ORDER
Sinha, J.
1. The learned Sub-divisional Magistrate of Aurangabad has drawn up a proceeding under Section 107, Criminal P. C. against the petitioners, who were second party to the proceeding. This application is directed against that order for quashing the same.
2. It is contended by Mr. Haranandan Singh, on behalf of the petitioners, that as the dispute relates to land, Section 145, Criminal P. C. was the appropriate provision & that if proceedings had to be started under Section 107 of the Code, the proceedings should have been started against both the parties. The opposite party urges that there is absolutely no dispute about the possession of any land and that the petitioners have for some other reason taken into their head to disturb the possession of the opposite party and to create troubles.
3. According to the petitioners, Khata Nos. 100, 141, 101 & 142 had been purchased in execution case No. 698 of 1937 by one Mitrajit Singh, a mokarrari-dar & by a sale deed dated 28-3-1940, the said Mitrajit Singh had sold the lands in those khatas to Jugalkishore, father of Harbans, It is to be mentioned that the petitioners (second party to the proceeding) are Amlas and servants of Harbans. In regard to khata No. 166, it is said on their behalf that this was purchased in another execution case by the decree-holder, Jugalkishore who had obtained a decree for rent against Gajadhar & others: Gajadhar was the father of opposite party Nos. 1 & 2. It is further contended that delivery of possession in regard to these khatas was taken by the auction-purchasers.
In 1947, applications were made by the tenants in respect of a very large area of land, about 1000 bighas, including the lands mentioned above, for reference to the Bakasht Board under the Bihar Bakasht Disputes Settlement Act, 1947 (Act 13 of 1947). After enquiry which disclosed that only 100 bighas were in possession of the landlords and the rest were in possession of the tenants, the Sub-divisional Officer referred to arbitration all the lands except the khatas mentioned above. There was a proceeding under Section 144, Criminal P. C. in respect of two khatas, namely, 101 and 166, and it was held in that proceeding that Ramdahin, opposite party 1, son of Gajadhar, was in possession. After that there does not appear to be any dispute between the parties in respect of any land until November, 1951, which has given rise to the present proceeding.
It is also admitted that on 12-5-1951, a proceeding under Section 133. Criminal P. C. in respect of other lands, between the parties had ended against the petitioners. There was a proceeding under Section 188 (sic) of the Code of Criminal Procedure also against the petitioners which had been started on 4-6-51. & which had ultimately been dropped on 22-8-1951. Thereafter, two sanehas had to be lodged against the petitioners at the instance of the opposite party-one on the 12th of November and the other on 16-11-1951. The police submitted a report on 18-11-1951, in which it is alleged that when the police officers want to the spot, they found the petitioners and their men heavily armed and they were trying to obstruct the peaceful cutting of the paddy crops by the opposite party and their men.
4. Mr. Rajkishore Prasad, appearing on behalf of the opposite party has submitted that there was no dispute at any time about the lands in question and that his clients had all along been in peaceful possession of the same. It is said that in spite of the auction sales in execution of decrees for rent, the opposite party were allowed to remain in possession by the auction-purchasers and that their possession was never disturbed. He does not accept the allegation of Mr. Singa to the effect that Mitrajit Singh had sold the khatas, which he had purchased, to Harbans or his’ father Jugalkishore. He says that the sale-deed of 28-3-1940, had only conveyed the mokarrari rights of Mitrajit to Harbans or his father. Mr. Singh did not accept this position and he referred me to a sale-deed of 28-3-1940, which he had in his possession, and it disclosed that the contention of Mr. Rajkishore Prasad was right that these khatas have not been mentioned in this sale-deed.
