Das, J.:— These two cases arise out of a proceeding under section 145 of the Code of Criminal Procedure. The dispute relates to about 230 bighas of land in village Bharsara Mangit within police-station Shahpur of the district of Shahabad. The dispute appears to have arisen soon after the death of Lady Jwala Prasad, which event took place on the 8th of June, 1941. The property in dispute belonged to the late Sir Jwala Prasad, a Judge of this Court. After his death on the 25th of March, 1933, there was a dispute between his widow (Lady Jwala Prasad) and his brother Bindlryachal Prasad Varma, the petitioner in Criminal Revision no. 290 of 1945, and 1st party in the proceeding before the learned Magistrate. Sir Jwala Prasad left two nephews also, Ramchandra Prasad Varma and Parsuram Prasad Varma, and a grandnephew, Bijoy Pratap Varma. Ramchandra Prasad Varma is concerned in Criminal Reference no. 8 of 1945. The dispute between Lady Jwala Prasad and the aforesaid members of the family was ultimately referred to the arbitration of two Judges of this Court. The said arbitrators decided the dispute by an award. It is not necessary to give full details of the award. It is sufficient to state that under the award, the property was given in equal shares to Bindhyachal Prasad Varma and the nephews, with the proviso that during her lifetime, Lady Jwala Prasad would be in possession of, and entitled to, exclusive possession of the immovable property and to be entered in the land registration in respect thereof, and receive and appropriate all profits therefrom and

“otherwise to deal with the said property as proprietor having a life-interest only therein, subject nevertheless to personal liability in respect of all the ordinary expenditure of such a proprietor in respect of public demands and other burdens on the properly not hereinafter excepted and in respect of the ordinary upkeep of the property and subject to such other conditions and reservations as are hereinafter set out.”

Under clause 6 of the award it was provided that

“if a certificate is issued by the Collector in respect of any arrear of cess or other public demand payable upon any item of immovable property aforesaid by the first party (Lady Jwala Prasad), it is open to either the second or the third party (Bindhyachal Prasad Varma or the nephews) to pay to the Collector the amount due and such party is thereupon entitled to take possession of the said item of property until the first party has repaid to such other party the amount so paid to the Collector with interest at twelve and a half per cent per annum, etc.

The property in dispute in the present case has been described in three schedules. Schedule A consists of about 160 bighas of canal irrigated land said by the first party to be the bakasht of the proprietors. According to the 1st party, this land came into the possession of the 1st party on the 27th of September, 1939, on payment by him of canal dues which had been allowed to fall in arrears by Lady Jwala Prasad and in respect of which a certificate had been issued by the Collector. This possession is claimed to have been taken in accordance with paragraph 6 of the award. Schedule B consists of about 12 bighas of land of which the 1st party claims to be in possession under a deed of trust executed by Lady Jwala Prasad on the 30th of September, 1936, appointing the 1st party as trustee. Schedule C consists of about 57 bighas of land which has been referred to in the proceeding as inheritance land. It is said that the 1st party, Bindhyachal Prasad Varma, and the nephews came into possession of this land on the death of Lady Jwala Prasad on the 8th of June, 1941.

On the other side, the 2nd party to the proceeding under section 145, Criminal Procedure Code, claimed possession of the lands in dispute under a lease executed by Lady Jwala Prasad on the 12th of June, 1940, in favour of her tahsildar, Madho Singh, and three of his relatives, namely, Sadho Singh, Awadh Singh and Gaya Singh. Besides these four persons, there are others included in the 2nd party, and according to the 2nd party's case, these persons are relatives on whose behalf the settlement was taken by Madho Singh and others, and they were amicably in separate possession of the disputed lands which were acquired by the lease.

