T.P. Mukherji, J.
1. The second party to a proceeding under Section 145 of the Code of Criminal Procedure obtained this Rule against the order of, the learned Magistrate in the proceeding declaring possession with the first party and restraining the second party men from interfering with that possession except in due course of law. Opposite party No. 1 as the first party applied to a Magistrate holding a camp Court at Kakdwip that he was in possession of certain lands as bhagidar, that the present petitioners have raised a dispute over that land and have been trying forcibly to harvest the standing crop with the help of lathials. Preventive action under Section 144 of the Code of Criminal Procedure was prayed for. It was further stated that over this dispute, the first party had earlier initiated a proceeding under Section 144 of the Code of Criminal Procedure in a case which was numbered M 18 of 1967 and that a restraint order under the section had been made in that case against the present petitioners.
2. The learned Magistrate in his order on this petition mentioned that he had seen a report of enquiry and the order made by him in cases Nos. M 13 of 1967 and M 207 of 1967. He found that an order of injunction under Section 144 of the Code of Criminal Procedure had been passed against .the second patty to the proceeding during the period of cultivation. As causing of an enquiry will entail delay and as there was a grave and serious apprehension of a breach of the peace according to the learned Magistrate, he issued an order under Section 144 of the Criminal P. C. upon the present petitioners restraining them from going upon the land in dispute.
3. On a subsequent date, the present petitioners appeared and filed an application and the proceeding under Section 144 was converted into one under Section 145 of the Code, The learned Magistrate at the tame time appointed a caretaker receiver in respect of the standing crop. Both parties were directed to file their written statements, affidavits and documents in support of their respective claims and, on a consideration of these, the learned Magistrate found possession with the first party who is the opposite party No. 1 in the present rule. It is against this order that the rule is directed.
4. Mr. Haider appearing in support of the rule contends that there were no materials whatsoever before' the learned Magistrate to satisfy him about the necessity for action under Section 144 of the Code and that if there were no such materials which could have provided the necessary satisfaction in that regard, the proceeding that was drawn up was without jurisdiction. The second objection to the proceeding is that the dispute as to the share of the paddy grown on the land concerned is not a dispute as to 'land and water' which might justify a proceeding. The third contention is that the affidavits filed by the respective parties were never considered by the learned Magistrate in coming to his finding on the question of possession and, lastly, that a suit over the land in dispute being pending in the civil Court between the parties, a proceeding under Section 144 of the Criminal P. C. was unwarranted and it was improper of the learned Magistrate to have drawn up the proceeding.
5. The foundation for a proceeding under Section 144 of the Criminal P. C. is the opinion of the Magistrate concerned that there is sufficient ground for a proceeding under the section and his satisfaction that the direction that might be given was likely to prevent amongst others disturbance of the public tranquillity. The opinion and the satisfaction must be arrived at on sufficient materials and it is this opinion and satisfaction arrived at on the basis of sufficient materials which gives the Magistrate the necessary jurisdiction for the purpose of a proceeding under the section. In the present case, the learned Magistrate has stated in his -order dated November 18, 1067, that there is grave and serious apprehension of a breach of the peace, This apprehension was no doubt given out in the petition that was filed. The petition is unstamped and is not a sworn petition. The petitioner was not examined by the learned Magistrate. Nobody took the responsibility for the statements that were made therein. The learned Magistrate did not direct an enquiry into the allegations on the ground that it will entail delay and whatever satisfaction be arrived at was arrived at by him on the basis of the report of a previous enquiry and the order made by him in two previous cases. One of these two cases is case No. M/13 of 1967. A certified copy of the report of enquiry in that case was handed up to me. Nowhere in the report was any apprehension of a breach of the cease expressed by the enquiring officer.
6. It would appear from the report of the enquiry referred to above and also from the order of the learned Magistrate himself that there was a previous dispute over this land between the parties during the period of cultivation. An order under Section 144 of the Code had been made at the time restraining the present petitioners from interfering with the opposite' party's possession in the land. Again, at the time of harvesting a fresh order to the same effect was made under Section 144. There was thus a standing dispute over this land between the parties. Successive promulgation of orders under the section to avoid a decision of the dispute as to possession is not contemplated by Section 144, That would be an unjustifiable use of the Magistrate's powers under the section which must be deprecated. The learned Magistrate could no doubt have proceeded under Section 145 or under Section 107 of the Criminal P. C. but an order under Section 144 cannot be made to serve as a prop to possession in disputed land without the party asking for that order having to seek the proper remedy in the matter in the proper forum, The order of the learned Magistrate, I find, suffers from two defects. The record does not show that he had sufficient materials to satisfy him as to the necessity for a proceeding and, secondly, the order was being made to serve as a prop to possession in disputed land without the party concerned having to seek his remedy in the civil Court. As a matter of fact, I find from the record that a civil suit between the parties over this land was pending at the time and an order of injunction had already been issued by the civil Court restraining the present opposite party No. 1 from interfering with the present petitioner's possession in the land concerned. By drawing up a proceeding under Section 145, the learned Magistrate induced a conflict of jurisdiction and a conflict of decisions which is most undesirable. When the dispute bad been taken seisin of by the civil Court which had already issued an order of injunction, that should have been treated as sufficient to prevent any breach of the peace. It was not proper in the circumstances to draw up a proceeding under Section 145 and then to proceed in a manner in conflict with the orders made by the civil Court.