Mr. Prasad has referred me to a list of documents which his clients had filed before the learned Sub-divisional Magistrate on 4-12-1951, just on the date when the show cause petition under Section 107, Criminal P. c., was heard, and from that list it appears that Mr. Prasad’s clients had filed the following documents before the Court:
1. Sada settlement paper regarding khatas Nos. 100, 141, 142, 166, 2 and 101;
2. An order under Section 144, Criminal P. C., dated 4-12-1947;
3. Original sale certificate in the execution case showing sale of the khatas to Mitrajit Singh;
4. Certified copy of delivery of possession–It appears the copy had been taken soon after the delivery of possession;
5. Three rent receipts — two of them refer to khatas Nos. 142, 166, 101, 2 & 100 of the year 1940.
On a consideration of the materials before him, the learned Sub-divisional Magistrate has drawn up a proceeding under Section 107, Criminal P. C. against the petitioners. The question is whether the proceeding was rightly drawn up by the learned Sub-divisional Magistrate; if not, whether it should be quashed.
5. Mr. Harnandan Singh has submitted that in a dispute relating to land, proceeding under Section 145 of the Code was more appropriate than one under Section 107; that the proceeding under Section 107 should not have been started only against one party and that a proceeding under Section 107 without first finding the possession of one party or the other is unwarranted and further that the order under Section 144 should not have formed the basis of the proceeding under Section 107.
6. I have been referred to a number of authorities on both sides, and I propose to deal with some of them which appear to me to be relevant. In my judgment, the following propositions of law appear to be established:
1. that in a dispute relating to land, the proper procedure is to start a proceeding under Section 145, Criminal P. C.;
2. that though there may be dispute relating to land, the jurisdiction of the Magistrate to start a proceeding under Section 107 is not ousted;
3. that if the dispute relates to land and if the Magistrate starts a proceeding under Section 107, that proceeding should be started against both the parties; and
4. that in case the Magistrate is of the opinion that the claim of one of the parties to the proceeding is a mere pretence and that in fact there is no dispute ‘bona fide’ or otherwise, a proceeding under Section 107 could be started against that party.
7. In the Full Bench case of — ‘Shebalak Singh v. Kamaruddin Mandal’, AIR 1922 Pat 435 (FB) (A), Jwala Prasad J. made the following observation after having considered a number 01 cases:
“In those cases it has been laid down that when one party is clearly in the wrong and threatens to usurp the rights of another, who is in actual possession of the land in dispute, the proper remedy is an order under Section 144 or 107, Criminal P. C. In such a case Section 145 has no application inasmuch as there is no ‘dispute’ as to possession of land.”
I have purposely underlined (herein ‘ ‘) the word ‘dispute’ because the observation quoted above stresses that where the claim of one party amounts to a mere pretence, there is no dispute between the parties as to the possession of land. Mullick J. observed as follows:
“Where it is clear upon the materials before the Magistrate that one party is in possession and that another whose claim to possession is a mere pretence is threatening to interfere with that possession the Magistrate is clearly entitled to resort to the special summary procedure of Section 144 if immediate prevention or speedy remedy is desirable…. What the Court deprecates is
the habitual and unjustifiable use of Section 144 as a substitute for Sections 107 and 145.”
In the case of — ‘Shama Charan v. Emperor’, AIR 1925 Pat 610 (B), Sen J. held :
“Upon the authorities the principle is clear that the provisions of Section 143 are mandatory and while it is discretionary with the Magistrate to draw up proceedings under Section 107, Criminal P. C., the proper course when there is a ‘bona fide’ dispute as to lands is to proceed under Section 145. Otherwise the effect would be to bind down one of the parties only to the dispute without any adjudication upon the question as to which of the two parties is in possession.”
Referring to the Full Bench case in — ‘AIR 1922 Pat 435 (FB) (A)’, referred to above, the learned Judge said:
“The law on the subject was fully discussed in — ‘Shebalak Singh v. Kamaruddin Mandal (A)’, and it was laid down there that where one party is clearly in the wrong and threatens to disturb the rights of another who is in actual possession of the land, Section 145 has no application.”
