L.S. Mehta, J.
1. The brief facts of this case, it appears are that on October 4, 1971, Jawahar and others made an application in the Court of learned Sub-Divisional Magistrate. Alwar, stating therein that Khasras Nos. 721, 722 and 724, situate in village Sirmoli. District Alwar, as also some other land, situate in village Chikani, had been allotted to the applicants as also to Shiv Lal, Lila Ram and Ramji Lal. The parties had, by mutual agreement, divided the land in dispute. Khasras Nos. 721', 722 and 724 had fallen to the share of the petitioners and they had ever since been under their cultivatory possession and that the non-applicants Ramji Lal and others (party No. 2) had been trying to hold the land by use of force. It was, therefore, prayed that proceedings under Section 145, Criminal P. C.. be initiated, the disputed property be attached and a receiver should be appointed. Learned Sub-Divisional Magistrate, Alwar, forwarded that application to the Station House Officer, Sadar. Alwar, for inquiry and report. The Station House Officer act necessary inquiry made and eventually he submitted a report that a dispute existed in respect of the above land in between the two parties and that there was apprehension of breach of the peace. On receipt of the above report, the Sub-Divisional Magistrate, Alwar, passed a preliminary order on October 14, 1971 and directed the parties to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to Put in such documents or to adduce by putting in affidavits, the evidence of such persons, as they relied upon in support of such claims. Both the parties filed the written statements as also necessary documents and affidavits in support of their respective claim, Learned Sub-Divisional Magistrate, Alwar, by his order, dated May 3. 1972, expressed the opinion that he was unable to decide the possession of any party on the basis of the record. He therefore, attached the property and forwarded the record of the proceedings to the Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of the dispute at the date of the order as explained in Sub-section (4) of Section 145, Criminal P. C. Against that order a revision-petition was taken to the Court of learned Sessions Judge. Alwar, by party No. 2, Ramji Lal and others. The revision-petition was transferred to the Court of the Additional Sessions Judge. Alwar. Learned Additional Sessions Judge is of the opinion that the Sub-Divisional Magistrate has not discussed the evidence on the record, nor has he made careful evaluation of the documentary evidence available on the file. The Sub-Divisional Magistrate, according to him, has made no serious attempt towards the judicial analysis of the evidence of the parties to find out as to which of them was in the de facto possession of the property in dispute during the relevant period. Learned Sub-Divisional Magistrate, the Additional Sessions Judge, adds, has shirked his duty and has evaded to grapple with the issue before him. He, therefore, recommends that the order, dated May 3, 1972. of the Sub-Divisional Magistrate, Alwar, be directed to be quashed.
2. I have been taken through the order of the Sub-Divisional Magistrate along with the relevant documents. The Sub-Divisional Magistrate has based his finding only on the ground that deponent of the affidavits, filed on behalf of both the parties, are interested persons. The affidavits, according to him, are not in conformity with the documentary evidence. In the light of the conflicting evidence adduced by the two parties, the Sub-Divisional Magistrate adds, it was difficult for him to determine as to which of the parties was in possession of the land in dispute. A perusal of the order of the Sub-Divisional Magistrate as also the record of the case indicate that both the parties had adduced their respective evidence. They had produced not only affidavits but also documentary evidence in assertion of their entitlement to the property. The order does not show that the Sub-Divisional Magistrate had made any serious attempt to apply his mind to the facts of the case. In proceedings under Section 145, Criminal P. C., the Court should first make an endeavour to reach the conclusion on the merits of the case and find out as to which of the contesting parties was in the actual possession of the property under dispute. It is only when it finds the evidence equally balanced and is unable to make up its mind that it is absolved of the responsibility of coming to a positive conclusion. The order of the Sub-Divisional Magistrate does not show that he found the evidence equally balanced. In fact there is no reference or detailed discussion on the contents of the affidavits and the documents filed by both the parties. It is true that the order need not be very long, but at the same time it should be borne in mind that there must be sufficient material in the order to indicate to the revisional Court that the Sub-Divisional Magistrate had properly applied his mind, and had taken painstaking care to reach a reasonably accurate finding in the matter.
