V.N. Verma, J.
1. This reference has been made by Sessions Judge Ballia with the recommendation that the order dated 15-5-73 passed by S.D.M. Ballia delivering possession of the subject of dispute to Deo Sagar Pande (Second Party) in proceedings under Section 145 Cr.PC be quashed.
2. The subject of dispute in the case Under Section 145 Cr.PC was Chak No. 463 situate in Chandpur district Ballia. This chak was comprised of four plots bearing Nos. 866, 867, 868 and 869 measuring 2.45 acres. It appears that there was a dispute between Baij Nath Singh (First Party) and Deo Sagar Pande (Second Party) regarding the aforesaid Chak. That dispute generated much attention and there was likelihood of breach of peace. S.O.P.S. Bairia, therefore, submitted a report in the Court of S.D.M. Ballia and prayed that action Under Section 145 Cr.PC be taken. The learned Magistrate felt satisfied that there was a dispute between the parties regarding the disputed land and that dispute was such as was likely to cause a breach of peace and he, therefore, drew up a preliminary order on 2-4-77 and also attached the subject of dispute. The parties were then called upon to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and also to produce evidence in support of their respective claims, Baij Nath Singh filed his written statement and stated that Chak No. 463 belongs to him and his co-sharers. According to him, he had always been in possession over this Chak. He denied the right and title of Deo Sagar Pande to this Chak. He also denied that he was ever in possession of it. It appears that Deo Sagar Pande did not appear in Court to contest the case and, therefore, the learned Magistrate passed ex parte orders in favour of Baij Nath Singh on 16-8-70. Deo Sagar Pande went up in revision against the ex parte order passed against him and the High Court eventually set aside that order. The case was remanded to the Magistrate for re-hearing. Deo Sagar Pande then filed his written statement and claimed to be the owner of Chak No. 463. According to him, he had purchased this Chak from its rightful owner and had always been in possession of it, since the time he purchased it. He also took up the plea that the subject of dispute had come under consolidation operations and. therefore, the case Under Section 145 Cr.PC should not proceed in respect of it. The case, however, proceeded and the Magistrate referred the matter to the Civil Court Under Section 146 Cr.PC On 3-2-73 the Munsif concerned returned his finding that Deo Sagar Pande (Second Party) was entitled to the possession of the subject of dispute. In accordance with this finding of the learned Munsif, the Magistrate passed an order delivering possession of the subject of dispute to Deo Sagar Pande. Baij Nath Singh (First Party) felt aggrieved with the order passed by the learned Magistrate and went up in revision to the Court of Session. The learned Sessions Judge came to the conclusion that the order passed by the learned Magistrate delivering possession of the disputed property to Deo Sagar Pande was bad and legally unsustainable and he has therefore, made this reference with the recommendation as aforesaid.
3. The learned Sessions Judge found the order passed by the Magistrate to be bad on two counts: One was that Baij Nath Singh had raised the plea that apprehension of breach of peace in regard to the disputed land had come to an end, but despite that the learned Magistrate proceeded to decide the case without giving a finding whether apprehension of breach of peace continued to exist or not; and the other was that the land in dispute had come under consolidation operations in consequence whereof the proceedings Under Section 145 Cr.PC should have stood abated, but in spite of this legal hurdle in the way, the Magistrate proceeded with the case and passed the impugned order. Both these two grounds, to my mind, were not such which could have rendered the impugned order to be illegal. So far as the first ground is concerned, it may be mentioned here that Baij Nath Singh never mentioned either in his written statement or in the affidavit filed by him, that apprehension of breach of peace in regard to the disputed land had come to an end. All that he had mentioned in his written statement and in his affidavit was that there was no apprehension of breach of peace from his side. There may not have been apprehension of breach of peace from his side, but that apprehension could have been from the side of the other party. The other party had never said that there was no apprehension of breach of peace from his side also. Even one side can create a situation that can cause apprehension of breach of peace. That being so, the Magistrate cannot be said to be wrong when he did not attach much importance to the plea raised | by the first party that there was no apprehension of breach of peace from his side, and he continued to decide the case on merits. Further, one will find that the stand taken by the first party in regard to the existence or non-existence of the apprehension of breach of peace was highly inconsistent. In the first affidavit filed by him on 29-6-70 he alleged that apprehension of breach of peace did not exist. He did not stick to this position for long and in the affidavit dated 30-7-70 filed by him, he took the plea that Deo Sagar Pande was a turbulent man and there was apprehension of breach of peace from his side. This was, however, not the end of the matter. On 26-7-72 he filed yet another affidavit saying that there was no apprehension of breach of peace. After saying so he kept quiet and never asked the Magistrate to decide the question whether apprehension of breach of peace continued to exist or not. It appears that he never pressed this point before the Magistrate and the Magistrate, therefore, did not decide it. In Ramji Singh v. State of U. P. 1972 All WK (HC) 445 : 1972 Cri LJ 1542 in a situation similar to the one before us, it was held that if a party took up the plea that apprehension of breach of peace had come to an end, but never pressed that plea before the Magistrate, the Magistrate was not bound to decide it. Therefore, if in the present case, the Magistrate decided the case on merits despite the fact that the First Party had taken a belated plea that apprehension of breach of peace had come to an end, he cannot be said to have done anything illegal.
4. Now coming to the second point, that also, to my mind, is without any substance. The learned Sessions Judge has observed that as the village in which the disputed property lay, had come under consolidation operations, the proceedings Under Section 145 Cr. P, C, stood abated and the Magistrate, therefore, should have stayed his hands and not decided this case. In making this observation, he relied on a decision rendered by this Court in Criminal Reference No. 399 of 19&6 Mohammad Murtaza v. Bijai Bahadur Singh decided on 22-4-68. I have gone through the order passed by this Court in this reference carefully; the learned Judge who decided this case has given no reason why proceedings Under Section 145 Cr.PC should stand abated, if the subject-matter of dispute in the case had come under consolidation operations. All that the learned Judge has said is that as the subject-matter of dispute hag come under consolidation operations, the case Under Section 145 Cr.PC stood abated. Section 5 of the U. P. Consolidation of Holidings Act deals with the effect of notification made Under Section 4 (2) of the said Act. Sub-clause (2) (a) of Section 5 says that if the notification under Sub-section (2) of Section 4 has been made in the official gazette, every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area shall stand abated. The case before us is not a case in which any of the parties has asked for declaration of his right or interest in the disputed land. All that has to be looked into in this case is, as to which of the two parties was in possession of the disputed land on the date the preliminary order was drawn. Even a person having no right or interest in a land can initiate proceedings Under Section 145 Cr.PC and the Court will deliver possession of the land to him if it finds that he had been in possession of that land on the date the preliminary order was drawn and within two months prior to that. The provisions of Section 5 (2) a) of the U. P. Consolidation of Holdings Act, therefore, had no application to this case. The learned Sessions Judge was definitely wrong when he held that the present proceedings Under Section 145 Cr.P.C. stood abated because the village in which the property in dispute was situate had come under consolidation operations.
5. Thus, from a perusal of what I have mentioned above, it is clear that the Sessions Judge has not viewed this case in its correct perspective. He has wrongly held that the order passed by the Magistrate in this case was wrong. In my opinion, the order which the Magistrate had passed in this case was a perfectly proper and valid order and must, therefore, be maintained.
6. In the result, I reject this reference and confirm the order passed by the learned Magistrate. The file of the case should be sent down to the Court of the Magistrate forthwith.