In the case of — ‘Musaheb Soudagar v. Nidhi Ram Dutt’, AIR 1927 Pat 314 (C), Sen J. reiterated his views expressed in — ‘AIR 1925 Pat 610 (B)’, but on the facts of this particular case, he observed as follows:
“it would have been better if proceedings had been drawn up against both the parties; but as matters stand, proceedings have been drawn up only against petitioners on the ground that the Magistrate is of opinion that the opposite party is in possession. It also appears from the explanation that after the proceedings were so drawn up the petitioner attempted, notwithstanding the proceedings pending, to collect tolls in exercise of his alleged possession…. In view of the
circumstances disclosed in the petition as well as in the explanation above-mentioned, I do not feel inclined to interfere with the order passed, as it will inevitably lead to a disturbance of peace.”
This was also a case where a proceeding under Section 107, Criminal P. C. had been drawn up against only one of the parties. Fazl Ali j. (as he then was) held in the case of — Amanat Ali v. Emperor’, AIR 1929 Pat 67 (D) as follows:
“There is no doubt, that there is a keen dispute about certain lands in Baijnathpur Diara and that principal parties to the dispute are Sukhraj Roy and Baghunandan Missir. In a case like this the proper procedure would have beer, to institute a proceeding under Section 145, Criminal P. C., and to decide the dispute as to possession once for all so far as the Criminal Court is ccncerned. The learned Magistrate, however, has not adopted that course. Another course which was open to the Magistrate was to proceed under Section 107, Criminal P. C., against both the parties to the dispute and to bind down the party who was proved to be not in possession of the land.”
The judgment Indicated that the proceeding as drawn up under Section 107, Criminal P. C., had merely reproduced the language of Section 107 without specifying in what way and with reference to what matter the petitioner was likely to commit a broach of the peace and in. what way he was likely lo do a wrongful act which might occasion a breach of the peace, and ‘having regard to all the circumstances of the case’, the learned Judge set aside the order of the learned Sub-divisional Officer directing a proceeding under -Section 107 to be drawn up against the petitioner. James J. in — ‘Saddique v. Sheikh Mohid’, AIR 1930 Pat 556 (E) said as follows:
“It is true that where one party who is clearly in the wrong threatens to disturb the rights of another who is in actual possession of the land, the provisions of Section 145 have no application, as was pointed out in — ‘AIR 1925 Pat 610 (B)’. But in that case it was also pointed out that the proper course when there is a real dispute regarding land is to proceed under Section 145, since otherwise the effect might be to bind down one of the parties to the ‘dispute’, without any adjudication on the question as to which of the two parties is in possession.”
In that case it appears that the learned Magistrate who started the proceeding under Section 107 had based the proceeding upon a previous order under Section 144, and the learned Judge deprecated the use of the order under Section 144 as the basis for starting a proceeding under Section 107 because the order under Section 144 does not establish the possession of the party in whose favour the order under Section 144 is passed. In my opinion, the learned Judge was of the view that if there was no dispute in relation to land, then a proceeding under Section 107 and not a proceeding under Section 145 is the proper remedy. Macpherson J. in — ‘Harihar Singh v. Emperor’, AIR 1934 Pat 463 (F) quoted the following passage from the case of — ‘AIR 1930 Pat 556 (E)’:
“It will therefore be necessary before proceedings under Section 107, Criminal P. C., can be properly instituted against the petitioners, to ascertain Which of the parties to this dispute is in possession of the land, which can more conveniently be done by proceedings under Section 145.”
and then observed:
“I am not prepared to admit that convenience is necessarily a good criterion and, still less, a general criterion. This Court should be astute not to interfere with the exercise of his discretion by the District Magistrate in respect of which of the powers conferred on him by statute enabling him to ensure the peace of his district,
he should exercise in a particular case. He is necessarily in a better position to say which of those powers is called for by the situation confronting him at the crucial moment. It is enough that the action which he is taking is
not illegal or definitely improper.”
