R.K. Das, J.
1. The petitioner is the Second party in a proceeding under Section 145 Cr. P. C. The dispute relates to 8 90 acres of Jagir lands in the Ex state of Khandapara given to one Satyabadi Champati Ray for performance of obsequial duties after the death of the Raja of Khandapara. Satyabadi had two sons, Bairagi and Laxman. The petitioner is the daughter of Laxman and the opposite party is the son of Bairagi. After the death of Satyabadi, Bairagi and Laxman amicably divided the property and both were recorded as holders of the said Jagir. After merge! of the State, the petitioner-second party made an application to be recorded as an occupancy tenant in respect of the share of her father Laxman and by order dated 16-12-1964 in Jagir Case No. 192/49-50, her name was so recorded in place of her father, and after notice she was paying rent as an occupancy tenant. On 23-12-1961, another brother of the opposite party filed a suit (O. S. 233/61) for bare declaration of title to the suit property without asking for delivery of possession. During the pendency of the said suit he also made a prayer for an injunction against the petitioner which was rejected on 13-2-1961 on the ground that the suit was for mere declaration of title, and the court fees had been paid for that purpose only.
On 7-11-62 the first party also initiated a proceeding under Section 145 Cr. P. C. and the preliminary order was passed on 28-11-62 directing a receiver to be appointed and to take over possession of the property. The Civil Court decreed the suit on 9-7-1963 in favour of the first party and on 18-11-63 the learned Magistrate dropped the 145 proceedings and directed delivery of possession to the 1st party in accordance with the decree of the Civil Court declaring title in his favour. On appeal by the present petitioner second party (Title Appeal No. 69/63) the decision of the trial court was reversed and the plaintiff's suit in O. S. 238/61 was dismissed.
2. In this application Mr. Mohanty challenged the order of the Magistrate passed on 18-11-63 directing delivery of possession to the 1st party while the Civil suit was still pending before the Appellate Court and according to him during the pendency of a civil suit a proceeding under Section 145 is wholly misconceived. I think this contention of Mr. Mohanty is not without any force.
3. It is well settled by authorities that while a civil suit is pending proceeding under Section 145, Cr. P. C. on the same subject-matter is entirely misconceived. See Champabati Dibva v. State, 25 Cut LT 557. In view of the admission of the opposite party in their petition dated 7-11-1962 that the petitioner was in possession of the suit property, the learned Magistrate should not have given delivery of possession of the property to the opposite party. Moreover, in a proceeding under Section 145, the Magistrate is called upon only to decide the fact of actual possession, irrespective of the claim of title to the property, on the date of the preliminary order within two months prior to that. No doubt he can drop the proceedings if there is no further apprehension of the breach of peace. But in the present case nothing of the sort was done. The learned Magistrate did not go into the affidavits filed by the parties, nor does he appear to have examined the merits of the respective contentions to find out as to which of the parties was in actual possession, nor has he given any finding that there was no further apprehension of breach of the peace. He merely relied upon the decree of the Civil Court and directed delivery of possession in favour of the opposite party.
As stated above, the decree of the Civil Court was in a suit merely for declaration of title and the suit had nothing to do with respect to the possession of the property, though the said decree was set aside by the appellate court at a later date. It is stated by Mr. Misra, learned counsel for the opposite party that a second appeal is pending against the above appellate decision, but even if the second appeal succeeds, that would not be of any help as the suit itself is confined only to the declaration of title.
4. Section 145(6) Cr. P.C . provides that the Magistrate should come to a finding of possession and declare the successful party entitled to remain in such possession until evicted therefrom in due course of law The mere declaration of title does not amount to an order of eviction further, it was not open to the Magistrate to direct the disputed property to be delivered to the 1st party without proper enquiry.
In a case reported in Sharfuddin v. Sirajuddin, 27 Cut LT 23: (AIR 1961 Orissa 120) itwas held that when an ancillary order of the'Magistrate subsequent to the date of droppingthe proceedings under Section 145, Cr. P. C. has theeffect of putting a party into possession of thedisputed property without proper enquiry andwithout finding as to whether a party hasestablished his possession in such a proceeding, it would amount to an evasion of the provisions of the Code. In view of this legal position, the decision of the learned Magistratemust be set aside. The learned Magistrate isdirected to examine the affidavits filed by theparties and come to a specific finding as to whowas in possession of the disputed property andto dispose of the case in accordance with law.He may also pass such interim orders as maybe necessary for the preservation of the property and maintenance of peace.