1. This is an application in revision by Shankar against an order made under Section 145, Criminal P. C. by a Magistrate of the first class of the district of Allahabad declaring that the opposite party is entitled to possession of the plots in dispute until evicted therefrom in due course of law.
2. It appears that the plots in dispute were within the zamindari of two persons, Mt. Jannatunnissa Bibi and L. Manmohan Das, and were in the occupancy of a tenant Durga. On Durga's dying heirless, the plots were taken possession of by certain persons who were, however, ejected on a suit being filed by the two zamindars.
3. Jannatunnissa Bibi gifted her share of the property to her daughter Khairunnissa, wife of one Wahajuddin. On 29th December 1947, Wahajuddin lodged a report at the police station, Phulpur, alleging that Shankar along with some others was interfering with the possession of Mt. Khairunnissa over the plots in dispute and that there was a great danger of the breach of peace. The Sub-Inspector of police after enquiry reported that there was a dispute between the zamindars, each one claiming the plots to be his own Khudkasht and that there was a danger of the breach of peace between the men of both the sides, Nimber Ahir and others on the side of Wahajuddin, and Shankar and others on the side of L. Manmohan Das, and suggested that the plots in dispute be attached under Section 145, Criminal P. C. On receipt of this report the learned Magistrate passed a preliminary order under Section 145, Criminal P. C., on 6th January 1948. It was in the following terms :
'As there is apprehension of the breach of peace, I call upon the parties to put in their written statements of their respective claims. As the situation is one of emergency, I order the attachment of the property in dispute.'
In pursuance of this order, notices were issued to Mt. Khairunnissa through Wahajuddin husband and Nimber as party No. 1, and to Shankar alone as party No. 2. L. Manmohan Das on whose behalf Shankar was alleged in the police report to be claiming the plots was not impleaded in the case the plots were also attached and entrusted to Shankar party No. 2, the present applicant, as Supurdar.
4. On 4th February 1946 an application, supported by an affidavit, was put in on behalf of Mt. Khairunnissa by Wahajuddin, her husband and Karpardaz. In this application, it was prayed that the proceedings under Section 145, Criminal P. C., be dropped as they were initiated without any basis and the plots in dispute be released in favour of Mt. Khairunnissa; and in the alternative if this was not possible, then another Supurdar be appointed in place of Shankar who was opposite party in the case. In the affidavit filed in support of the application, it was stated by Wahajuddin that there was no danger of the breach of peace on his side and that, therefore, the proceedings under Section 145, Criminal P. C., should not be continued. The Magistrate ordered that some other suitable person should be appointed as Supurdar in the presence and with the consent of both the parties. The parties thereafter filed their respective written statements, on 7th April 1948, Shankar alleged that there was no apprehension of the breach of peace, that he along with others was cultivating the plots as partners of the zamindars on condition that out of the whole proceeds, one half would go to the actual tiller of the land in dispute and out of the remaining half, one fourth will be taken by L. Manmohan Das and three-fourths will he taken by the other zamindar Jannatunnissa Bibi, that there was a dispute between the two sons-in-law of Mt. Jannatunnissa Bibi, namely, Abdul Qadir and Wahajuddin, and so the arrangement was now being sought to be disturbed by Mt. Jannatunnissa Bibi.
5. On behalf of the second party, Nimbar pleaded that he was a tenant of Wahajuddin and was looking after the cultivation of the plots on his behalf, that Shankar and his companions were not in possession and that Wahajuddin was in possession. On behalf of Khairunnissa, it was pleaded that the plots were the Khudkasht of Mt. Jannatunnissa Bibi who transferred her zamindari rights to her daughter Khairunnissa, that Wahajuddin on behalf o Khairunnissa was looking after the cultivation and the plots were in possession' of Khairunnissa, that there was no danger of the breach of peace on behalf of Khairunnissa Bibi or Wahajuddin and that Shankar and others wanted to take forcible possession over the plots, Evidence on both sides was taken by the learned Magistrate and in the end he came to the conclusion that the first party was in possession at the relevant time. He, therefore, made the order referred to above.
6. On behalf of Shankar, the applicant, learned counsel has alleged that the order is bad on three grounds, firstly, that the real disputants were not impleaded; that the preliminary order did not give any reasons why the Magistrate was satisfied that danger of the breach of peace existed, and as such the whole proceedings were vitiated; and thirdly, that there was in fact no apprehension of the breach of peace and, as such, the Magistrate had no jurisdiction to proceed with the case once it was shown to him that no such dispute existed.
