JUDGMENT
Jwala Prasad, J.
1. The 2nd party has come to this Court as aggrieved by an order of the Magistrate passed under Section 144 of the Code of Criminal Procedure on the 2nd of January 1922, which was made absolute on the 18th of January.
2. The Magistrate’s order was passed upon a Police report, dated the 18th December 1921, which showed that there was an imminent danger to a breach of the peace on account of the 2nd party claiming possession of the land in dispute which, according to the investigation of the Police, was found to be in possession of the 1st party. Both parties gave evidence with respect to their respective claims of possession over the land in dispute before the Police. The Sub-inspector accepted the evidence of the 1st party and rejected that of the 2nd party on two principal grounds: (1) that against the 1st party the landlord obtained a rent-decree on the 14th of January 1920 for the years 1324 to 1327, with respect to the lard in question, and (2) that out of the witnesses examined on behalf of the 2nd party one of them, Babu Lall, gave out that the disputed land was cultivated by, Bhikham Singh, (?) the 1st party, and that he had planted Kurtbi this year. Accepting the report of the Police, the Magistrate issued an ex parte order under Clause (2) of Section 144 of the Code of Criminal Procedure. The 2nd party objected to this order by means of a petition. It was alleged that the rent decree relied upon by the 1st party was a collusive one, and they not being party to it were not bound by it. At the hearing of the case on the 18th January both parties accused the lardlord (The Darbhanga Raj) of having colluded with the other party. It was difficult for the Court to determine this point. The Magistrate observed. “it is quite possible that the collusion of the Raj advanced by both parties is now in favour of the 2nd party.” The Magistrate relies upon the rent decree as being a prima facie evidence of possession in favour of the 1st party. The rent-decree is to some extent; evidence under Section 3 of the Indian Evidence Act as to the landlord having recognized the holding as being in possession of the 1st party: but that evidence; is not conclusive as against the 2nd party. It does not stand on the same footing as the delivery of possession given by a Civil Court or a decree awarding possession by a Civil Court. These have been held to be sufficient to entitle a Magistrate to pass an order under Section 144 of the Code of Criminal Procedure, inasmuch as the Civil Court delivery of possession puts to an end any dispute as to possession of immoveable property which alone can be the subject-matter of an enquiry under Section 145 of the Code. In such a case it has been held that action under Section 144 is appropriate and the Magistrate is not required to initiate proceedings under Section 145 of the Code: Vide Sukan Singh v. Prayag Singh 57 Ind. Cas. 95 : 1 P.L.T. 81 : 2 U.P.L.R. (Pat ) 35 : 1920 Pat. 124 : 21 Cr. L.J. 575. The possession delivered by a Civil Court may, under certain circumstances, also operate against the parsons not parties to the Civil Court decree as has been held in the case of Gouri Dutt v. Gobind Singh 53 Ind. Cas. 829 : 1 P.L.T. 44 : 20 Cr. L.J. 829. It if, however, doubtful whether a mere rent-decree obtained by a landlord will bind one who is not a party to it so as to hold that possession was either determined by a Civil Court or was undisputed. Therefore, the rent decree in the present case itself is not a conclusive proof of possession in the favour of the 1st party. The possession was disputed before the Police and, as observed above, both parties adduced evidence in support of their respective claim to possession. The Sub-Inspector relied upon the evidence of a witness on behalf of the 1st party, named Babu Lall, (?) who proved that the land in question was cultivated by the 1st party and some crop was also grown. This was, therefore, an additional evidence and putting this alongside the rent decree, the Sub-Inspector was of opinion that the evidence of possession was conclusive. Based upon that report the Magistrate thought that there was a prima facie case of actual possession in favour of the 1st party and consequently he issued an order under Section 144 of the Code of Criminal Procedure. In the circumstances of the case, it may be that the order of the Magistrate of the 2nd of January was good inasmuch as it was passed with a view to prevent a breach of the peace which was then imminent. The more appropriate action, however, would have been for the Magistrate, after hearing the parties on the 18th Of January, to convert his order under Section 144 into a proceeding under Section 145 of the Code so as to once for all determine the right of the contending parties to the possession of the land in question. The order of the 2nd of January confirmed on the 18th January will expire in about two weeks, and one cannot be sure that the order of the Magistrate has been so effective as to safeguard the public peace and that the dispute between the parties will not recur. The Magistrate may then be driven to the necessity of adopting successive proceedings under Section 144, which has been condemned by this Court. A proceeding at the initial stage on the 18th of January under Section 145 would have, as observed above, once for all settled the dispute between the parties and put to an end any danger to a breach of the peace. I, therefore, do not go so far as to hold, in the circumstances of the present case, that the order of the Magistrate of the 2nd of January 1922 was without jurisdiction. Certainly, I think that the Magistrate will, in case of any future danger to a breach of the peace, adopt the more effective measure by instituting a proceeding under Section 145 of the Code, treating the effect of his order of the 2nd of January upon the possession of the parties as not affecting the claim of the 2nd party. In other words, the enquiry as to possession, in case of the Magistrate’s adopting a proceeding under Section 154 in future, will be of a date anterior to the 2nd of January 1922.