Ganga Nath, J.
1. This is a reference by the learned Additional Sessions Judge of Basti recommending that the order of the Magistrate, dated 23rd October 1935, under Section 145 , Criminal P.C., be set aside, and he (the Magistrate) be directed to make a fresh enquiry under Section 145, Criminal P.C., if he were of the opinion that the dispute was likely to cause a breach of the peace.
2. Four plots in khata khewat No. 5 of village Melan Khurd Guzru are owned by a number of co-sharers. They were leased some years ago to Mahadeo and Sarsuti who were subsequently ejected. The lessors obtained possession over the plots in October 1931. Before their ejectment the lessees (Mahadeo and Sarsuti) got the plots entered in the name of their grandson Bhuneshar as his statutory tenancy. The co-sharers then filed a case for the correction of revenue papers and for the entry of their names as Khudkasht holders. They were successful. Some of the co-sharers leased the plot to Bhagwantman. In September 1934 Bhuneshar got a lease from a co-sharer Durga. The result was that a dispute arose over possession of the crops. On the application of Bhagwantman the learned Sub-Divisional Magistrate took proceedings under Section 145, Criminal P.C. After enquiry he passed an order on 23rd October 1935 holding that the crops belonged to Bhagwantman and declaring him (Bhagwantman) to be entitled to possession over the fields until evicted therefrom in due course of law. Bhuneshar filed a revision against this order. The learned Sessions Judge has made the reference on two grounds: (1) that the notice under Section 145, Clause (1), Criminal P.C., should not have been issued to the two rival lessees only but to all the co-sharers who would be affected by the learned Magistrate's order; and (2) that the learned Magistrate in passing his order does not appear to have applied his mind to the question of who was in actual possession of the land.
3. As regards the first point it would appear from Clause (1), Section 145, Criminal P.C., that all that the Magistrate is required to do under it is that he should make an order in writing stating the grounds of his being satisfied that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction and requiring the parties concerned in such dispute to attend his Court in person or by pleader within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Under Clause 4, Section 145, the Magistrate has to decide, if possible, whether any and which of the parties was at the date of the order in possession of the said subject. The Magistrate has to decide this without reference to the merits of the claims of any of such parties to a right to possess the subject of dispute. The enquiry under Section 145, Criminal P.C., is confined to the fact of actual possession irrespective of the merits of the claims of the parties concerned. A claim therefore merely to a right to possession, as distinguished from a claim to be in possession, would be outside the scope of the enquiry. It is therefore not necessary that all parties interested in or claiming a right to the property in dispute or entitled to it should be made parties to the proceeding. In Krishna Kamini v. Abdul Jabbar (1902) 30 Cal 155 it was held that:
Proceedings under Section 145, Criminal P.C., are not without jurisdiction because the magistrate on information before him has made parties thereto only those actually in dispute and likely to cause a breach of the peace, although it is brought to his notice that another party is interested in the subject-matter of the dispute, nor is the Magistrate bound to stay such proceedings. The words 'parties concerned in such dispute' are intended to indicate all persons claiming to be in possession at the time of the initial orders under Clause (1), Section 145 of the Code. A claim merely to a right to possession, as distinguished from a claim to be in possession, would be outside the scope of the enquiry.
4. In this case, as already stated, the dispute lay between the two rival lessees who were before the Court, and who claimed to be in actual possession. There is nothing to show that there, was any other party who also claimed to be in actual possession. There was therefore no defect in the proceeding. As regards the second point, the learned Magistrate has found that the crops over which the dispute was, belonged to Bhagwantman. This indirectly shows that it was Bhagwantman who was in actual possession, otherwise he could not have sown and grown the crops in dispute. The fact that the learned Magistrate has not referred to the evidence of the patwari does not show that he had not applied his mind to it. It appears that he did not rely on it and attached no importance to it. There is no defect in the proceedings or in the order therefore ordered that the reference be rejected.