B.P. Beri, J.
1. This is a report under Section 438 of the Code of Criminal Procedure made by the District Magistrate, Alwar, recommending that the order of the Sub-Divisional Magistrate dated 28th July, 1960, whereby the Magistrate ordered under Section 145 of the Code of Criminal Procedure the restoration of possession of certain lands to Gokulchand, be quashed.
2. The circumstances out of which the present controversy arises are that on 24th July, 1959, an application was made by the Station House Officer, Police Station, Kathumar under Section 107 of the Code of Criminal Procedure against 8 persons, namely, Heera Singh, Ganpat, Ganeshee, Kulfa, Kallu Dashrath, Shivlal and Hurmath. It was alleged in this application that in Tehsil Laxmangarh Khasra Nos. 1711, 343, 395, 478 and 479 measuring 16 Bighas which was evacuee property was allotted to Gokalchand by the Managing Officer, Alwar, by his order dated 25th June, 1959, Possession of this 16 Bighas of land was given to Gokul hand on 28th June 1959, in the presence of Quanango and atwar Halka Tassi. On 16th July, 1959, Heera Singh and party forcibly ploughed field No. 1711. On 17th July, 1959, when Gokul Chand went to plough his land then Heerasing and party obstructed him, and were bent upon creating a reach of the peace. The Sub-Divisional Magistrate on his application under Section 107 of the Code of Criminal Procedure converted the proceedings under Section 145 of the Code and asked the parties to put in their claims, issue a preliminary order, attached 16 Bighas cf land and appointed Tehsildar Kathumar to be the Receiver of the land in dispute.
Both the parties presented their respective written statements. Heerasingh and others said that they have been in possession of the land in dispute for a long time an they were in possession thereof on the date of the preliminary order. Gokalchand on the other hand pleaded that by the Managing Officer's Order No. 9320 dated 25th June, 1959. the Naib Tehsildar Kathumar directed that possession of the disputed land be given to him and the Naib Tehsildar also gave him a patta -- a formal deed of lease. On 23th June, 1959. the Patwari Girdawar and Quanango went on the spot and delivered possession of the land In question to him. Seventeen or eighteen days thereafter when he went to cultivate the land then the party of Heera Singh were bent upon creating a breach of the peace and obstructed Gokalchand from cultivating the land.
On an examination of the documentary evidence the learned Sub-Divisional Magistrate declared the possession of Gokalchand of the land in dispute and further ordered that the possession be restored until he was evicted in due course of law. He further ordered that whatever amount of money was realised during the course of Receivership may be given to Gokalchand after.. deducting necessary charges. The learned Magistrate repudiated the contention urged on behalf of Heerasingh and party that no proceedings under Section 145 of the Code of Criminal Procedure lay in respect of the land in dispute as it was an evacuee property. The case of Salahuddin Ahmad v; Janki Mahton. : AIR1957Pat549 has been discussed by the learned Magistrate and he has respectfully disagreed with the said decision.
3. Heerasingh and others preferred an application by way of revision before the District Magistrate, Alwar. Largely relying on the decision of the Patna case, : AIR1957Pat549 , the learned District Magistrate has recommended that the order of the Sub-Divisional Magistrate be set aside as-he had no jurisdiction to exercise his powers under Section 145 of the Code of Criminal Procedure in respect of-the land which was admittedly an evacuee property.
4. I have heard Mr. Gurtu, the learned Assistant Government Advocate. None of the parties are represented before me. Mr. Gurtu does not suoport the reference.
5. Since the recommendation of the District Magistrate is based on the Patna decision, : AIR1957Pat549 , it is. proper to examine it closely.
The facts of that case were that S and M were brothers. They possessed certain properties jointly. Half share of M's property was declared evacuee property. The half share of M and the other half share of S became the subject-matter of a proceedings under Section 145. The learned Judges have held that the property being evacuee property no proceedings under Section 146, Cr. P. C. lay.
