Hemeon, Ag. C.J.
1. Proceedings under Section 145, Criminal P.C. were initiated against Bisan (party No. 1) and Mayaram with 6 others (party No. 2) by the Gondia police; and on 29.9.1951, the Sub-Divisional Magistrate, Gondia, passed a preliminary order under that section. Written statements were filed and evidence was recorded. As the Sub-Divisional Magistrate was unable to decide the identity of the party in actual possession, he acted under Section 146 'ibid' and ordered the attachment of the property in question. Party No. 1 sought revision of that order, but his application was dismissed by the Additional Sessions Judge, Bhandara, and he has now come up in revision to this Court.
2. The property consisted of field 'khasra' No. 294, area 5.93 acres, in Batana, Gondia tahsil, Bhandara district; and party No. 1 claimed that Narbad, its owner, had sub-let the field first to his father and subsequently to himself. He had, he added, received the land on 'batai' as usual from Narbad, had ploughed, manured and sown it; but party No. 2 was endeavoring to disturb his peaceful possession, Party No. 2 asserted 'per contra' that in June and July 1951, Narbad had transferred or gifted portions of the field to various of its members to whom possession had been delivered and that since then they had been in lawful and peaceful possession of their holdings. They also denied that Narbad had given the land on 'batai' to party No. 1 or that the latter had prepared or sown crops in it.
3. In the course of his order dated 27.5.1952 the learned Magistrate made the following observations:
I have no belief in the story of party No. 2 put through their witnesses (Nos. 4 and 5 for party No, 2).
I therefore, reject the they of party No. 1 that party No. 1 and his father who have claimed in have been the sub-lessees of the land in dispute were employed as servants by Narbad and cultivated the land in the past on behalf of the tenant Narbad.
Narbad, the owner of the field in dispute was cited by party No. 2 as their witness but he was given up by them for reasons best-known to them. It is likely that some part of his evidence might have gone against their interest and therefore he was not examined.
From the evidence on record, therefore, I find that party No. 2 was not in possession of the land in dispute at any time and that no transfer of land has taken place in pursuance of the transfer deeds.
From the evidence adduced by party No. 1 I am satisfied that last year he cultivated the land on 'batai'...and the members of the party No. 2 tried to disturb his possession.
4. It was, therefore, clear that the learned Sub-Divisional Magistrate was of the view that party No. 2 had not been in possession of the land in question. Inferentially the other party viz. party No. 1 would have been in possession, but the learned Sub-Divisional Magistrate seems to have been influenced by the fact that this party was not legally in possession at the material time because his sub-lease had expired. Section 145 deals, however, with actual possession; and even if party No. 1 remained in possession of the land alter the expiry of the sub-lease, his possession would have to be maintained for the purposes of that section.
5. This too was the view of the learned Additional Sessions Judge who 'inter alia' remarked:
No doubt it appears that the applicant was in actual possession on the date of the preliminary order. The learned Magistrate thought that his possession was wrongful because the non-applicants had purchased or otherwise acquired separate portions of the field from Narbad. However it was not within his province to decide whether the possession was wrongful or not...even if this lease had expired but the applicant had continued in possession, it was necessary to maintain him in possession.
The learned Additional Sessions Judge did net. however, make a reference to this Court for the reasons that the non-applicants had filed a civil suit and the applicant had filed an application to a revenue Court, The learned Judge also relied on a decision in - Mt. Makhana Devi v. Kamla Pat Ram AIR 1935 Oudh 255 (A), but in that case the civil Court had appointed a receiver with the consequence that a danger of a breach of the peace was removed. Srivastava J. also remarked in that case that the mere institution, of a suit in the civil Court would not by itself be sufficient to justify the dropping of proceedings under Section 145 if there is a danger of a breach of the peace which can best be averted by summary proceedings under that section.
6. Here there was material to show that party No. 1 was in possession on the relevant date and that his possession was subsisting in spite of an attempt or attempts made by the other party to oust him. That being so, the learned Sub-Divisional Magistrate was not entitled to act under Section 146. Criminal P.C. which relates to a case in which a Magistrate decides that none of the parties was in possession at the material time or is unable to satisfy himself as to which of them was then in possession of the property. The learned Sub-Divisional Magistrate's order under that section is accordingly set aside and party No. 1 is declared to be entitled to possession of the land in question until evicted therefrom in due course of law and all disturbance of such possession until such eviction is forbidden.