O.P. Trivedi, J.
1. This reference has been made by the Temporary Sessions Judge, Faizabad recommending that an order passed by the Magistrate under Section 145 (6), Code of Criminal Procedure dated 30-4-1965 may be set aside and possession of the disputed plots be delivered to the applicant before him, Daya Ram Das.
2. Raja Ram Das opposite party filed an application under Section 145, Code of Criminal Procedure before the Magistrate that he is in possession of the disputed land and that Daya Ram Das applicant had been interfering with his possession. The Magistrate called for a report from the police which submitted its report to the Magistrate confirming that there was an apprehension of breach of peace between Daya Ram Das and Raja Ram Das. Thereupon the Magistrate passed a preliminary order under Section 145 (1) of the Code on 15-1-1965 directing at the same time attachment of the disputed land. The parties filed written statements and affidavits in support of their respective claims as regards possession and on 30-4-1965 the Magistrate passed a final order under Section 145 (6) of the Code holding Raja Ram Dass Sarbarahkar of Sri Thakur Ji in possession of the disputed plots and entitled to retain such possession until ousted in due course of law and forbade the applicant Daya Ram Das from interfering with the possession of the opposite party. The plots were accordingly ordered to be released in favour of Raja Ram Das. Against this order Daya Ram Das filed a revision which was heard by the temporary Civil and Sessions Judge who has recommended the setting aside of the order of the Magistrate on the ground that Daya Ram Das was in his view all along in possession and not Raja Ram Das and that the Magistrate was wrong in recording the conclusion that Raja Ram Das was in possession.
3. After hearing the learned Counsel for the parties and on a perusal of the judgment of the Civil and Sessions Judge and the explanation of the Magistrate I am of the opinion that this reference cannot be accepted. The reference was based on the case of Masih Uddin v. State : AIR1953All383 and an unreported decision of this Court in Criminal Rev. No. 348 of 1961 (All.), Smt. Sampata v. Sahdeo decided on 7th December 1932. The Civil and Sessions Judge improperly interfered with the finding of fact recorded by the Magistrate. A Sessions Judge cannot review a finding of fact recorded by a lower Court and cannot enter into a reappraisal of the evidence himself. A Sessions Judge cannot interfere in revision when according to him there is an error on a question of fact. He can do so only in cases where there is an error of procedure or law causing substantial miscarriage of justice. Of course a finding of fact can be interfered with if material evidence has been ignored by the lower Court but in this case it cannot be said that any material evidence bearing on the question of possession which was before the Magistrate was ignored or not considered by the Magistrate. The Civil arid Sessions Judge appears to have proceeded on the basis that there was past litigation in the civil Court between Purshottam Dass and Raja Ram Dass leading to a decree from the Court of Munsif in favour of purshottom Dass and delivery of possession of the disputed land to Purshottam Dass in the year 1963. The litigation between Purshottam Dass and Raja Ram Dass on the question of title or possession was not recent and therefore it was not relevant for the Magistrate to consider the decree or orders passed in connection with any such litigation. Even the Dakhal Dehani in favour of Purshottam Dass took place in the year 1963 whereas the dispute between Daya Ram Dass and Raja Ram Dass arose in the year 1965. Under Sub-section (4) of Section 145 of the Code the duty of the Magistrate is to decide which party was in possession on the date of the preliminary order which in this case was 15-1-1965 or within two months next before such date. It cannot be said therefore that there was any recent decision of the civil Court on that question. The Dakhal Dehani related to the year 1963 and therefore no decision on the question who was in possession on the date of the preliminary order or within two months prior to it could be based possibly on the Dakhal Dehani of 1963. Besides, the previous litigation in the civil Court was not between the same parties but between Purshottam Dass and Raja Ram Dass. No doubt Daya Ram Dass laid claim to the land in dispute as a legatee of Purshottam Dass but Raja Ram Dass never admitted that Purshottam Dass had executed a will in favour of Daya Ram Dass. Consequently it could not even be presumed that on the death of Purshottam Dass, Daya Ram Dass entered into possession of the disputed land as legatee of Purshottam Dass. Documents relating to the previous litigation and the Dakhal Dehani of 1963 were therefore wholly irrelevant material for purposes of the limited enquiry on the question of possession which was before the Magistrate. In the case of : AIR1953All383 (supra) it was observed:
It is the duty of the Magistrate holding proceedings under Section 145 to maintain the rights of the parties when such rights have been declared by a competent Court within a time not remote from taking proceedings under the section.