7. In the proceeding that was drawn, up, the dispute is stated to be concerning 'the share of paddy' of the lands mentioned in the schedule attached thereto. This proceeding was drawn up after the proceeding under Section 144 had been converted into one under Section 145. This latter section appears in Chap. XII of the Criminal P. C. which deals with disputes as to immovable property. The question that is raised is whether a dispute concerning share of paddy can be covered by the section. Mr. Chatterjee appearing for the opposite party refers to Sub-section (2) of the section which says that the expression 'land or water' includes buildings, markets, fisheries, crops or other produce of the land, and the rents or profits of any such property and the argument on the strength of this definition is that a dispute over the produce of land can be the subject of a proceeding under Section 145. In support of this contention, Mr. Chatterjee refers to a decision of this Court in Ramzan Ali v. Janardhan Singh (1908) ILR 80 Cal 110, and to a decision of the Patna High Court in Deonandan Singh v. Thakur Singh AIR 1949 Pat 58. Neither of these two oases, in my view, supports the contention of Mr. Chatterjee. In Ramzatt Ali's case (1903) ILR 80 Cal 110, the subject-matter of the dispute was crops which had been out and stored on the threshing floor and it was held that harvested crop being movable property cannot be the subject of a dispute as contemplated under Section 145, In the Patna case, the subject of dispute was 50 to 60 bighas of land and that portion of the learned Magistrate's order in a proceeding under Section 145 of the Code was challenged which covered within the dispute the paddy harvested from a portion of this land before the initiation of the proceeding and stored on same other land. This decision refers to Bamzan Ali's case and agreeing therewith held that as the impugned portion of the order related to movable pro. party in the shape of harvested paddy stored on some land which was not the subject-matter of the dispute, the dispute relating thereto is not such as is covered by Section 145 of the Code.
8. A dispute under Section 145 of the Code has to be a dispute over land or water and according to the definition of the term 'land or water' crops or other produce of the land are included in the term, which only means that when there is a dispute over land or water, any dispute over the crops or other produce thereof would be included in that dispute, but the crops or other produce have to be standing crops on the disputed land at the time the proceeding is drawn up. That there cannot be any dispute overcrops or produce of land divorced from the land itself would be apparent from Sub-section (8) of the section which relates to the disposal of the crop or produce pending the proceeding. The opening words of the sub-section are to the following effect:
If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him * * *
It is clear, therefore, that the subject of the proceeding is the property, any crop or other produce whereof might be disposed of in accordance with the provisions of the sub-section. In my view, no proceeding under Section 145 of the Code can be drawn up over a dispute concerning the crop of land divorced from the land itself. If however, there is a dispute over land, that dispute will cover the crop standing thereon. And that is exactly what the definition of the term 'land or water' in Sub-section (8) of the section means when it says that the expression 'land or water' includes amongst others crops or other produce of the land. The learned Magistrate, in my view, fell into an error in drawing up a proceeding under Section 145 of the Code over a dispute concerning merely the share of paddy of the land.
9. The third contention relates to the non-consideration of the affidavits filed by the respective parties. The learned magistrate does not appear from the order passed by him to have directed his attention to the contents of the affidavits that were filed. He states no doubt in his order that be has carefully considered the written statements, documents and affidavits filed by both the parties, but that is not enough. The order that is made must indicate on the face of it that there was such consideration of the materials that were produced. Affidavits take the place of evidence; under Section 145 of the Code. Although the procedure is of a summary nature, there must be some indication in the order that is passed, that the contents of the affidavits really came into the consideration of the learned magistrate. As the order in the present case does not disclose that the learned magistrate's attention was directed to the contents of the affidavits, the order is not a proper order that is made on a consideration of all the materials produced before him.
10. The last objection relates to the propriety of the proceeding in view of the pending title suit between the parties over the said property. I have dealt with this objection earlier. I do not want to carry the idea that when a title suit is pending, the. learned magistrate's hands are tied and that under no circumstance he could make an order under Section 144 of the Code. In this case, as the record indicates, there is not only a suit pending but an order of injunction had been made by the civil Court in the pending suit. That should have been treated as sufficient steps taken to prevent a breach of the peace. If in spite of that any action was thought necessary, it should be in consonance with the civil Court's order.
11. Considering all that I have stated above, the order made by the 'learned Magistrate must be held to be unsustainable. As there was no sufficient foundation for the satisfaction of the learned magistrate, the proceeding itself is liable to be quashed. The proceeding is liable to be quashed in view of the pending title suit between the parties. The proceeding was also liable to be quashed in view of the fact, that the learned magistrate had no jurisdiction to start the proceeding in a dispute over a share of the paddy and the order was also liable to be set aside because of the non-consideration of the affidavits that were filed in the case.
12. In view of all this, the Rule is made absolute. The entire proceeding under Section 145 of the Code of Criminal Procedure in the case is quashed.