1. This revision petition is by the unsuccessful first party in a proceeding under Section 145, Cr. P. C.
2. The property in dispute originally belonged to one Mallik Makbul who died without any issue. Petitioner 2, Sarifin Bibi, claims to be the widow of Mallik Makbul. But the opposite party alleged that she was the concubine and not the legally wedded wife of Mallik Makbul. Petitioner 1 Mallik Rafiq is a minor aged about ten years. He is the own brother of opposite party Mallik Abdul Hakim and Mallik Khauzar and all the three are the sons of one Mallik Namdar who was a brother of Mallik Makbul. The petitioners' case appeared to be that Mallik Rafiq was brought up by Mallik Makbul as his own son and after Makbul's death his property was possessed by his widow, namely, Sarifin Bibi and Rafiq. The opposite party, however, stated that after Makbul's death they came into possession of his property being his nephews and that they continued in possession till the attachment of the property in the proceeding under Section 145, Cr. P. C.
3. Both parties led evidence on the question of possession. The trial Court disbelieved the evidence of the first party's witnesses and held that the second party were in possession of the disputed property. So far as his finding about the first party not being in possession of the disputed property is concerned, I see no ground for interference as it is a pure finding of fact.
4. But its finding that the second party were in possession is based on a failure to carefully study the evidence led by the second party's witnesses themselves and also the statement made by the second party in their show-cause petition. In that petition para 5 is to the following effect.
'Mallik Makbul unka chalanti achalanti sampatire ambhe dutiya pakhya o prathama pakhya Mallik Rafiq war as sutre malik dakhalkar achhu.'
(We second party and first party Mallik Rafiq as heirs of Mallik Makbul are in possession of his movable and immovable property).
The second party's case as put forward at the commencement of the proceeding under Section 145, Cr. P. C., was that petitioner Raliq was living joint with them and that all the three brothers namely, Mallik Rafiq, Mallik Abdul. Hakim and Mallik Khauzar succeeded to the property of Makbul as his heirs and were in possession of the same. No specific case of exclusive possession of Makbul's property by the second party was put forward in that petition. Again while giving evidence in Court the second party's witness Mir Idrice (witness No. 2) stated even in examination-in-chief as follows :
'Before attachment both parties were living jointly and were possessing jointly and enjoying the usufruct of the disputed lands.'
In cross-examination also he admitted that Rafiq was living jointly with his brothers. It is true that the other witnesses of the second party have attempted to show that the disputed property was possessed exclusively by the second party and not jointly by the second party and the first party. But their evidence can hardly be believed in view of the written statement filed by the second party mentioned above and in view of the categorical statement about joint possession made by Mir Idrice, the second witness of the second party. Moreover, Mallik Abdul Hakim, one of the members of the second party gave prevaricating statements when cross-examined on the question of joint-ness or separation. The trying Magistrate noted in the deposition of this witness.
'The witness is not answering the question if Rafiq and Sarifin Bibi are living jointly or not. The witness is asked four or five times and he repeats that they are living with Ibrahim.'
The reluctance of this witness to admit the jointness with the first party is quite understandable. Apparently realising that his own show-cause petition may go against him he has attempted to prevaricate. But in view cf the clear evidence of Mir Idrice and the admitted fact that Rafiq of the first party is the own brother of the second party and is a minor the reasonable inference is that the property is in the joint possession of both parties. The learned Magistrate's finding to the effect that the second party were in exclusive possession of the disputed property is due to his failure to scrutinise the evidence with great care and also to scrutinise the written statements filed by both parties.
5. Mr. Mohanti on behalf of the petitioners thereupon urged that where the properties were found to be in the joint possession of both parties the proceeding under Section 145, Cr. P. C., ought to have been dropped. Doubtless if both parties had asserted that the disputed property was in their joint possession a proceeding under Section 145, Cr. P. C., may not lie. But in the present case, the first party came forward with a specific case that they alone were in exclusive possession of the disputed property. The second party on the other hand contended that the property was in the joint possession of one member of the first party (Mallik Rafiq) and all the members of the second party. It was held in -- 'Nandkeshwar Prasad v. Sita Saran', AIR 1932 Pat 366 (A) that where one set cf persons claim exclusive possession of some lands whereas another set of persons claim to be in joint possession along with them a proceeding under Section 145, Cr. P. C., would lie (see also -- 'Sheoprasad Shriram v. Govind Ram Hardit Ram', AIR 1940 Nag 265 (B) and -- 'Zafar Ahsan v. Jugeshwar Bux', AIR 1940 Pat 135 (C). I, therefore, see no defect in the exercise of jurisdiction by the learned Magistrate in initiating and continuing the proceeding under Section 145, Cr. P. C.