This case came to be considered by Dhavle J. in — ‘Madho Singh v. Emperor’, AIR 1942 Pat 331 (G). and the learned Judge distinguished this case on the ground that that case was a case in which four members of the petitioners’ party had already been convicted of theft of crops from the disputed land. In that case, his Lordship held that the Magistrate was wrong if he made up his mind that the question of possession was concluded against the persons proceeded against by his previous order in the proceeding under Section 144 and that action might properly be taken under Section 107 against them alone, at any rate in the first instance. His Lordship further observed that disputes likely to cause a breach of the peace concerning land, be they ever so ‘mala fide’, are neither outside the scope of Section 145, nor peculiarly amenable to Section 107, Criminal P. C. His Lordship deprecated the action of the Magistrate in starting proceedings under Section 107 because the Magistrate was of the view that the question of possession had been concluded against the petitioners by a previous order under Section 144, and referred to the case of — ‘Emperor v. Abbas’, 39 Cal 150 (PB) (H) and made the following observation:
“It is also well settled since the Full Bench decision in — ‘Emperor v. Abbas (H)’, that the fact that a dispute lively to cause a breach of the peace concerns land does not by itself deprive a Magistrate of jurisdiction under Section 107, Criminal P. C. Such disputes can be dealt with under this section on information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity. It is, however, essential for the section to apply, that the acts committed or likely to be committed should be wrongful. Acts committed in the lawful exercise of the right of private defence cannot support proceedings under this section….”
His Lordship concluded his judgment by saying:
“The most serious objection to the proceeding under Section 107, however, is that the Magistrate has obviously made up his mind on the order under Section 144 that the petitioners are not in possession.”
In — ‘Deoballam Singh v. Gorakhnath Singh’, AIR 1947 Pat 235 (I) Agarwala J, (as he then was) had to deal with an application for quashing a proceeding under Section 107. In that case, on an application made by the opposite party and on a police report suggesting action under Section 107, the Magistrate asked one Rai Saheb D. N. Singh to hold enquiry and to report if action under Section 107, Criminal P. C. was necessary, and upon the report of Rai Saheb D. N. Singh the Magistrate directed proceeding under Section 107 to be drawn up. This action of the Magistrate was entirely misconceived because the section enjoins that if in the opinion of the Magistrate mentioned in that section there was sufficient ground for proceeding that Magistrate might start a proceeding under Section 107. In that case, it was not the opinion of the Magistrate who started the proceeding but that was the opinion of Rai Saheb D. N. Singh upon which the proceeding was started, and his Lordship said:
“It is not the opinion of the Rai Saheb that could form the basis of a proceeding under Section 107, the Legislature having provided that it is
the opinion of the Sub-divisional Magistrate that sufficient grounds existed for the institution of a proceeding that determines the right to proceed.”
It was on that ground that the proceeding was dropped.
Another case which has been cited before mo by Mr. Singh is that of — ‘Ram Charan Singh v. Basudeo Dusadh, AIR 1949 Pat 482 (J). In that case the facts were entirely different. A proceeding was started under Section 107 against the members of the second party and thereafter a proceeding under Section 145 also was started in respect of the same dispute, and upon an application made by the second party, the learned Magistrate did not drop the proceeding under Section 107 but stayed it till the decision of the dispute under Section 145, In the meantime there was an attempt made to get the dispute referred to a Board of Arbitrators under the Bihar Bakasht Disputes Settlement Act, 1947 (Act 13 of 1947). In that connection there was a report by one Mr. Lakhaiyyar, Magistrate, and upon the strength of that report, the proceeding under Section 145 was converted into a proceeding under Section 107. His Lordship Das said that the conversion of a proceeding under Section 145 to one under Section 107 was a process unknown to law, and further that this Court had, on more than one occasion, expressed the view that when there was a dispute concerning land, which was likely to cause an apprehension of a breach of the peace, the proper procedure was to apply Section 145, Criminal P. C.
