1. This is an application’ in revision against the order dated the 12th January of the Sub-Divisional Magistrate of Samastipur, directing under Section 144, Criminal Procedure Code, that the petitioner Radhe Das “shall abstain for a period of two months from this date from entering upon the disputed lands claimed by Jairam. Mahto and others.”
2. The Sub-Inspector of Police applied on 6th January for “notices under Section 144 on the opposite party not to interfere with the petitioner’s possession over the land and for proceedings under Section 107 against them.”
3. The Inspector of Police deprecated proceedings under Section 107 and asked for notice under Section 144 on both parties and a trial under Section 145. On 12th January the opposite party filed a petition controverting the statements of the Sub-Inspector of Police and denying that there was any apprehension of a breach of the peace from their side if they were unmolested in the peaceful possession of their lands which they asserted On the same day the Magistrate having heard the parties and considered the application and the report passed the order now assailed
4. The known facts are briefly these. The land in suit extending to some 23 bighas was except 8 khatas recorded in the Record of Rights of 1899 as shikmi holdings of twenty-four kashtkars in khata No. 31, extending to nearly 149 bighas of village Araiya, on which the Nandani Factory was the raiyat. The factory was also at the time thikadar of village. An aggregate area of some 8 khatas constituted kaimi lands of two raiyats; but the materials regarding them being meagre the position is obscure. In 1904 the factory sold the holding to the petitioner who though a Tatwa is a mahajan of means. The opposite party are Goalas. In 1905 and 1913 the petitioner purchased a share in the milkiat. In 1919 there was a partition and in the barawarda the petitioner appears as kashtkar of khata No. 148. Out of the twenty-four persons entered as shikmi raiyats eighteen are now dead. The case of the petitioner was that before his purchase in 1904 the factory had ousted the shikmidars and he has been in direct possession ever since and has grown the crops standing in the fields, which the opposite party were prepared to cut on discovering the entry in the Record of Rights, The opposite party asserted in their petition of 12th January that they are in possession and have been so all along and indeed claim that the entry in the Record of Rights was unduly unfavourable to them as they are actually raiyats and not shikmidars, and they plead that in any case there was merger of the interest of the khatadar in that of the landlord at the time of the partition of 1919 when petitioner became the sole landlord of the khata and urge that by reason of apprehension that owing to merger he cannot claim kashtkari rights the petitioner wants direct possession with the help of the Police. While the petitioner points to the fact that the house of Gokhul Mahto stands in plot No. 338 which was recorded as shikmi of Jairam Mahto the opposite party replies that Gokhul and other persons who deposed in favour of the petitioner are heavily indebted to him or employed in his service. The opposite party did not produce any rent receipts before the Sub-Inspector of Police but they produced many before the Sub-Divisional Officer purporting to be from the factory and from the petitioner, stating that they had been afraid -to hand them over to the Police as petitioner had previously done away with some receipts. The Magistrate, however, did not examine them. His conclusion was:
I am only concerned in averting a breach of the peace which must occur if Radhe Das attempts to exercise any kind of act of possession over the 23 bighas in dispute. I must support the entry in the Record of Rights which shows that while in two cases the tenants are kaimidars in all other cases they are shikmidars.
5. It is alleged on behalf of the petitioner that the crops of 16 bighas have already been harvested and that only some rahar and some tobacco remain on the land.
6. Mr. Manuk on behalf of the petitioners argues first that the order of the Magistrate was without jurisdiction, It has indeed been held that Section 144 ought not to be utilised in a dispute regarding the possession of land except against a party whose claim is made not in good faith. That, however, is a matter not of jurisdiction but of propriety. To give the Magistrate jurisdiction under Section 144 all that is required is that he shall be. of opinion that there is sufficient ground to proceed under Section 144 and that immediate prevention or speedy remedy is desirable and that the direction which he proposes to make is likely to prevent or tends to prevent a disturbance of the pub-lie tranquillity or a riot or an affray. In such circumstances private rights must give way whatever be the subject-matter of the dispute : in particular it is immaterial that the dispute relates to land as the great majority of dangerous disputes do in this province.
7. Given the necessary condition an order cannot be impugned as without jurisdiction merely because it was arbitrary, for instance an order stopping kurbani or an order stopping music before a mosque. The condition introduced by the amendment of 1923 that the Magistrate must be of opinion that there is sufficient ground for utilising Section 144 cannot be so interpreted. An arbitrary order may be and often is perfectly valid.
8. It is in fact the propriety of the Magistrate’s order that is here impugned. The correct standpoint from which to view the propriety of order under Section 144 is that of the Magistrate at the time when he passed it and in the light of the materials then before him. The Court will not be astute or keenly critical in respect of them. An order which was proper when made, may at a later date appear in the light of further events or further materials unnecessary and it will then, of course, be rescinded from the date at which it so appears
9. Now what materials had the Magistrate as a basis for the order? Only a Record of Rights which showed the first party or their ancestors as shikmidars (I do not take into account the rent receipts produced by them as they were not examined by them). Manifestly it is entirely correct to lay stress on a Record of Rights, but in this instance it was 29 years old. It is contrary to experience that there should not be changes, for instance, by way of surrender or auction sale. Then there were adverse considerations. Some now advanced are of no importance, such as that the first party claimed a higher status than the Record of Rights recorded in their favour, and that they did not produce their rent receipts at the Police enquiry. But 18 out of 24 shikmidars were dead, there was nothing to show what the local custom or usage is as regards heritability of shikmi and there were definite allegations in the Police report that the plots no longer exist as shown in the Record of Rights but have been amalgamated wholly or in part with other plots. The allegation of dispossession by the factory prior to 1904 was not negligible and the partition recorded is, for what it is worth, in favour of the petitioner. Transparently it could not be said that the case of the petitioner was not advanced in good faith in regard to some at least of the lands or was a mere pretence in regard to any of them. The partition filed by two members of the opposite party simply set out that proceedings under Section 107 should not be taken against them and asked for no more than that the petitioner should be directed not to molest them.
10. Manifestly there were in effect no materials before the Magistrate for his one-sided order under the circumstances. I accordingly make the rule absolute and set aside the order. The Magistrate would have been well-advised to use Section 145 to settle the dispute either alone or after orders under Section 144 against both parties.
11. Let the record be sent down forthwith.