The present dispute arose in the following way. Soon after the death of Lady Jwala Prasad in June, 1941, there was a report by the chaukidar of an apprehension of a breach of the peace. The local police thereupon submitted a report to the subdivisional Magistrate. On this report, a proceeding under section 144 of the Code of Criminal Procedure was drawn up. This proceeding appears to have terminated in favour of Bindhyachal Prasad Varma, and when the matter was brought to the High Court, this Court declined to interfere, as the order under section 144, Criminal Procedure Code, was likely to expire in a few days. An observation appears to have been made by this Court to the effect that the appropriate section for deciding the question of possession would be section 145, Criminal Procedure Code. Subsequently, a proceeding under section 107, Criminal Procedure Code, was drawn up against the 2nd party (Madho Singh and others). Again the matter came up to the High Court, and the proceeding under section 107, Criminal Procedure Code, was quashed. The decision of Dhavle, J., who dealt with the case, is reported in A.I.R 1942 Patna, 331. After the aforesaid decision, the learned Magistrate drew up a proceeding under section 145, Criminal Procedure Code, on the 14th of March, 1942. This proceeding was drawn up on the earlier police report, inasmuch as the learned Magistrate was satisfied that an apprehension of a breach of the peace between the parties still continued. This proceeding terminated on the 8th of January, 1943. The learned Magistrate stated that he was unable to satisfy himself as to which of the parties was in possession, and he attached the lands under section 146 of the Code of Criminal Procedure. I have failed to mention that when a proceeding was drawn-up. On the 14th of March, 1942, the learned Magistrate had passed an order of attachment pending his decision of the dispute. Against the order attaching the land under section 146, Criminal Procedure Code, there was a reference to this Court, which was disposed of by Shearer, J. in Criminal Reference no. 29 of 1943. The reference was accepted, and the order of the learned Magistrate was set aside. The case was remanded with directions to the learned Magistrate to hear further arguments and then pronounce judgment. The learned Magistrate heard further arguments on the 19th of September, 1943, and then again on the 13th of February, 1944. On the 6th of April, 1944, he passed orders holding the 2nd party (Madho Singh and others) to be in possession of the disputed land except a few plots and he forbade the 1st party from disturbing the possession of the 2nd party. Against this order, there were again a reference and an application in revision, the reference being Criminal Reference no. 23 of 1944 and the revision being Criminal Revision no. 689 of 1944. These were disposed of by Reuben, J. by his order, dated the 22nd September, 1944. The application in revision was dismissed, and the reference was accepted in part with regard to some formal defects, which were directed to be corrected, in the order under sub-section (6) of section 145, Criminal Procedure Code, which was still to be issued. The matter again went back to the trying Magistrate, who heard the parties on the 14th of October, 1944, and then on the 16th of December, 1944, the Magistrate passed the formal order under sub-section (6) of section 145 of the Code of Criminal Procedure. It is against this order, dated the 16th December, 1944, that the two cases under our present consideration are directed. It would appear from what I have stated above that the present proceeding under section 145, Criminal Procedure Code, has now been pending for more than three years, and the dispute itself has been pending for more than four years, thereby frustrating to a great extent the very purpose for which the preventive sections of the Code of Criminal Procedure were intended.

It would be convenient to take up the reference and the revision separately, inasmuch as the questions raised are not exactly the same. These cases were originally before a single Judge and have come to us, because it was considered, desirable that the uncertainty of the legal position regarding a particular point, which I shall presently mention, should be set at rest by a decision of the Division Bench.

The “uncertainty of the legal position”, referred to above, arises in Criminal Reference no. 8 of 1945, and is the following. I have already stated that the 1st party in the proceeding under section 145, Criminal Procedure Code, was Bindhyachal Prasad Varma, and the 2nd party were Madho Singh and others. The nephews of Bindhyachal Prasad Varma were not made parties to the proceeding. When the matter came up before Reuben, J., one of the points taken before him was that the order of the learned Magistrate was bad, because of non-joinder of the nephews. Reference was made in this connection to the cases of Raghunandan Pandey v. Kishun Mohan Singh and Jainath Pati v. Ramlakhan Prasad and Inderdeo Singh v. Kesho Singh. Reuben, J., then observed as follows:—

“The point is a difficult one, and, in my opinion, it is not necessary to consider it in the present case, because Inderdeo Singh's case is itself an authority that proceedings under: section 145 are not without jurisdiction, and, therefore, void merely because certain persons who might have been impleaded have not been impleaded. In the present case, the nephews have not made an application to be impleaded or to challenge the validity of the proceedings. When they do so, it will be time enough to consider what the effect of not impleading them will be.”

When the case went back to the Magistrate for the purpose of removing some of the formal defects as directed by Reuben, J., Ramchandra Prasad Varma made an application on the 18th of October, 1944, to be made a party to the proceeding. It is to be noted that this application was filed after the proceeding had terminated in favour of the second party by the decision of the learned Magistrate given on the 6th of April, 1944. All that remained to be done was to issue a formal order under sub-section (6) of section 145 of the Code of Criminal Procedure. The application filed by Ramchandra Prasad Varma was rejected by an order of the learned Magistrate in the following terms:

“It is too late now. He was not a party in the proceeding. Babu Bindhyachal Prasad Varma has already claimed to represent him.”

