1. One Sundarkuwarbai wife of Sajjan-singh filed a complaint against the petitioner and eight others before the Sub-Divisional Magistrate Badnagar, on 3-5-1952. In this complaint the petitioner alleged that she was in exclusive possession of the agricultural land Khata No. 89 and measuring about 472 Bighas and a Khala being Khata No. 69 measuring about 213 Bighas in the village Baloda Laknha. That the opposite party had on 27-4-1952, gone to these fields armed with lathis and carrying with them their Bakhars with a view to take wrongful possession of the fields; that on protest being made on behalf of the complainant they threatened to pick up a quarrel and use force. The. complainant also alleged that there was likelihood of breach of the peace, as a result of the activities of the opposite party and frayed that an order be Issued to the opposite party restraining them from unlawfully taking possession of the land in dispute and committing breach of the peace.
2. The learned Magistrate after recording the statement of the complainant passed a preliminary order on 7-5-1952 in which he also incorporated a direction that notice should be issued to the opposite party restraining them from entering into possession of the land in dispute pending final decision of the case and also not to commit breach of peace. Basanthkuwarbai the petitioner. filed a revision application against the order of the Magistrate dated the 7-5-1952 referred to above and contended that the Magistrate had under Section 145. Criminal P. C. no power to issue an order of interim injunction and that therefore the same deserved to be quashed. The learned Sessions Judge has agreed with the contention of the petitioner and has made a reference to this Court under Section 438, Criminal Procedure Code recommending that the order of the learned Magistrate should be set aside.
3. I have heard Mr. Pande for the petitioner and the Government Advocate. No one appeared for Sundarkuwarbai. The counsel for the petitioner advanced the same argument that was advanced on behalf of the petitioner before the Sessions Judge. The learned Government Advocate did not oppose the reference.
4. Section 145, Criminal Pro. Code, confers on A Magistrate a limited jurisdiction to deal with immovable property and that too if he is satisfied that there existed a dispute relating to it which was likely to cause breach of peace, In case a Magistrate thought that immediate action) was necessary to prevent breach of peace, he is empowered to attach the property which is subject-matter of dispute. No power, however, has been conferred upon a Magistrate by this section to issue an order of temporary injunction as has been done in this present case. It has been held in - 'Ram Ditta v. Dyal Mal' AIR 1921 Lah 205 (1) (A) that a Magistrate has no power to pass A temporary order, pending his final decision under Section 145, Criminal Procedure Code.
5. I accept the reference, set aside the order passed by the Magistrate and remand the case to the trial Court for proceeding further according to law.