S. Acharya, J.
1. The second party in the Court below has preferred this revision against the order dated 18-10-73 passed by a Magistrate, First Class (Executive) at Rayagada in a proceeding under Section 145, Cr. P. C, 1898.
2. The impugned order is as follows:
The first party is present. The second party is absent on call. Perused the judgment of the Civil Court filed by the first party in M.S. 8/70 and M.A. 6/71 wherein the Civil Court has held that the first paily is the tenant of the disputed plot. Hence the proceeding is dropped. The attached land be released and delivered to the first party by 30-10-73 positively along with the crops. Direct the receiver of crops accordingly.
From the impugned order it is quite evident that the Magistrate has dropped the proceeding under Section 145, Cr.P.C. and at the same time he has ordered the land under attachment to be delivered to the first party, without deciding the fact as to which of the parties was in possession of the said land on the date of the preliminary order or within two months next before the said date, as required under the said section.
3. Mr. Y. S. N. Murty, learned counsel for the petitioners, (second party in the Court below), has urged that the impugned order is patently illegal as the Court below while dropping the proceeding has directed delivery of the attached land to the first party (opposite parties in this revision) without deciding as to which of the parties was in possession of the said land at the relevant time as required under Section 145, Cr.P.C.. Mr. Murty also contends that the learned Magistrate has completely misconstrued the scope, purview and ambit of the decisions in Money Suit No. 8/70 and Money Appeal No. 6/71. According to Mr. Murty there is nothing in the said two decisions to indicate that the vfirst party was a tenant in respect of the disputed land at or about the time of the institution of the proceeding under Section 145, Cr.P.C. From a copy of the judgment in Money Suit No. 8/70 shown to me by Mr, Y. S. N. Murty I find that the said suit was filed by the petitioners (second party in the Court below) on the allegation that the defendant in the suit, i.e. the first party in the Section 145 proceeding and opposite parties in this revision, had purchased the third cutting of the sugarcane crop standing on the plaintiff's land for a sum of Rs. 4000/- on 15-4-69 under a crop sale agreement in which it was agreed between the parties that the defendant in the suit would harvest the third cutting for the year 1969-70. The plaintiff further alleged that on 15-4-G9 the defendant paid only Rs. 2000/- undertaking to pay the balance of Rs. 2000/- on 1-7-69. The plaintiff filed the suit for the realisation of the balance amount as that amount was not paid in accordance with the agreement between the parties. In August, 1970 the opposite party (the defendant in the suit) filed an application under Section 144 Cr.P.C. before the Sub-Divisional Officer, Rayugada against the petitioners complaining therein that their possession of the disputed land was being interfered with by the second party. After a few dates the Court below converted the said proceeding into one under Section 145, Cr.P.C. and passed the preliminary order under Section 145(I) Cr. P. C, on 11-9-70. Thereafter the proceeding remained pending in the Court below and was disposed of on 18-10-73 by the impugned order.
4. On a perusal of the copy of the plaint in Money Suit No, 8/70 and the judgments in Money Suit No. 8/70 and Money Appeal No. 6/71 shown to me by Mr. Y. S, N. Murty the correctness of which was not challenged by Mr. C. V. Murty, the learned counsel for the opposite party, I am constrained to mention that the learned Magistrate has not taken care to carefully peruse the said two judgments. He has not bestowed care to know the full scope, ambit and purview of the matter under contest in that civil suit. Without perusing the judgments with due care and attention, the Court below was not justified in arriving at the finding, by one stroke of pen, that 'the Civil Court has held that the first party was a tenant of the disputed plot.'
5. The learned Magistrate has also not given a finding as to whether the first party was a tenant in respect of the lands in question at the proper time mentioned under Section 145, Cr.P.C. which only would have enabled the Court to pass a final order under the said section declaring the possession of the said land in favour of the first party and directing delivery thereof in favour of that party. Without arriving at such a finding, as required under Section 145, Cr. P, C, the Court below was not legally justified to direct that the attached property be delivered to the first party. According to the provisions of Section 145, Cr.P.C. the attached property can be delivered to a parly who has been able to prove in the proceeding that he was in possession of the said property on the date of the passing of the preliminary order or within two months next preceding that date. So long a party is not able to successfully prove that fact and the Court does not categorically arrive at such a finding in favour of a particular party, the Court is not competent to direct delivery of the said property in favour of any of the parties to the proceeding. In case the Court finds that none of the parties was then in such possession or it is not able to decide as to which of the two parties was in possession of the property at the aforesaid date, it is for the Court to refer the matter to the Civil Court under Section 146, Cr.P.C. In this case the Magistrate has not passed a final order as required under Sub-section (6) of Section 145, Cr. P. C, on giving a cate- gorical finding of possession as required under the law. On the other hand he has dropped the proceeding and while doing so ho lias directed delivery of possession of the attached property in favour of one of the parties without forbidding all disturbance to such possession until evicted therefrom in due course of law. Moreover, while dropping the proceeding he has not cared to examine if there was at that time no apprehension of breach of the peace due to disputes between the parties relating to tho land in question.
6. On the above considerations I find that the impugned order is bad in law and is liable to be set aside, and is hereby set aside. The property in question, as I find from the order dated 13-12-73 of this Court, is in charge of a receiver. As the order dropping the proceeding is set aside, the said proceeding under Section 145, Cr.P.C. should be deemed to be still pending in the Court below in all its aspects. The Court below therefore should proceed to decide the matter afresh and dispose of the same in accordance with law, keeping in view the observations made above in this judgment.
7. In the result, the criminal revision is allowed, the impugned order is set aside and the case is remanded to the Court below for fresh disposal in accordance with law and the observations made above.