Therefore, the question for consideration is if the order of the learned Magistrate is had for non-joinder of Ramchandra Prasad Varma, one of the nephews of Bindhyachal Prasad Varma. This question has been examined in great detail in the case of Inderdeo Singh v. Kesho Singh with reference to the earlier decisions in Raghunandan Pandey's case and Jainath Pati's case and it, has been held that the two essential conditions for the foundation of jurisdiction of the Magistrate under section 145 are that there should be a dispute likely to cause a breach of peace and that the dispute should concern land: it is not correct to say that because section 145(3) provides for local publication, therefore the question of possession is set at rest once for all and the final order under section 145(6) is binding on the whole world. It is, therefore, open to a Magistrate to start fresh proceedings under section 145 in respect of the same land, when the parties to the proceeding are not the same as in the previous proceedings. This very question was referred to the Full Bench of the Calcutta High Court in as far back as 1902, and the decision of the Full Bench was given in Krishna Kamini v. Abdul Jubbar. At the time when the said decision was given orders under section 145, Criminal Procedure Code, were excepted from the revisional jurisdiction of the High Court, though they were subject to superintendence under section 107 of the Government of India Act, 1915. The nature of this latter jurisdiction was among the questions dealt with by a Special Bench of this Court in Parmeshwar Singh v. Kailashpati where the decision of the Calcutta High Court in Krishna Kamini v. Abdul Jubbar was referred to with approval. On the question as to how nonjoinder affected jurisdiction, Hill, J., whose judgment was concurred in by the majority of the Full Bench, observed as follows in Krishna Kamini's case.

“Then as to the question of jurisdiction. On being satisfied of the existence of a dispute likely to cause a breach of the peace concerning land, etc., within his local jurisdiction, the duty, which is imperative, is cast upon the Magistrate of taking action under section 145. The two essentials are that there should be a dispute likely to cause a breach of the peace, and that the dispute should concern land, etc. The section does not primarily contemplate cases in which there have already been overt acts of violence. All the disputants may be persons of peaceable disposition, but if the dispute is in its nature of such a kind that it is likely, having regard to the known conditions of society, to lead to a breach of the peace, that is enough to warrant the Magistrate's intervention and to give him jurisdiction over the subject of dispute. Upon the existence of those conditions and those conditions only, is the jurisdiction of the Magistrate in my opinion dependent. The object, I think, is to take the subject of dispute, so to speak, out of the hands the disputants, and to constitute one of them, whose possession the law will protect, its custodian until the other has established his right (if any) to possession in a Civil Court. In certain instances indeed the Magistrate is authorised himself to take possession so that none of the parties concerned may have possession, until a Civil Court has decided upon the right. But be this as it may, questions of the misjoinder or nonjoinder of parties do not ordinarily go to the jurisdiction. A Magistrate would no doubt be acting without jurisdiction, if he entered upon his inquiry without having issued the orders contemplated by clause (1) of the section. But questions of whether A ought to have been added as being a person likely to be affected by the proceeding, or B omitted as not being concerned in it, or whether C was added at too late a stage, and such like, are questions of procedure by which, in my opinion, the jurisdiction of the Magistrate is not affected.”

It was further pointed out in that case that up to the point of the beginning of the inquiry, the Magistrate has very wide powers with respect to the person whom he will bring into the proceeding; he may alter or add to the array of parties either of his own motion or on the application of any one claiming to be concerned in the dispute in the sense that he claims to be in possession; but after the enquiry has opened, it is not intended, subject to the provisions of clause (7), that any new parties should be brought in. It would lead to much incovenience and delay, and it would be necessary in such a case to start the inquiry afresh, as the party added would have a right to have the evidence taken in his presence; if several claimants successively were to come in this way, it is evident that the proceeding might be indefinitely prolonged. The view taken in Krishna Kamini's case was accepted in Nandan Singh v. Siaram Singh where it was observed that the question of misjoinder and non-joinder of parties being a question of procedure did not ordinarily affect jurisdiction. The same view was again expressed in Inderdeo Singh v. Kesho Singh where several earlier decisions on the same question were examined. This view was also approved by a Division Bench in Ambika Thakur v. Emperor where the effect of an order under section 145 of the Code of Criminal Procedure, came to be considered in an appeal from a conviction of certain persons. It was observed there as follows:—

“Though both of us agree in the view taken in this last case, Indradeo Singh, the general principle, which we have enunciated above, remains the same. A third party, not bound by the order in a proceeding under the section, is in a different position from a party who has been definitely prohibited from disturbing the possession of the successful party.”

The question of not impleading some co-sharer landlords in a dispute under section 145 of the Code of Criminal Procedure was also considered in Raja Gope v. Sukan Singh and it was observed as follows:—

“In the case of co-sharer landlords, possession of one is the possession of all, and one set is capable of representing the entire body in a proceeding under section 145 of the Code of Criminal Procedure.”