Lastly, the parties referred me to the judgment of Sarjoo Prosad J. in — ‘Suraj Narain Rai v. The State’, AIR 1950 Pat 502 (K). His Lordship said that if it was a case of dispute as to possession of land, and a case of ‘bona fide’ dispute at that, proceedings under Section 107 of the Code should not be lightly resorted to. His Lordship was careful to observe that:
“I do not mean to suggest that in a case of land dispute a proceeding under Section 107 is altogether without jurisdiction but in acting under these preventive provisions the Magistrate has to keep in view the respective scope of the provisions under Sections 144, 145 and 107, Criminal P. C.”
It was also held in that case that proceedings under Section 107 were not intended for the purpose of binding over persons who do certain acts in the exercise of their right to property, or in pursuance of a ‘bona fide’ claim of right to property. It was also observed that:
“Action under Section 107 of the Code is in the main intended for persons who are desperate characters and habitually disturb the public peace or who in spite of orders of Civil or Criminal Courts finding possession against them, persist in their unlawful conduct of disturbing the possession of others and take the Jaw in their own hands.”
Section 107 in terms does not speak of the action being confined to persons who are desperate characters and who habitually disturb the public peace. If there is apprehension of a breach of the peace, the Magistrate authorised to take action is entitled to choose under which of the preventive sections he should start a proceeding to meet the particular situation in each case. Section 107. Criminal P. C., authorises the authority mentioned in that section to proceed under Section 107 ‘if in his opinion there is sufficient ground for proceeding’. It will, therefore have to be decided in each case whether the materials before the Magistrate were sufficient to take action under that section.
8. Now in the present case the learned Magistrate had before him the police report which said that the petitioners and their men were armed with deadly weapons and were raising hulla and trying to stop the harvesting while the opposite party were cutting the crops peacefully. There were two station diary entries before the police made at the instance of the opposite party about the threatening attitude of the petitioners. There was also a case under Section 133, Criminal P. C. between the parties which had been decided against the petitioners and which, according to the learned Magistrate, had caused annoyance to them. Then there was the order under Section 144 of the year 1947 which disclosed that in respect of two khatas 101 and 166 the possession of the opposite party had been found and above all this they had filed a number of documents before the Sub-divisional Magistrate, already mentioned, in support of their case of possession throughout. These documents Included the original sale certificate in favour of Mitrajit Singh, and although not specifically mentioned, that must have greatly weighed with the learned Sub-divisional Magistrate in holding that the opposite party were in possession and that the petitioners were claiming possession without any justification; that is to say, they had absolutely no claim to possession of the land : in other words, there was no dispute in regard to possession of the land. According to the case of the opposite party, even though most of the holdings in question were purchased by Mitrajit who had taken delivery of possession, by some arrangement between them and Mitrajit, they were allowed to remain in possession. The production of the original sale certificate in favour of Mitrajit by the opposite party and the certified copy of the writ of delivery of possession did support their version. On these facts it cannot be said that the learned Magistrate was not justified in starting a proceeding under Section 107 against the petitioners alone.
9. It has been contended that the learned Magistrate was wrong in basing the proceeding under Section 107 upon the order under Section 144 of the year 1947. In my opinion, the learned Magistrate has not done so. He has merely referred to the fact that a proceeding under Section 144 had decided the possession of the opposite party, and the learned Magistrate was fully alive to the legal position of the order under Section 144 as he has himself said that proceedings under Section 144, Criminal P. C., cannot form the basis of a proceeding under Section 107; but because of the other facts mentioned above, I think, the learned Magistrate was right in order-ins a proceeding under Section 107 to be drawn up. In my opinion, Mr. Singh is not justified in saying that the learned Magistrate had based his order upon the decision under Section 144, Criminal P. C., in the year 1947. Mr. Singh also argued that the police report was wrong and that the petitioners were entitled to defend their own property. No materials were placed by his clients before the learned Magistrate showing that the petitioners were ever in possession of the land in question, and, therefore, the question of defending their right to property did not arise.
10. Upon the authorities mentioned above, in my opinion, the proceeding under Section 107, Criminal P. C. cannot be said to be unwarranted by law, and in that view of the matter, in my judgment, the application must be dismissed and the rule discharged.