1. The Magistrate has given one more illustration of the almost universal misconception of the object and uses of section 145 of the Cr PC and the belief that it is a convenient substitute for section 9 of the Specific Relief Act, by sending back for a statement of further details a report, received on the 11th of July, 1923, from the police, which put it beyond doubt that a breach of the peace was imminent in a dispute over certain land. A preliminary order should have been made at once, the details being ascertained in the subsequent enquiry; that is the whole purport of the section.
2. The preliminary order was not issued till the 1st of August, 1923, and it is fortunate that there was no disturbance of the peace during the intervening three weeks. During that time Fakira Teli one of the parties to the dispute had also made an application to the Magistrate.
3. The police report mentioned Fakira as one party to the dispute and said the other party consisted of Bhure Khan, who is a co-sharer in the village with Fakira, and also Yakub Khan and Hamid Khan to whom Bhure Khan had leased or purported to lease the land in dispute. With this report was submitted a written application made to the police by Fakira, in which he said that the persons interfering with his possession were the three persons named in the police report and also eight other persons, six Musalmans and two Gonds. His written application to the Magistrate said the dispute was between himself and Bhure Khan but the other ten had assisted Bhure Khan in forcibly evicting him from the land.
4. The preliminary order calls on Fakira Teli and Khure Khan alone to appear though it was apparent from the police report that at least Yakub Khan and Hamid Khan were also “parties concerned in” the dispute. When Bhure Khan appeared he put in a written statement in which be said that he was not in possession of the land, as some time before the ownership of it was transferred from him to Fakira he had eased out a portion to Yakub Khan, Hamid Khan and Habib Khan and the rest to Sayid Abdulla. Fakira filed one document in evidence and Bhure Khan gave no evidence at all, and the Magistrate eventually passed a final order declaring Fakira to be entitled to remain in possession of the fields in dispute until evicted therefrom in due course of law.
5. Bhure Khan and the four persons named by him in his written statement as lessees of the land have now filed an application for revision of this order, solely on the ground that notices were not issued to all of them as required by section 145(1) and that no “service of a copy of the preliminary order was done as required by section (3).” Bhure Khan obviously has no ground of compliant whatever. The complaint of the other four that there was no compliance with the requirements of section 145(3) may be intended as an allegation that no copy of the preliminary order was “published by being affixed to some conspicuous place at or near the subject of dispute.” As no affidavit to that effect is filed I am bound to presume that the order was duly published in this way in addition to being personally delivered to Fakira and Bhure Khan, though I can find no report of this having been done on the record. It is however beyond doubt, and it is not denied, that the font applicants knew all about the proceedings from start to finish. The provisions of section 537 of the Code therefore apply very fully to the case, and the omission to affix a copy of the preliminary order on or near the land, if there was one, is no reason for disturbing the final order.
6. The same section would cure the defect of omission to give notice of the proceedings to the four applicants, if it were a defect. The Magistrate would certainly have been better advised if be had sent notices in the first place to all whom he knew to be claiming possession of the land, though it is to be noticed that when he passed his preliminary order he was informed of only Bhure Khan and two out of the other four applicants here. But any interested person to whom the Magistrate in his discretion does not direct the notice to issue, or any such person of whose interest the Magistrate is unaware, can always intervene under section 145(5), and it is specially to safeguard the interests of such persons that section 145(3) was enacted. Here even if all the provisions of that sub-section were not carried out, the four applicants had full knowledge of the proceedings. They have in fact given one more instance of the universal acceptance of these proceedings as a civil suit concerned only with the right to the land, by intentionally abstaining from intervention so as to get the final order set aside on a legal technicality not affecting the merits of the case in any way. This is the more patent from the fact that Bhure Khan joined in the application to this Court indeed it is by no means improbable that he is the only real applicant. In these proceedings we are concerned primarily with the danger of a breach of the peace and the taking of prompt measures to prevent it; the question of actual possession even is entirely subsidiary. The application for revision is rejected.
7. Application rejected.