1. These are two petitions for revision of orders passed by a learned Magistrate restraining the petitioners from entering upon two disputed plots of land. The Magistrate purported to act under Section 144 of the Code of Criminal Procedure.
2. It seems clear that the disputed land had been held by the opposite party and it is admitted by the petitioners that it was at one time held by the opposite party as a service tenure-holder. According to the opposite party it has been held fey his ancestors for about hundred years or so.
3. According to the petitioners the opposite party ceased to perform the services required and abandoned the property. He left the service of the Zamitidar and neither cultivated nor possessed the land for some time. According to the petitioners the 'zamindar then settled the land with them and they entered into possession and ploughed the land and later sowed paddy on it.
4. In the month of August the opposite party seems to have made a complaint and an application was made that action should be taken under Section 107 of the Code of Criminal Procedure against the petitioners. The police were asked to make a report and it seems tolerably clear that the disputed plots at that time had paddy growing upon them, and it is clear from the order of the learned Magistrate in this case that paddy was undoubtedly sown by the petitioners.
5. The matter came before Mr. Bhatta charjee who was the Sub-Divisional Officer, He passed an order on August, 28, 1948, and from that order it is clear that the petitioners were in possession and that the opposite party claimed the plots as his. The Sub-Divisional Officer was of opinion that there was no immediate danger of a breach of the peace but he thought that a breach of the peace might occur at harvest time. He eventually issued notice on both parties to appear in his court and file written statement in support of their respective claims.
6. Later after filing their claims the matter came before Mr. Sinha, as it appears that Mr. Bhattacharjee had been transferred. By an order dated October 23, 1948, Mr. Sinha directed an injunction to issue forbidding the petitioners from entering upon the disputed plots and calling upon them to show cause why such an injunction should not be made absolute.
7. It is clear from the order of Mr. Sinha that in his view the petitioners were in pos-session. He starts off in the order by holding that the disputed land is a chakran land which had been in possession of the opposite party for a long time. He then assumes that the possession taken by the petitioners was forcible possession and assumes that if the land was settled by the zamindar with the petitioners that was all; underhand and done to defeat the plantiff's just claims.
8. I would like to point out that the learned Magistrate was not concerned with any questions as to the title to this land. Sections 144 and 145 of the Code of Criminal Procedure deal with possession and possession only, and they are intended to protect persons in possession and to prevent breaches of the peace. The learned Magistrate acting under these sections has nothing whatsoever to do with the title to the land.
9. In these two cases it is clear that the petitioners were in possession. They had sown the paddy crop which was about ready for harvesting. 'That being so how could the learned Magistrate issue an injunction against them restraining them from entering upon the land? If they were in wrongful possession then the opposite party had other remedies. His remedy was not by way of an injunction under Section 144 of the Code of Criminal Procedure. That form of injunction could only be issued to protect existing possession and not 'to oust a person in possession from possession. The effect of the order of the learned Magistrate is to evict the petitioners from possession of these plots. Even if they had no right to possession the learned Magistrate could not evict them by an order of eviction or indirectly by an injunction of this kind. The learned Magistrate failed to appreciate the scope of these sections and his order are not warranted and must be set aside. We of course express no opinion upon the merits of the dispute. We merely content ourselves with saying that the orders made are clearly illegal and cannot be sustained.
10. In the result, therefore, these petitions are allowed and the orders of the learned Magistrate granting an injunction under Section 144 of the Code of Criminal Procedure are set aside. The rules are accordingly made absolute.
S.R. Das, J.
11. I agree.