Harnam Singh, J.
1. Biebambar Nath made an application under Section 145, Criminal P. C, in the Court of the Resident Magistrate, New Delhi, on 8i8t July 1948, complaining that he bad been forcibly and wrongfully dispossessed of the premises known as 'Express Motor Garage' situate in M. Block, Connaught Circus, Delhi, by Pandit Gainda Mai respondent. Paragraphs 3 and 4. of the application run:
(3) That according to the terms of the agreement between the parties all the accounts of the said shop were to be, and have been, operated solely by the petitioner who has been in possession of the said shop with its yard and the business carriad on there.
(4) That on 26th June 1948 the petitioner's son along with a Chowkidar was sitting in the shop premises when the respondent with several others came there and dragged them out and forcibly put his own look on the premises, The petitioner wished to take action for his forcible dispossession but the respondent induced him to stay his hands on the assurance that the matter would be settled and that the possession of the petitioner over the shop would be restored.
2. The Magistrate recorded the statement of Bishambar Nath on oath on 3lst July 1948. In that statement the applicant stated that there was a shop situate in Connaught Circus, M. Block, New Delhi, known by the name of 'Express Motor Garage' and that he was in possession of that shop. He added that he had invested a sum of us. 27,000 on that business and that the opposite party was his partner in that business. He continued and stated that he was in possession of the said shop and was managing the said shop himself and it was on 26th Jane 1948 that the respondent put his own lock on the aforesaid premises.
3. The Resident Magistrate, thereupon, acting under Section 145(1), Criminal P.C., passed the preliminary order which reads.
Whereas I am satisfied from the information placed before me by Bishambar Nath applicant that then exists a dispute between the parties, i. e., the applicant and Gainda Lai Sharma, likely to cause breach of peace, concerning the shop and garage in M. Block, Connaught Circus, New Delhi, in the limits of my jurisdiction, inasmuch as the respondent has forcibly dispossessed the applioant from the premises, that he has put in his own signboard 'Krishna Motor Garage' in place of the 'Express Motor Garage' already existing, and that he has done other untoward acts mentioned in the application, I consequently order the aforesaid parties to attend this Court on 14th August 1948 and to pat in written statements with respect to complaint in refpect of the actual possession of the shop.
4. It appears that Pandit Gainda Lal put in an application on 9th August 1948 praying inter alia for the quashing of proceedings under Section 145, Criminal P. C. He put in a written statement on 30th August 1948 and supported his pleas by his own affidavit.
5. Before coming to the merits of the case I may state that no evidence was recorded in the trial Court and that on the written statements of the parties the Resident Magistrate has passed an order on 21st September 1948 by which he has dismissed the application under Section 146, Criminal P. C., on the ground that Section 146, Criminal P. C. was not applicable to the facts of the case. He has, however, directed that the possession of the 'Express Motor Garage' should be restored to the parties, they being in joint possession. On the rinding that the application was not competent within the meaning Section 145, Criminal P. G., the Resident Magistrate bas no jurisdiction to direct that the possession of the 'Express Motor Garage' should be restored to the parties, they being in joint possession.
6. The sole question in these proceedinge is whether the applicant was in possession of the property in dispute within two months of the date of the preliminary order.
7. Mr. Balraj Tuli cites Wazir Chand v. Dr, Bawal Chand Fakir Chand A.I.R. (34) 1947 Lah. 227 : (48 Cr. L. J. 844) wherein Aebhru Bam J., held:
In a proceeding under Section 145, Criminal P. C. it is for the Magistrate to deoide which party was in possession at the date of the initial order, and if the finding of the Magistrate as to possession is based on evidence and there was material before him on which he could come to such a finding, he is the only Judge as to whether the material wag suffloient or not and if upon the material placed before him, he is satisfied that one of the parties is in possession his order cannot be deemed to be without jurisdiction, and cannot be interfered with by the High Court on revision.
He contends on the basis of Wazir Chand v. Dr. Bawal Chand Fakir Chand A.I.R. (34) 1947 Lab. 227 : (48 cr. L.J. 811), that inasmuch as the applicant was admittedly not in possession of the 'Express Motor Garage' on the date of the preliminary order his application under Section 145, Criminal P. C., was rightly dismissed. Now, the Magistrate has to deoide on enquiry and give a finding ab to whether any and which of the parties was in possession of the property in dispute at the date of the preliminary order. The exception to this rule is the case where one of the parties bad been forcibly and wrongfully dispossessed within two months of the date of the order, in which case the Magistrate has to treat such person as having been in possession at the date of the preliminary order, under the proviso to sub-a. (4) of Section 145. Except as provided by this proviso the Magistrate is not con-corned with previous possession or with the question as to how the possession was obtained. The facts of the cadge reported in Wasirchand v. Dr. Bawalchand Fakir Chand, A, I. R. (84) 1947 Lah. 227 : (48 Cr. L. J. 844), show that the applicant was in possession of the immovable property in dispute on the date of the preliminary order and, therefore, no question arose under the proviso to Sub-section (4).
8. In the present case, no evidence has been recorded at the trial and the decision of the Magistrate proceeds upon the finding that the applicant had acquired no interest in the premises on the basis of the partnership deed. As stated above Section 145, Criminal P. C., is concerned solely with actual possession and the question how the party came into possession is not the matter for enquiry in criminal proceedings under that section nor is the Magistrate concerned with rightful possession or is competent to deal with right to possession. That being be after having passed the preliminary order the question before the Magistrate was whether the applicant wa8 in possession of the premises on the date of the preliminary order or he could be treated as being in such possession of the said subject under the first proviso to Sub section (4).
9. Again, the Magistrate cannot decide the question of actual possession of the property in dispute on no evidence at all, or merely on the written statements of the parties. Sub-section (d) provides:
The Magistrate shall then, without reference to the merits of the claims of any such parties to a right to possess the subject of dispute, Peru the statements be pat in, hear the parties, receive all such evidence as may be produced by them respeotively, consider the efieet of such evidence, take such further evidence (if any) as he thinks necessary and, if possible, deoide whether any and which of the parties was at the date of the order before-mentioned in such possession of the said subject. Provided that, if it appears to the Magistrate that any party has within two mouths next before the date of sub. order been forcibly and wrongfully dispossessed, he may treat the party be dispossessed as if he had been in possession at such date.
10. It would appear that the procedure prescribed for an enquiry under sub-B. (4) of Section 145 has not been followed and the application baa been dismissed on the finding that the applicant had under the partnership deed acquired no in. tersest in the premises known as the ' Express Motor Garage.'
11. That being so, I allow Criminal Eevn. no, 617 of 1948 and remand the case for en. quiry and disposal in accordance with law. In view of my findings the connected Eevn. Petn. No. 441 of 1948 fails and is dismissed.
12. The result is that the case goes back to the Magistrate for disposal who shall receive all such evidence as may be produced by the parties, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and if possible deoide whether any and which of the parties was at the date of the preliminary order in possession of the subject of dispute or shall be treated as being in possession of the said subject on that date and in sage he deoides that the applicant should under the first proviso to Sub-section (4) be treated as being in possession of the said subject, be shall issue an order declaring the applicant to be entitled to possession thereof until evicted therefrom in due course of law and restore the possession of the immovable property in dispute to the applicant.
13. The parties are directed to appear before the Resident Magistrate on 2lst January 1949.