6. In view cf the finding that the disputed property is in joint possession of both parties, the main question for consideration is what should be the appropriate order to be passed. It is doubtless open to this Court to cancel the order passed by the trial Court relegating the parties to the same position in which they were prior to the commencement of the proceeding under Section 145, Cr. P. C. -- 'Kinu Mondal v. Baul Mondal', 23 Cal W N 1051 (D), -- 'Tarujan Bibi v. Asamuddi Bepari', 4 Cal WN 426 (E) & -- 'Kodanmal Bassarmal v. Emperor', AIR 1945 Sind 110 (F) are sufficient authorities for passing such an order.
7. But there is also sufficient authority to show that the disputed property may be attached under Section 146, Cr. P. C. In -- 'AIR 1932 Pat 366' (A) the trying Magistrate attached the property under Section 146, Cr. P. C., and the High Court on a reference by the Sessions Judge refused to interfere with the order. That was a case cf joint possession. The earlier Patna decisions to the contrary reported in -- 'Nand Kishore v Kalika Missir', AIR 1923 Pat 546 (G) and -- 'Sham Lal v. Rajendra Lal', AIR 1920 Pat 513 (H) (which were decisions of single Judges) may be said to have been overruled by the later Division Bench decision. In a later Allahabad decision reported in -- 'Chiranjilal v. Mahadeo Pd.', AIR 1932 All 683 (I) it was held that if the finding was that both parties were in joint possession of a piece of land it was a case where the Magistrate cannot decide which of them was in exclusive possession and that an order under Section 146 (1), Cr. P. C., may properly be passed. The words 'unable to satisfy himself as to which of them was in possession' occurring in Sub-section (1) of Section 146 were construed to include a case like the present one where a Court cannot decide as to which party was in exclusive possession though it could reasonably hold that both parties were in joint possession. I, therefore, see no illegality in directing the attachment of the disputed property under Section 146, Cr. P. C. in the present case.
8. In deciding which of the aforesaid two courses should be adopted I should not overlook the primary object of a proceeding under Section 145, Cr. P. C., namely, prevention of breach of peace. After the death of the previous owner (Mallik Makbul) his nephews and Sarifin Bibi are apparently quarrelling over their respective rights to his property. Sarifin Bibi's status as his married wife is also under challenge. The police reported apprehension of breach of peace and the learned Magistrate thereupon drew up the proceeding under Section 145 and also attached the disputed property. The very fact that the trying Magistrate passed a final order under Section 145, Cr. P. C., indicates that the apprehension of breach of peace still continues. Under these circumstances if the lower Court's order is merely cancelled and the parties are relegated to the position which they occupied prior to the commencement of the proceeding there may be recrudescence of the trouble. The better course therefore seems to be to attach the property in dispute under Section 146, Cr. P. C. leaving it to the parties to fight out their rights in the Civil Court. If, however, the parties come to terms and thereby remove any further apprehension of breach of peace it is always open to the District Magistrate exercising powers under the proviso to Sub-section (1) of Section 146, Cr. P. C. to withdraw the attachment.
9. I would, therefore, set aside the order of the Magistrate declaring the second party to be entitled to possession of the disputed property and direct that the said property should be kept under attachment under Sub-section (1) of Section 146, Cr. P. C., until a competent Court has determined the rights of the parties thereto or the person entitled to possession thereof. The Magistrate concerned may take further steps for looking after the property under Sub-section (2) of Section 146, Cr. P. C.
10. I should invite the special attention of the trying Magistrate and the District Magistrate to the unsatisfactory way in which the papers have been arranged in the record in contravention of Chapter I-B of Part III at page 52 of the G. R. & C. O. (Criminal) Vol. I. The list of exhibits has not been carefully prepared nor has it been kept at the proper place. The show-cause petition of the second party has been kept in 'B' file along with Vokalatnama and unimportant papers. The District Magistrate may call for the explanation of the trying Magistrate and the Bench-clerk concerned for the unsatisfactory arrangement of the record and take such disciplinary action as he considers advisable.