6. To appreciate the reasoning of their Lordships in the Patna case, : AIR1957Pat549 , it may be profitable to examine the relevant sections of the Evacuee Property Act. Section 4 reads:
The provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding any thing Inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law.
7. Section 7 of the Evacuee Property provides that the Custodian may after notice declare any property to be evacuee property. Material portion of Section 8 reads:
Section 8.(1): Any property declared to be evacuee property under Section 7 shall be deemed to have vested in the Custodian for the State,
4. Where after any evacuee property has vested in the Custodian any person is in possession thereof, he shall be deemed to be holding on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any other person duly authorised by him in this behalf.
8. The Patna case, : AIR1957Pat549 , proceeds on the following reasoning. A property declared as evacuee property under Section 7 vests under Section 8 (1) in the Custodian; whoever be in possession, under Section 8 (4) he holds such possession on behalf of the Custodian, Therefore an order under Section 145 declaring and restoring possession in any party other than the Custodian brings Section 145, Cr. P. C. into conflict with Sections 8 (1) and (4) of the Evacuee Property Act. In view of Section 4, the Evacuee Property Act prevails and therefore no proceedings under Section 145 can be permitted to continue in respect) of the evacuee property.
9. With great respect to the learned Judges who decided the Patna case, : AIR1957Pat549 , I am unable to see any conflict between Sections 8 (1) and (4) of the Evacuee Property Act and Section 145 (6) of the Code of Criminal Procedure so as to attract the applicability of the overriding provisions of Section 4 of the Evacuee Property Act. The office of Section 145 is to prevent a threatened breach of the peace arising from a dispute relating to land or water or boundaries thereof. It is a summary process and has no pretensions to decide questions of title. The question of possession which it decides, for the time being and subject to final determination, is actual possession. If in a dispute between 'A' and 'B' in respect of an evacuee property a Criminal Court decides that the possession is declared to be that of 'B' he shall be deemed to holding possession on behalf of the Custodian until evicted therefrom in due course of law. I do not see how any declaration of possession under Section 145 (6) is inconsistent with the Evacuee Property Act. The learned Judges observe:--
It seems to me that having regard to the provisions of Sub-section (4) of Section 8 of the Evacuee Property Act even if the opposite party 81 in number, be found to be in possession of this property the possession must be deemed to be with the Custodian who ought to be held to be in possession. In this view of the matter to proceed under Section 145, Cr. P, C. with respect to these properties would be inconsistent with the provisions of the Evacuee Property Act.' (10) What Section 8(1) envisages is a deemed vesting of an evacuee property in the Custodian after its declaration under Section 7 as evacuee property. Section 8(4) clearly envisages cases where actual possession may be with other persons and, therefore, It declares that such possession shall be on behalf of the Custodian. In the ultimate result the combined effect of these two provisions is that the interest in an evacuee property will vest in the Custodian and whoever be in possession of such property shall Hold it on behalf of the Custodian. Whatever be the order under Section 145 (6) and whoever is declared to be in actual possession in view of Section 8 (4) he will do so on behalf of the Custodian. In my opinion, there is no conflict between the provisions of section 145 and those of the Evacuee Property Act.
11. In the case before me it is the managing officer entitled under the Displaced Persons (Compensation and Re-, habilitation) Act (No. XLIV of 1954) who has given the possession of the property in dispute to Gokalchand and he holds it on behalf of the authorities under the Displaced Persons Act. I am unable to see any conflict whatever between the possession of the Custodian and the applicant Gokalchand.
12. Even if any conflict of any kind may arise the supreme necessity of public tranquility cannot be permitted to be over-ridden by the technicality of law and a harmonious interpretation between the provisions of Section 145 and those of the Evacuee Property Act has to be preferred. The preventive jurisdiction created under Section 145, Cr. P. C. merely aims at a tentative adjudication, and is subject: to a final determination.
13. In result I see no conflict between the order of the Magistrate and the provisions of the Evacuee Property Act and the reference of the learned Magistrate is rejected.