1. The facts giving rise to this revision application are as follows. The First Glass Magistrate of Honavar took proceedings under Section 145 of the Criminal Procedure Code in respect of a dispute which was found to be likely to cause a breach of the peace relating to two fields Survery Nos. 56 and 57 in the village of Kalkod. The dispute was between three brothers and the question in dispute was whether the three brothers were jointly entitled to these two fields or whether there had been a partition in virtue of which the two fields had fallen to the share of Venkatraman, the elder brother. Besides these two survey numbers there were a number of lands in other villages belonging to the family, and as there was reason to believe that there might be a dispute leading to a breach of the peace in respect of those other lands also, proceedings under Section 145, Criminal Procedure Code, were taken as regards those lands in the Court of the Magistrate, First Glass, Sirsi. The latter Magistrate after holding an inquiry decided that the case was not one which ought to be dealt with under Section 145. The view he took was that the dispute was one of a purely civil nature between members of a Hindu joint family about property in the joint possession of all the three brothers. In the circumstances he held that the Court was not competent to pass any order under Section 145, and that if any breach of the peace was imminent the proper course would be to bind over the parties under Section 107 of the Criminal Procedure Code. He, therefore, directed that the proceedings should be dropped and the parties referred to the Civil Court. This order was passed on September 5, 1929. In the meantime, however, the proceedings in the Court of the Magistrate, First Class, Honavar, had been continued. The learned Magistrate recorded evidence as to the question whether, there had or had not been a partition and he found it impossible to make up his mind on the point. The order passed by him reads more like a judgment in a civil suit than in a Magisterial proceeding. But he has finally come to the conclusion that it is doubtful whether Venkatraman, that is, the elder brother, alone or all the brothers together were in possession of Survey Nos. 56 and 57 of Kalkod, and as he was unable to satisfy himself as to which of the parties was in exclusive possession of the lands in dispute, he applied Section 146 of the Criminal Procedure Code and attached the two fields until such time as a competent Court had determined the rights of the parties thereto. The Patel of Kalkod was appointed as receiver. This order was passed on April 11, 1929. Venkatraman now comes to this Court in revision and prays that the order of April 11,1929, just referred to, should be set aside.
2. It is contended that the Magistrate was not competent to deal with this dispute under Section 145 and had no jurisdiction to make the order which he has made under Section 146, This contention has been supported by a reference to the case of Makhan Lal Roy v. Baroda Kanta Roy 11 C.W.N. 512 : 5 Cri. L.J. 296. In that case it was decided that Section 145 did not apply because the dispute was not one between two opposing parties having adveree rights to exclusive possession of the land but was a dispute between two parties having joint rights to the land in dispute, each of which was claiming exclusive possession. That was the only reason given by the Court for holding that the matter could not be determined under Section 145. Seeing that Section 145 merely contains the words 'a dispute likely to cause a breach of the peace concerning any land or water or the boundaries thereof,' and seeing that neither in this section nor in Section 145 is there any provision which clearly limits the dispute, which can be dealt with under Chap. XII, to a dispute by 'two opposing parties having adverse rights to its exclusive possession', we should hesitate about following this decision, even if it were clearly in point. The ruling, however, does not properly apply to the facts of the present case, for whereas in that case it was found as a fact that the dispute was between parties having joint rights to possession, in the present case the Magistrate has been unable to make up his mind on the question whether the dispute is one between parties having joint rights or between one party who has an exclusive right in virtue of the partition and the other members of what was formerly a joint family. All that Section 146 requires is that the Magistrate should be unable to satisfy himself as to which of the parlies was in 'such possession,' that is, actual possession, of the subject of dispute. And although the Magistrate appears to have been mainly concerned with the question whether there had been a partition or not, it is also perfectly clear from his order that he was unable to satisfy himself on this question of actual possession.
3. But although we are not prepared to hold that the Magistrate's order under Section 146 was not competent, we nevertheless take the view that it was an order which ought not to have been made in the circumstances of the case. It is clear that whether there has been a partition or not, the elder brother Venkatraman is entitled to be in possession. If the alleged partition really took place then he is entitled to be in possession in his own right. If it did not take place then ha is entitled to be in possession as the elder brother and manager of the family. The order of attachment by which the two fields have been placed in the possession of the Patol of the village does not, therefore, seem to be a reasonable one. Moreover, it is fairly obvious that the dispute between the parties must sooner or later be settled by civil litigation and it is possible that the necessary civil proceedings may be complicated by the fact that proceedings under Sections 145 and 146 have been taken in respect of these two fields, whereas the proceedings have been dropped with regard to other lands belonging to the family. The remarks of Marten, J. (now Sir Amberson Marten, C.J.) in In re Mallappa : AIR1926Bom313 , as to the improper use of Section 145 are very apposite in this case. If there is any danger to the breach of the peace, proceedings can be taken under s, 107 and all the parties can be bound over on such terms as may be necessary. We think that is the course which ought to be followed in this case. We, therefore, set aside the order of attachment dated April 11, 1929, and direct that possession should be handed over to the petitioner Venkatraman Kama Hedge.
4. I agree.