The decision in Anesh Mollah v. Ejaharuddi Mollah was distinguished on the ground that it was a case in which there were different sets of landlords, some of which were not parties to the proceeding. In the case before us, the written statement of Bindhyachal Prasad Varma claimed that he and his nephews were jointly in possession. The statement is

“that the petitioner along with his nephews is in possession of all the lands described in schedules A and C”.

Whether Bindhyachal Prasad Varma could and did represent the nephews in the present proceeding under section 145, Criminal Procedure Code, is a question which need not be decided here. No application was filed on behalf of any of the nephews for being added as a party, till after a decision had been given by the learned Magistrate on the 6th of April, 1944. The application was made for the first time by Ramchandra Prasad Varma on the 18th of October, 1944, after the case had gone back to the learned Magistrate for issuing a formal order under sub-section (6) of section 145 of the Code of Criminal Procedure, as directed by Reuben, J. In these circumstances, I am unable to accept the contention that the order of the learned Magistrate is bad for non-joinder of Ramchandra Prasad Varma. In my opinion, the view taken in Krishna Kamini's case is still good law, and two single Judges of this Court and a Division Bench have accepted that view as correct. As at present advised, I see no reasons to dissent from that view.

The only other question, which arises in Criminal Reference no. 8 of 1945, is the order supposed to have been given by the learned Magistrate for delivery of possession on the 16th of December, 1944. It is in respect of this order that the learned District Magistrate has made a reference to this Court. It appears from the explanation of the learned Magistrate that no Avrit of delivery for possession in the ordinary sense was issued: what the learned Magistrate meant was the withdrawal of the attachment by the Court after he had decided the question of possession in favour of the 2nd party. It is admitted that the order of the attachment has now been withdrawn. It is clear to us that no order of attachment can subsist after the learned Magistrate has found in favour of the 2nd party on the question of possession. Therefore, there are no grounds for interference with the order of the learned Magistrate on this account.

This disposes of Criminal Reference no. 8 of 1945.

I now turn to Criminal Revision no. 290 of 1945. The learned Advocate-General for the petitioner has urged before us that the order of the learned Magistrate is bad because some of the members of the 2nd party were dead before the proceedings were drawn up, and some more probably died during the proceedings. It was not alleged during the pendency of the proceedings that any of the parties had died; even when the cases were heard by Reuben, J., it was not alleged that any of the members of the 2nd party had died. It was during the pendency of the two cases now before us that an allegation was made that some of the members of the 2nd party had died. An affidavit filed by Madho Singh stated that Deshraj Singh and Kedar Singh had died in the year 1942, Mukhi Singh died in 1943 and Suraj Nath Singh in 1944; A counter affidavit was filed on the 27th of June, 1945, on behalf of the petitioner, Bindhyachal Prasad Varma, in which it was stated that Deshraj Singh died on the 17th of March, 1942, Kedar Singh died on the 16th of October, 1941, Mukhi Singh died on the 10th of November, 1941, and Suraj Nath Singh on the 13th of July, 1944. It has been very strongly contended by the learned Advocate-General that the entire proceeding is bad, because an order has been passed by the learned Magistrate upholding the possession of certain dead persons. We are not in a position to decide the question as to the dates on which these persons died on affidavits only. Moreover, the written statement filed on behalf of Madho Singh, and others (the 2nd party) clearly shows that the members of the 2nd party were in possession under one title, and separate possession amongst them was a matter of private arrangement. One of the points, which was made before Reuben, J., and which was sought to be re-agitated before us, is that the order of the learned Magistrate is bad, inasmuch as he has not considered, separately possession of different members of the 2nd party. Reuben, J., disposed, of this point as follows:—

“As I have indicated, the claim of the 2nd party is that they all derived their title to, and their possession over, those lands under the lease executed by Lady Jwala Prasad in the year 1940. The separate possession of the land by different sets, of the 2nd party is a matter of private arrangement between themselves. I do not see show the failure of the Magistrate to specify the different portions in his proceedings can have prejudiced the first party.”