The ruling clearly does not apply as in this case firstly the rights of the parties had not been adjudicated upon by a competent Court and secondly there was no such adjudication within a time not remote from taking proceedings under this section, or in other words there was not recent decision of the civil Court between the parties on the question of possession. The decision of this Court in Criminal Revision No. 343 of 1961 (All) (supra) for like reasons did not apply. In that case the dispute giving rise to the proceedings under Section 145 of the Code arose between the parties on 27-9-1960. The Court of Munsif had decided in a decree between the parties on 23-11-1959 that Smt. Sampatta, one of the parties to the dispute, was sirdar of the land and in possession of the plots. The matter was taken in appeal to the Additional Civil Judge who affirmed the decision of the Munsif on 10-1-1961, that is to say, during the pendency of the proceedings under Section 145, Code of Criminal Procedure. It was therefore clear there was a recent decision of the civil Court declaring one of the parties to the dispute as being in possession and it was for this reason that it was held by this Court in the said criminal revision that the Magistrate was wrong in directing delivery of possession of the plots in dispute to a party other than Smt. Sampatta.
Here there has been no such recent decision of a competent Court on the question of possession and therefore the Civil and Sessions Judge was in error in interfering with the finding of fact recorded by the Magistrate on the question of possession relying upon those two decisions of this Court and basing his final order on the upshot of the litigation between Purshottam Dass and Raja Ram Dass. Even if there was a recent decision of a competent Court between the parties on the question of possession even then the Magistrate was bound to decide whether on the basis of that decision it could be found which party was in possession on the date of the preliminary order or within two months before it. If the decision of the competent Court on the question of possession did not cover that period then the Magistrate would have been free to record his own finding on the question of possession, for not unoften it happens that before the two months period provided under Sub-section (4) of Section 145 possession of the parties may have been adjudicated upon by a competent Court but still one of the parties may refuse to abide by the decision and take the law into its own hands and interfere with the possession of the other party. When such is the situation it may be a case of a dispute likely to lead to the apprehension of breach of peace. It is the duty of the Magistrate to prevent such breach of peace by taking action under Section 145 of the Code.
4. In the case of Jafanllussain v. State 1968 All LJ 1018, it was observed that the jurisdiction of the Magistrate under Section 145 of the Code remains unaffected by the pendency of a civil litigation between the parties in respect of a title. In the case of Mst. Hosanki v. State : AIR1956All81 a Division Bench of this Court observed:
In order to attract the application of Section 145, it is not necessary that the dispute should be a bona fide one. It is erroneous to think that when a Magistrate assumes jurisdiction, he does so with the intention of unsettling a settled fact at the instance of the vanquished party, He does not decide the matter contrary to the Civil Court's decision at all. If the Civil Court has decided the question of title only, his decision that the other party has possession cannot possibly be said to be in conflict with the Civil Court's decision. Even if the Civil Court's decision involves a finding on possession in favour of the title-holder, the possession might have been disturbed after the decision and not only would it be open to the Magistrate, but also it would be his duty, to declare that the other party is in possession. If the Civil Court has delivered possession to a party and the possession has not been disturbed by the other party, there is no reason to think that the Magistrate by assuming jurisdiction would decide the other party to be in possession; if proper evidence is led, he would find the party that succeed-ed in the Civil Court still in possession and would maintain it. If, however, he has been dispossessed after the delivery of possession by the Civil Court, there is no reason why the Magistrate should ignore that fact and hold the party successful in the Civil Court to be still in possession.
5. For the above reasons I am of the opinion that this reference cannot be accepted and the finding of the Magistrate on the question of possession must stand undisturbed.
6. I reject the reference accordingly and uphold the order of the Magistrate dated 30-4-1965. The record of this case shall be sent down to the Court of the Sub-divisional Magistrate, Tenda, Faizabad, immediately.