1. A preliminary objection was taken that no Letters Patent Appeal lies, as there was no judgment by the learned Judge. We overrule this objection.
2. The property in dispute in these proceedings originally belonged to Narasamma.
3. She is said to have made a gift of it to her son-in-law, Narasinga, and to her daughter, Basamma. Both these latter died in September 1913 within few days of each other. The petitioner in the Court below and the respondent in this Court obtained a sale-deed of the property from one Gangamma, the widow of the divided brother of Narasinga. The appellant purchased the property from the original owner, Narasamma, and from a dayadhi of the deceased Narasinga on 27th January 1914. On the death of the last owner Narasinga, disputes as to the possession of the properties arose between Gangamma, the brother's widow on the one hand and Narasamma, the mother-in-law, on the other. The respondent complained to the Magistrate that on 4th February 1914, the appellant unlawfully trespassed upon property in his possession and that he has been creating disturbance. He further stated that he apprehended a disturbance of the peace in consequence of the wrongful acts of the appellant and another who was the second counter-petitioner in the Court below. The Magistrate passed an order on 22nd February 1914, to the effect that he was satisfied that a dispute likely to cause a breach of the peace existed and called upon the parties to produce evidence, regarding the enjoyment of the property by Ganmma “up to date” is very doubtful and held that the possession of her alleged vendee was also not established. As regards the appellant he found against the forcible entry on 4th February, as alleged in the petition by the other party and said that “it is difficult to say in whose possession the lands were in the interval,” that is between 27th January 1914, which was the date of the sale, and 4th February 1914, which was the date, on which he found that the appellant was peacefully picking the cotton on the land. Nowhere in his judgment does he make any reference to 20th February 1914, which was the date of his order and on which date under S. 145, Cl. 4, he had to find who was in actual possession. It was no doubt open to him to say that, notwithstanding that the appellant was in possession on 4th February 1914, he has not been shown to have been in possession on the later date, namely 20th February 1914. But under the Code of Criminal Procedure he has to find as to who was in possession on the date of his order, not on any date anterior to that, although previous possession may be a guide to his finding as to peaceful and actual possession on the date of his order.
4. We must hold that he failed to exercise his jurisdiction, as he has failed to give a finding as required by law regarding possession of both or either of the counter-petitioners on the date of the order. S. 146, which refers back to possession under S. 145, should not have been applied until a finding had been arrived at that the Magistrate was unable to find which of the disputing parties was in possession of the property on the date of his preliminary order. His order attaching the property under S. 146 is therefore ultra vires and illegal. We must set it aside without prejudice, if he thinks desirable, to his taking such further action as he thinks fit in the matter. We will make no order as to costs.
S.N/R.K
5. Order set aside.