Reuben, J., had disposed of the point, and it is no longer open to the petitioner to raise the same point over again. Our attention was drawn in this connection to the case of Ram Kishan Singh v. Faujdar Gope. The facts of that case, however, were different inasmuch as the tenants in that case claimed under different titles, and there was no unity of title or possession amongst the tenants who were members of the 2nd party. In those circumstances, it was observed that the order of the Magistrate had resulted in the absurdity of passing an order declaring the possession of a person who was dead before the proceeding was drawn up. This case was considered in Raja Gope v. Sukan Singh where the distinction mentioned above was pointed out and reference was made to the case of Gulab Kuer v. Ganouri Koeri where Noor, J., had pointed out that it was not necessarily illegal or irregular to combine a large number of plots in a proceeding under section 145, when the dispute between a landlord, who claims a large number of plots on one side and different sets of tenants, who claim different plots, on the other. Here the members of the 2nd party were claiming as a body under the lease of 1940. In such circumstances, I am unable to accept the contention that the order of the learned Magistrate is bad, because be did not consider the separate possession of each particular member of the 2nd party or because some members of the 2nd party have died during some stage or other of the proceeding.

The learned Advocate-General laid great stress on the fact that the lease, on the basis of which the 2nd party claimed to be in possession, has now expired by efflux of time, the lease being for a period of five years only. He has contended that the petitioner, as landlord, is entitled to take possession of the land now on the expiry of the lease, and an adverse order under section 145 of the Code of Criminal Procedure might prevent him from exercising his ordinary right as a landlord. Reliance has been placed on the case of Gita Prasad Singh v. King-Emperor where it has been observed that the tenant whose right is determined after the expiry of the lease has no right to remain forcibly upon the land and say to his, landlord that he will cultivate that land till he is, evicted by a Civil Court, and that the landlord is entitled to go upon the land and, if necessary, to use force for the purpose of asserting and maintaining his possession. This contention, however, loses sight of the fact that in a proceeding under section 145. Criminal Procedure Code, the material question for decision is the question of possession at the date of the order under sub-section (1) of section 145. Therefore, the material question for decision in the present case was the question of possession in March, 1942, when the proceeding under section 145, Criminal Procedure Code, was drawn up. The Magistrate is bound to uphold the possession of the party who was in possession on that date. It is not admitted by the 2nd party that they have given up possession after the expiry of the lease, and it would obviously be improper to drop proceedings or set aside the order of the Magistrate when the dispute between the parties still subsists.

There are certain other points raised on behalf of the petitioner, which were disposed of by Reuben, J., and the petitioner cannot be allowed to re-agitate them now. With regard to the formal defects which Reuben, J. had directed to be corrected, the learned Magistrate appears to have corrected them in his formal order, dated the 16th of December, 1944, except with regard to two particulars which I shall presently mention. With regard to those plots, which were not claimed in their entirety by the 2nd party, the learned Magistrate has now specified the portion which the 2nd party claim, instead of merely stating “disputed land” as he had done before. With regard to some of the plots, it appears that the 1st party claimed a particular half either western, eastern, southern and northern, whereas the 2nd party claimed from a different direction. It has been contended before us that only the overlapping portion will be the disputed portion, and not the entire half. The learned Magistrate has, however, specified the particular half which the 2nd party claim, and in respect of which the learned Magistrate has found the 2nd party to be in possession. I am unable to see how any prejudice has been caused to the 1st party by such specification. The matter has now been made clear by the learned Magistrate, and there is no difficulty in finding out the particular portion in respect of which the possession of the 2nd party has been upheld.

I now mention the two particulars, in respect of which the defects still exist. There are four plots, nos. 277, 148, 590 and 351, which were not claimed by the 2nd party; yet they have been given to the 2nd party. Learned Counsel for the 2nd party has stated before us that these four plots were not claimed by the 2nd party. Therefore, the order of the learned Magistrate with regard to these four plots must be set aside. As these four plots were not claimed by the 2nd party, they cannot be held to be in possession thereof.

Then, there are seven plots, nos. 534, 219, 135, 137, 568, 578 and 579, which, it is stated, were not included in the proceeding, but in respect of which an order has been passed by the learned Magistrate in favour of the 2nd party. Learned Counsel for the 2nd party has pointed out that two of these plots, namely, nos. 534 and 579, are included in the proceeding. Therefore, the learned Magistrate has made no mistake regarding these two plots. The remaining five plots, namely, nos. 219, 135, 137, 568 and 578, were not included, in the proceeding: this has been conceded by the learned Counsel for the 2nd party. Therefore, the learned Magistrate could make no order regarding these five plots.

The net result, therefore, is that the reference is discharged, and the application in revision is dismissed, subject to the modifications mentioned above. The order of the learned Magistrate will stand except with regard to the four plots mentioned above, which were not claimed by the 2nd party, and the five plots I not included in the proceeding. The order of the learned Magistrate will be set aside regarding these nine plots.

Manohar Lall, J.:— I entirely agree.

Reference discharged.

Application dismissed.

K.D