual possession. There is nothing in Section 145 which requires the Mag in the course of the subsequent enquiry to record evidence on the question whether the dispute is or is not likely to cause a breach of the peace. The absence of such evidence on the record cannot be considered a sufficient reason for interfering with the final order. It is again not necessary for the Mag to embody an express finding in his final order to the effect that a breach of the peace was likely. In this case the Mag stated in his preliminary order that he was satisfied from a perusal of the police report that there was likelihood of a breach of the peace. Madan Chandra Barua himself alleged the likelihood of a breach of the peace m his written statement. The learned Ses J. thought that the admission of the 2nd party was qualified inasmuch as what was stated was that there would be a breach of the peace if Mukheswar Phukan the 1st Party, trespassed on the land. The statement though qualified does clearly show that there was a dispute likely to cause a breach of the peace. In any case even if there was no such admission from the 2nd Party the order of the Ct is not vitiated by the omission of the learned Mag to repeat the finding already arrived at by him that there was danger of a breach of the peace.
6. In dealing with the evidence, the learned Ses J. has pointed out that Mukheswar Phukan relied on a copy of the general diary entry purporting to have made by a Police Officer on the report of a brother of Madan Chandra Barua. In this report it was stated that the land purchased by Madan Chandra Barua from Gathalu Ahom had been taken on lease by the list party. Mukheswar Phukan, for a year. But the report does not state the patta number or the dag number of the land. It is also not stated when the year of the tenancy terminated. This report was taken into consideration by the learned Mag. The learned Ses J. was of the view that the general diary entry was not duly proved & that it could not have been used as substantive evidence & may have been utilised only for confronting the person responsible for making it.
7. It is true that this report was taken into consideration by the learned Mag but he has obviously not relied on it. No prejudice, therefore, has been caused to the petnr It is not, in these circumstances, necessary to go into the question whether it was properly proved & whether in the circumstances of this case it had any evidentiary value. The evidence adduced by the petnr consisted of the statement of 3 witnesses, namely, the transferor, the scribe & a cultivator. On this evidence alone the learned Mag could not record a positive finding that as a result of the transfer in his favour Madan Chandra Barua had obtained possession of the property.
8. We do not think that there has been any failure of duty on the part of the learned Mag. He merely observed that the evidence was evenly balanced. Both parties had given oral evidence that they were in possession of the property before its attachment. But in his opinion this evidence was not enough for a positive finding of possession in favour of one party or the other. There is nothing essentially wrong in such a finding & we see no reason to interfere with it on a reference. We are not convinced that any case for reference has been made out. We therefore decline to accept the reference
9. The revn petn of Madan Chandra Barua is dismissed. The order of the learned Mag dated 13-1-1950 shall stand.
10. I agree.