1. This is a reference by the S.J. Nowgong on an application in revision from the learned Magistrate's order under both Sections 145 and 107, Criminal P.C. As understood by the parties the order is, firstly one under Section 145, Criminal P.C. that a part of a house in dispute is in the possession of Mathura Bani, who applied in revision, and another part is in possession of his half brother Jageshwar Bani (the opposite party) and secondly that both of them should enter into bonds to keep the peace as each has been trying to disturb the possession of the other over his part of the house The questions for decision are, whether and in what circumstances these two sections could be introduced in the same proceeding; secondly whether the mixing up of the two sections had misled the parties; and thirdly whether the Magistrate's finding that part of the house as in possession of Jageshwar Bani is perverse and against the trend of the evidence, and as such calls for this Court's interference in revision.
2. Both parties are the sons of one Nanda Ram Bani, Jageshwar by his first wife, and Mathura Bani and three others by the second. As early as 1942 at the time of the Bijawar State there was a dispute centring round the liability for the maintenance granted by the Darbar to the widow of one Mathura Bani's full brother. There having been no partition by metes and bounds different brothers had been in separate possession of different items of the property for a long time. The Durbar thought, on the one hand, that Jageshwar Prasad Bani, as the head of the joint family, should pay the maintenance, and for another that in lieu of this extra burden he should have the exclusive possession of a house and shop in a single structure at Bijawar which is the subject matter of the present dispute. Mathura and his surviving brothers, however, were not agreeable to giving up that building. Nor was any of the brothers willing to solve the entire controversy by suing for partition of all the properties, including this house. They however, do seem to have had a partition suit at Kanpur in regard to some properties there, but nothing seems to have come out of it at least in regard to the Bijawar properties. It is common ground that the status of jointness continues, with the separate possession of different brothers over different properties. In 1943 Jageshwar Prasad brought a case, specifically alleging, that he had been dispossessed of this house by Mathura Bani and his men in spite of the Durbar order. That case ending in acquittal, the 'status quo of 1943 was not disturbed.
3. We hear of this again in 1948, when Jageshwar Bani filed a civil suit In the Courts of the newly formed Vindhya Pradesh. A certified copy of the judgment was exhibited before the Magistrate; the plaintiff also filed what he calls a copy of the plaint; there are formal grounds for its not being read as evidence. However, the judgment itself show that Jageshwar Bani wanted declaration and possession - obviously exclusive possession - for himself over this house. That suit was dismissed. It was, however, observed in the judgment that the family was still joint.
4. The present proceedings were started on a report of the police that both parties were claiming that they were in possession of the house and were preparing to fight it out with the help of their servants. Jageshwar Bani's contention was that since the Bijawar Durbar's order of 1942 he was in exclusive possession of the house whereas Mathura Bani's contention was that nothing was done upon that j order and that Jageshwar Bani himself has admittedly been out of possession at least since 17.7.1943, a fact which was confirmed by Jageshwar Bani's suit of 1948, which was 1 based upon his non-possession.
5. The Magistrate should have proceeded J under Section 145, Criminal P.C. or Section 107, Criminal P.C. in accordance with the principles this Court has laid down in the case - Indar Bahadur Singh v. State of Vindhya Pradesh AIR 1952 Vindh P 67 (A). However, he thought fit to proceed in the same proceeding, under both the sections; this at all events is Inexpedient and likely to cause confusion. He allowed evidence to be adduced both on possession and on the parties' preparation for a fight; finally after making a local inspection he came to the finding that the two inner rooms were in the possession of Mathura Prasad's party, and the two outer rooms which are used or are usable as shops, were in the possession of Jageshwar Prasad. He ordered that this possession should be maintained and that the parties should enter into bonds not I do break peace. An application being filed by Mathura Prasad, who has throughout claimed that he was in exclusive possession the S.J. has made this reference.
6. Though I disapprove concurrent or joint proceedings under these sections, I do not consider such a course illegal. In this I follow the Calcutta ruling in - Nasiruddin v. Gofuruddin Mohamed AIR 1917 Cal 226 (1) (B) and - Abinash Chandra v. Lokenath Gani AIR 1919 Cal 465 (1)(C); in the former it was held that concurrent proceedings under these two sections were not illegal; in the latter it was held to be inconvenient to do so simultaneously. The scope of the two sections is quite different. Under Section 107, Criminal P.C. the person noticed has to show cause why In view of alleged overt acts by him he should not be bound down to keep peace for a period which should be less than one year. On the other hand the preliminary order under Section 145, Criminal P.C. is about a dispute about possession of the movable property which might lead to a breach of the peace. The notice is for the parties to appear with their evidence on possession at the time of the order or within two months immediately before. Therefore, I hold that this simultaneous or concurrent proceeding is most inadvisable and inexpedient.
7. In this case, however, the parties have been fighting for a long time, and clearly understood what exactly was meant under both the sections; each party adduced what it considered to be evidence of his actual exclusive possession over the entire house, and also showed cause that he was not going to break the peace because he was trying only to retain his actual possession. Therefore, highly Inexpedient as was the mixing up of the sections in the same proceeding, it did not in the present case create such confusion in the parties' minds, as would justify this Court's sending 'back the entire matter for decision in separate, 'consecutive proceedings.
