1. This is a revision petition filed by the petitioner against the order of the learned City Magistrate, Bangalore, in Cri. Misc. no. 131 of 1955, holding that the respondent-first party was entitled to remain in possession of the disputed property until evicted therefrom in due course of law.
2. The facts that have given rise to this petition are briefly as follows: Proceedings were started by the police under Section 145 of the Criminal Procedure Code in Cri. Mis. No. 131/55 on the file of the learned City Magistrate, Bangalore, tn connection with a dispute between the petitioner-2nd party and the respondent-1st party in relation to a strip of land lying between premises No. 3 belonging to the petitioner and No. 4 belonging to the respondent in Miller Road, Civil Station, Bangalore.
The learned Magistrate enquired into the matter and held that there was no dispute with respect to the property in question and that there was no likelihood of any breach of the peace and observed that the proceedings should not have been initiated at all- In view of this conclusion arrived at by him, the attachment was withdrawn and the subsequent proceedings were set aside, in addition to this, he also gave a declaration that the respondent-1st party was entitled to continue in possession of the disputed property until he was evicted therefrom in due course of law. As against that order, this revision petition is preferred.
3. The main contention raised by the learned counsel for the petitioner is that the learned Magistrate had no Jurisdiction to pass an order declaring that the respondent was entitled to continue in possession until he was evicted therefrom in due course of law in the light of his own earlier finding that no dispute existed with respect to the property in question and that there was no likelihood of a breach of the peace.
4. The order of the learned Magistrate is conceded to be one passed under Section 145(5) of the Cri. P. C. That sub-section runs thus:
'Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final.'
According to this sub-section, the learned Magistrate should cancel any order passed by himself under Section 145(1), Cri. P. C. and suspend all further proceedings when he comes to the conclusion that no dispute exists or has existed with respect to the property in question and that there was no likelihood of a breach of the peace. Belying on the wording of Sub-section (5), it is contended by the learned counsel for the petitioner that the order passed by the learned Magistrate with respect to the possession of the property is one without jurisdiction.
5. Reliance was placed by the learned counsel for the petitioner on a case reported in Abdul Aziz Khan v. Aisha Bibi AIR 1948 Oudh 184 (A). In that case, it is laid down that normally criminal Courts cannot deal with cases of possession of immovable property but that Section 145 gives them power to deal even with those classes of cases provided they are satisfied that a dispute exists with respect to any property and that there is a likelihood of a breach of the peace. Another case relied on by the learned counsel for the petitioner is that reported in Ram Lal Singh v. The State : AIR1955All46 .
Therein it is laid down that when a Magistrate finds that there is no likelihood of a breach of the peace, he has no jurisdiction to decide the further question as to which party is in possession of the disputed property. On the basis of these decisions, the learned counsel argued that when the learned Magistrate found that no dispute existed with respect to the property in question and that there was no likelihood of a breach of the peace and when on that basis he cancelled the order passed under Section 145(1) and stayed the further proceedings, he (Magistrate) ceased to have any jurisdiction to pass any order as to possession.
6. No doubt, these decisions support the contention of the learned counsel to some extent but they do not conclusively establish that under no circumstances a Magistrate is competent to pass orders as to possession when he acts under Section 145(5) of the Cri. P. C. The correct position of law appears to be this. Whenever a Magistrate acts under Section 145(5), he will have jurisdiction to pass orders as to possession provided he has got materials on record to show that the property in question was in possession of a particular party at the time of attachment. It is but right that such an incidental order should be passed in order to restore status quo ante: but if there are no such materials available on record at the time he acts under Sub-section (5) of Section 145, he will have no jurisdiction to pass orders regarding possession of the property nor can he allow parties to adduce evidence as to possession after he comes to the conclusion that there was no dispute which was likely to cause a breach of the peace.
This view Is supported by the very decision relied on by the learned counsel for the petitioner, reported in : AIR1955All46 . Therein Asthana J. of the Allahabad High Court has further observed that if from the materials on record it appears to the Magistrate that the property had been attached by police from the possession of any particular party, he can pass an incidental order that the attached property might be released in his favour in order to restore the status quo ante. Again in the case reported in State v. Sheoratan Singh AIR 1951 Nag 201 (C), it is held that when a Magistrate acts under Section 145(5) and cancels the previous order passed under Sub-section (1), there would be nothing wrong if he (Magistrate) passes an incidental order cancelling the attachment and directing the party found to be in possession to continue until evicted therefrom in due course of law.
7. In the present case, the police report goes to show that the respondent-1st party was in possession of the property at the time of attachment. The evidence adduced on the respondent's side appears to be highly disinterested, and that discloses that the respondent-1st party was and has been in possession of the property in question. When that is so, there is nothing wrong in the Magistrate having declared, relying on the materials available on record, that the first party was entitled to remain in possession until evicted therefrom in due course of law. That portion of the order of the learned Magistrate has to be upheld.
8. The next contention urged on the side of the petitioner is that the order of the learned Magistrate awarding costs of Rs. 200/- to the respondent-1st party is without jurisdiction and irregular. Under Section 148, Cri. P. C., a Magistrate has got jurisdiction to award costs to a successful party. But the contention of the learned counsel for the petitioner is that the award of Rs. 200/- as costs is not based on any materials and that this fixation is quite arbitrary. There appears to be some substance in this contention.
The order awarding costs is a judicial order and must be based on proper materials. In the present case, there is no evidence to show costs actually incurred by the respoudent-1st party. The Magistrate has not given any valid or convincing reasons for fixing costs at Rs. 200/-. It has been held by this Court in the case reported in 4 Mys LJ 184 (D) that an order assessing costs payable to a successful party without any evidence to show the costs actually incurred is one without jurisdiction. A similar view has been taken by the Patna High Court, in the case reported in Manglu Sahu v. Ramdhani Tamboli, AIR 1929 Pat 93 (E). No doubt, it cannot be said that the parties in this case have not incurred any costs, but in the absence of evidence to show the amount of expenses actually incurred, it is not possible to fix any definite Bum as costs due to the respondent-1st party. Under these circumstances, the order of the learned Magistrate as to costs has to be set aside.
9. In the result, the order of the lower Court awarding costs to the respondent-1st party is set aside, but, in other respects, this revision petition stands dismissed.
10. Revision partly allowed.