1. This is an application in revision against the order under Section 144 of the Code of Criminal Procedure passed by the Sub-Divisional Magistrate of Arrah on the 17th December, directing the petitioners to abstain from interfering with the opposite party Ramautar Chaube and Ramchhabila Missir in removing the crops of three plots of khata No. 1244.
2. In support of the rule Mr. P.K. Sen contends that the order is without jurisdiction or improper inasmuch as it determines a dispute about the possession of land which on the rulings of this Court ought to be decided not under Section 144 but under Section 145.
3. The khata in dispute Is admittedly recorded in the name of the Jagdishpur math of which Lachman Das is the mahant. On the 19th November, the petitioner Ramsarup Missir applied to the Magistrate for proceedings under Section 107 and notice under Section 144 against the opposite party and two koiris on the ground that he had received shikmi settlement for one year from the mahant on an unregistered patta and had cultivated the plots of which however the opposite party were about to take away the crop. The Police after elaborate investigation reported that the opposite party were in possession and had cut part of the crop, and asked for proceedings under Section 144 against the present petitioners and the two koiris already mentioned. The parties appeared before the Magistrate on the 14th December and filed their documents and thereupon the Magistrate passed the order now impugned.
4. In his explanation the Magistrate submits that there was no bona fide dispute regarding actual possession and accordingly an order under Section 144 was warranted and the best means of preventing the imminent breach of the peace.
5. In my judgment his submission cannot be gainsaid. The facts are that the mahant and Ramjatan Das were both chelas of the previous mahant. Disputes having arisen between them an agreement was entered into between them on the 25th February, 1920, that both should conduct the business of the math. There can be no doubt that the mufassil business was thereafter, and apparently also previously, managed by Ramjatan Das, that the plots in dispute were settled by him with the opposite party who have been in possession for several years and have produced receipts from Ramajtan Das. Friction having arisen between the mahant and Ramjatan Das, the former in order to take sole charge gave settlement in May last for one year to Ramsarup Missir. But transparently Ramsarup Missir did not secure possession and his petition of the 19th November was merely the usual device to get into possession. The crops on the land have been raised by the opposite party this year as in previous years and some of them have been cut by them. I guard myself against any appearance of holding that even in bona fide disputes as to the possession of lands 144 may not be legally and properly utilised indeed it may, in my opinion, will be the obvious practical solution of a serious situation, private rights simply having to give way to the necessity of preserving the public peace. The hands of the executive should, in my view, not be tied by the Courts when they have been deliberately left free by the Legislature. On the practical side also it would be manifestly oppressive to subject an unoffending citizen in possession to the harassment now attendant on proceedings under Section 145, whenever an opponent who is merely attempting to secure possession or is otherwise advancing a thin and untenable claim to possession is or feigns to be about to occasion a breach of the peace. In any view Section 144 was, it is palpable, properly applied in the present circumstances where a Magistrate of experience found on the materials before him that there was no bona fide dispute as to actual possession but Ramsarup with the support of Sadanand and at the instance of the mahant was merely trying to get into possession and that too under the very procedure which he now impugnes.
6. The application is without merits and the Rule is discharged.