ORDER S.D. Khare, J.
1. This is an application in revision against an order dated 17th September, 1962, passed by a Magistrate first class, Kanpur, in a proceeding under Section 145 Criminal Procedure Code directing that possession be delivered to the opposite party. A revision application filed before the Sessions Judge, Kanpur, was dismissed on 17th December, 1962.
2. The facts leading to the present revision application might be briefly stated as follows.
On 21st August, 1960, the Gaon Samaj had executed a patta of the laud in dispute in favour of the applicant for raising constructions. The applicant deposited ten-times of the land revenue on 14th June, 1961, for becoming its bhumidhar. On 18th January, 1962, he obtained the permission of the Sub-Divisional Magistrate to raise construction on that land. It appears that the land of which the patta had been granted in favour of the applicant was used by the Gaon Samaj for holding markets and had already been auctioned to a contractor under a contract which was to remain in force till 19th May, 1962. However, from an application made by the Gaon Samaj on 4th November, 1961, it appeared that the applicant had on 24th October, 1961, started making constructions over the land in dispute and obstructing the contractor from realising the rent of that land from the tenants.
3. An application tinder Section 145 Criminal Procedure Code was made by the subsequent Pradhan on 25th April, 1962, alleging that the land in dispute was in possession of the Gaon Samaj and there was an apprehension of breach of the peace because of the illegal acts of the applicant to whom an illegal patta had been granted.
4. The Tahsildar reported that the patta granted in favour of the applicant was illegal. The police report was that there was an apprehension of breach of peace. A preliminary order was, therefore, passed by the Magistrate on 28th May, 1962.
5. Both the parties filed affidavits in support of their respective claims. However, the Magistrate, without going into the merits of those affidavits and without discussing them, relied on one fact only, to wit, that the auction made by the Gaon Samaj was for the period up to 19th May, 1962, and for that reason the Gaon Samaj must be deemed to have remained in possession till 19th May, 1962. The Magistrate observed that there was no clear evidence on the point as to which party remained in possession from 19th May, 1962 to 28th May, 1962. In the end he observed:-
"In any case during a large part of the two months next before the order of attachment the Gram Samaj seems to have been in possession of the disputed property. The case is decided accordingly. The property shall be released in favour of Gram Samaj Kotra."
6. It is clear from what has been stated above that the Magistrate failed to (a) consider the affidavits filed before him; (b) arrive at a finding as to when the constructions had been started by the applicant on the land in dispute; and (c) decide as to how far the Gaon Samaj could get over the admissions made in the application dated 4th November, 1961, that the applicant had taken over possession of the land in dispute on 24th October, 1961.
7. Sub-section (4) of Section 145 Criminal Procedure Code provides :
"The magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, pursue the statements, documents and affidavits, if any. So put in, hear the parties and conclude the enquiry, as far as may be practicable, within a period of two months, from the date of the appearance of the parties before him and, if possible decide the question 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 the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein :
Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date."
8. The patta granted in favour of the applicant might or might not have been a valid patta. The main question to be decided by the Magistrate was as to which of the parties was in possession of the plots in dispute on the date of the preliminary order and two months pieceding it. The Magistrate failed to record any clear finding on that point. It was for the Magistrate to have arrived at a clear finding on that point, and in case he found that it was not possible to do so, he ought to have referred the matter to the Civil Court under Section 146 Criminal Procedure Code. Unfortunately the Magistrate has passed the final order without complying with the provisions of either Section 145 or Section 146 Criminal Procedure Code. It has, therefore, to be set aside.
9. The revision application is accordingly allowed and the order passed by the Magistrate dated 17th November, 1962, set aside, and the case is ordered to be sent back to him for deciding it in accordance with law, after having considered the affidavits filed on behalf of both the parties in the light of the observations made above.