3. Here, I would also like to make a reference to Ram Bahal Singh v. Rane Bahadur Singh AIR 1924 Pat 804 : 25 Cri LJ 1295. In that case Foster. J., has laid down the law on the point thus:
It should be held as a very important principle in cases under Section 145, that a Magistrate should be extremely reluctant to attach the property in dispute. It is quite intelligible that he might be in & position to say with confidence that he was unable to satisfy himself as to the possession of the parties in cases where the land is jungle or waste. But where there is land admittedly subject year by year and season by season to cultivation, the Magistrate will be only admitting his own weakness if he states that he cannot come to a decision. He has before him two parties quite ready with information. The information may be true or false but it is his duty to collect information and sift it. After all the order under Section 146 is almost the same as an act of confiscation and therefore the Magistrate should naturally be reluctant to make use of that section.
4. This matter again received consideration of the Patna High Court in Nandkishore Singh v. Bigan Lohar AIR 1940 Pat 113 : 41 Cri LJ 101. In that case Rowland, J. held:
An order under Section 146 attaching the property is a desperate remedy for cases in which the Magistrate finds it quite impossible to choose between the conflicting evidence adduced by the two sides, if the Magistrate thinks that the evidence for the first party, weak though it might be. was preferable to the evidence for the second party, it will be the Magistrate's duty to give a decision in favour of the first party.
In Parmeshwar Din v. Sheo Moorat : AIR1952All918 Misra, J., stated the law as follows;-
Where the land is cultivated from year to year and season to season it would normally be possible for the Magistrate, either on the evidence on the record or on admission of further evidence, to ascertain as to which party was in possession at the relevant date, instead of admitting his weakness and relegating the parties to the Civil Court.
Thus, according to the Allahabad High Court the information which the party has furnished might be true or might be false but it is the duty of the Magistrate to sift it and not to take the easy way by having recourse to Section 146, Criminal P. C. There is another decision of the Allahabad High Court reported in Ayodhya Nath v. Ganga Prasad : AIR1953All751 . In that case his Lordship Beg, J. (as he then was) expressed the view that in proceedings under Section 145, Criminal P. C., the Magistrate should first make every attempt to come to a conclusion on the merits of the case with a view to ascertain which of the contesting parties is actually in possession. The order should contain sufficient material to indicate to the revisional Court that the Court of enquiry had applied its judicial mind and had made a genuine attempt to give a decision in the matter.
5. A Full Bench of this Court in Tikuda v. State also considered the implications of Sections 145 and 146, Criminal P. C., and it has been held:
It is clear from the provisions of Sub-section (4) of Section 145, Criminal P. C., that after the Magistrate has drawn up the preliminary order, it is his bounden duty to peruse the written statements of both the parties and also the affidavits and other evidence which has come on the record. He cannot proceed under Section 146D, Criminal P. C., unless he is of opinion that none of the Parties was in possession of the disputed property on the date of the preliminary order or unless he is unable to decide as to which of them was in such possession of the subject of dispute on the date of the preliminary order.
It was thus necessary for the Sub-Divisional Magistrate, Alwar, to weigh and sift the affidavits and other evidence on the record, adduced by both the parties and then arrive at a positive finding as to which of the parties was in actual possession of the property. If after so doing it was impossible for him to decide the question of actual possession, he could have made an order of attachment and referred the dispute to a. Civil Court under Section 146, Criminal P. C. As has been stated above, far from showing that the evidence of the two Parties was judicially balanced, the order of the Sub-Divisional Magistrate, Alwar, shows that he resorted to easy course under Section 146, Criminal P. C.. without making a genuine attempt to bring judicial consideration to bear on the question of actual possession in the light of the material before him. There are no doubt cases, for example, disputes relating to ladden or jungle lands or other immovable property where the evidence of possession may be shrouded in mystery and the contrivance of attachment may not occasion much hardship. The present case is not of such a nature. The impugned order of the Sub-Divisional Magistrate, under the circumstances, is, therefore, not sustainable.
5. In the result, this reference is accepted, the order dated May 3. 1972, of the Sub-Divisional Magistrate, Alwar, is set aside and the case is remanded to him for its disposal in accordance with law and in the light of the observation made above.