7. As regards the first point, it must be stated at once that the Magistrate was in error in not issuing notice to L. Manmohan Das, who, according to the police report, was claiming possession over the plots through his man Shankar. Just as notices were issued to Mt. Khairunnissa and Wahajuddin and their man Nimber, so also notice should have been issued to L. Manmohan Das in addition to Shankar. It is of great importance that the real disputants are brought before the Court. If Shankar were merely a servant of L. Manmohan Das and had not claimed possession over the plots on his own behalf, I would have quashed the proceedings of the learned Magistrate, as was done by this Court in Pearey Lal v. Emperor, 1934 A. L. J. 650 ; (A. I. R. (21) 1931 ALL. 853: 36 Cr. L. J. 114). What distinguishes the present case, however, from that case is the fact that in the present case Shankar, who was served with a notice, claimed himself, along with others to be in cultivatory possession of the plots in dispute. He clearly alleged in his written statement that he was, along with others, ''cultivating the plots and was in possession thereof'. He also alleged that he was a partner of the zamindar on condition that one half of the produce would go to the tillers of the soil and the other half to the zamindar. This allegation, however, did not mean that Shankar did not claim to be in cultivatory possession of the plots in dispute. Where a person in actual possession of the disputed plots is impleaded in proceedings under Section 146, Criminal P. C., it cannot be said that the proceedings are invalid simply because the zamindar, who may also be interested in the question of the possession over the land, has not been impleaded.
8. In the present case, plots were attached. Attachment is notice to the whole world. It can, therefore, be presumed that L. Manmohan Das came to know of it. On the attachment being effected, it was open to L. Manmohan Das to have appeared on the scene and got him-self impleaded. For some reason or the other no representation was made on his behalf in the Court below. As he was not impleaded in the case, his interest cannot be affected by the order passed by the learned Magistrate. We have, therefore, in these proceedings simply to see whether the order of the lower Court, which affects Shankar, was correctly passed as against him or not.
9. As regards the second point urged on behalf of the applicant that the preliminary order disclosed no reasons for the satisfaction of the Magistrate about the existence of the dispute, as required by Section 145 (1), Criminal P. C., it has to be conceded that the Magistrate did not, in so many words, mention the reasons why he was satisfied that the dispute giving rise to danger of the breach of peace existed. The order, however, was made on the police report itself and it is obvious that the reasons for his satisfaction were those given in the police report. The omission from the order of any mention of the grounds for his satisfaction by the Magistrate is merely an irregularity and it cannot be said that it has prejudiced the applicant in any manner. The proceedings cannot be held to be vitiated on account of this irregularity.
10. The third ground urged is that both the parties admitted that there was no apprehension of the breach of peace and, as such, the Magistrate should have dropped the proceedings under the provisions of Section 145 (6), Criminal P. C. This contention has no force. It is true that in his written statement Shankar stated that there was no danger of the breach of peace. In support of his allegation he merely stated that 'there is no dispute with us, but that there is some dispute between Qadir and Wahaj, the other son-in-law.' The assertion that there was no dispute with Shankar is clearly false, as the two parties in the dispute were each claiming their own respective possession over the plots in question.
11. It is also true that Wahajuddin stated that there was no danger of the breach of peace from his side, but the written statement of Wahajuddin clearly showed that he apprehended danger from the side of Shankar. It is true that Wahajuddin made an application to the Magistrate that the proceedings under Section 145, Criminal P. C., be quashed. But that was obviously done because he was dismayed to find that the very person, from whom be apprehended danger and who was impleaded as one of the parties in the case, had been appointed a Supurdar of the plots in dispute. The appointment of Shankar as Supurdar was wholly unjustified and should not have been made. His appointment naturally put Wahajuddin and Mt. Khairunnissa in fright; and if under the influence of that fear they thought that, instead of plots remaining in possession of Shankar, it was better that the whole proceedings under Section 145, Criminal P.C. be dropped, it cannot be said that no danger of the breach of peace was in existence.. In my opinion, the Magistrate was justified under those circumstances not to have dropped the proceedings but to have proceeded with the case. It must be remembered that the allegation by one party that there was no danger of the breach of peace from his side does not amount to saying that there was no danger of the breach of peace from any side whatsoever.
12. The Magistrate has recorded a finding that 'I am, therefore, satisfied that Mt. Khairunnissa is in peaceful possession and the opposite party unlawfully interferes with her lawful possession which gave rise to imminent breach of the peace.' I cannot say that this finding was not justified upon the materials on the record.
13. I, therefore, see no force in this application in revision and dismiss it.
14. I, however, make it clear that the order of the Magistrate does not, in any way, affect the interest or claims of L. Manmohan Das.