8. Coming to the merits of dispute itself, mere allegations and oral statements of parties and their partisans are of no consequence in themselves. There has been some mixing up in the mind of the learned Magistrate of joint title and joint possession. It does happen, especially when the joint owners are not coparceners under the Hindu Law, that they are in actual joint possession also. If so, a proceeding under Section 145, Criminal P.C. will maintain this joint possession. It also happens very often, especially with coparceners in a Hindu joint family with joint title to all the properties, that the co-sharers are in actual exclusive possession, one of some, and another of other, individual items of joint property. This separate possession over parts, and joint title over whole, is always a provisional arrangement, to be replaced ultimately by partition by metes and bounds. In a suit for partition one of the questions would be whether this exclusive possession of each coparcener over some items is a provisional phase, subject to readjustment by a final partition, or is the result of such a partition by metes and bounds. But this question does not arise in a proceeding under Section 145, Criminal P.C. There the Magistrate has to find whether, over the individual item of property this or that coparcener is in exclusive actual possession, or they are in joint physical possession, always a question of fact, unconnected with the joint-ness of title. He must maintain this exclusive or joint possession as the case may be leaving the aggrieved coparcener to get a final reallotment in a partition suit. In 194B Jageshwar Bani wanted possession (a) without any qualification, (b) exclusive possession over this property. The Court observed that the family was still joint, but it did not give the plaintiff any possession exclusive or joint. It is nobody's case that after 1948, there was any alteration of status quo in regard to this matter.
9. The history of the litigation shows that, before the Durbar order of 1942 Mathura Bani and his full brothers were in possession of this house. As part of the arrangement for the sister-in-law's maintenance, the Durbar wanted it to be put in the possession of Jageshwar Prasad. This did not materialise. In fact as early as July 1943 we find Jageshwar Bani unsuccessfully trying to get possession. Even at that time he was not in possession either exclusively or jointly on any part of the house. If there was any doubt about it is clear by the suit in 1948. In 1948 he was not suing to get a declaration of joint title, and restoration of possession nor was he suing for the exclusive possession of part of the house He sued for possession, unqualified and therefore exclusive, over the entire house, but did not get any relief neither joint possession, nor exclusive possession over any part. The obvious course for him was to try if he could get a partition after showing that the present arrangement was provisional. Instead he has tried to disturb the exclusive possession of Mathura Bani and his brothers, which he complained of in 1943 and which again in 1948 he tacitly-acknowledged.
10. The learned Magistrate's decision is based on his observations during a local inspection of the house in dispute. As this Court has repeatedly pointed out, local inspections are fraught with dangerous pitfalls, and not unoften, lead to miscarriage of justice. A local inspection under Section 539B, Criminal P.C. should be made very sparingly indeed; it should not be the occasion either for collecting more evidence such as by asking all and sundry at the place, or for Court's own observations on controversial matters, which take the place of evidence. In the first case, the new materials get in without any cross-examination, and in the other the Court itself becomes a witness. Local inspection can be made only to 'understand the evidence', that is make note of patent and undisputed land-marks or other non-controversial physical facts, and to form a mental picture of a scene of a happening already located by the evidence. Here the Magistrate saw that the two inner rooms were locked; he thought that the locks had been put by Mathura Bani's party, obviously somebody told him so. The two outer rooms which could be used as shops were either not locked or were, at the time of the Magistrate's visits, in charge of Jageshwar Bani. He, therefore, came to the conclusion that the two inner rooms were at the time of the preliminary order in the possession of the former, and the two outer rooms in that of the latter. This is the most dangerous conclusion. In what circumstances the inner rooms were locked and in what circumstances Jageshwar Bani was in the outer rooms was not known to the Magistrate. We do not even know if this was a device at the time of his local inspection.
11. The result of the foregoing discussion is that the Magistrate's observation for one thing made him a witness, and for another did rot at all show the possession at the time of the preliminary order or within two months immediately preceding. The previous litigation does show that Jageshwar Prasad Bani had been out of possession of the entire house for a very long time. This is, therefore, a case in which the Magistrate's findings are against the weight of evidence and the earlier case of Jageshwar Bani himself; they, therefore, call for the Court's interference in revision.
12. I. therefore, hold that the order under Section 145, Criminal P.C. should be that Mathura Bani was in exclusive physical possession over the entirety of the house in dispute. The other party should not interfere with this until otherwise ordered by the civil Court. Whether or not the family is still joint is left open as it need not be decided in this case. Since a finding on possession is now given it is unnecessary at this stage to pass any order under Section 107, Criminal P.C. against either party. If, however, in spite of this order under Section 145, Criminal P.C. one party prepares to break the peace, the authorities concerned should deal with that, if necessary by formal proceedings under Section 107, Criminal P.C. or any other law applicable.
13. The reference is accepted in these terms.