1. This Rule was obtained by the petitioners against an order drawing up proceeding under section 145, Cr. P. C. By Mr. A. Maleq, Sub-Divisional Magistrate of Sunamganj.
2. The Rule is opposed by the opposite-party.
3. The facts leading to the present petition are that opposite-- party Md. Ayubullah sent a petition to the Sub-Divisional Magistrate, Sunamganj stating that he was in possession of 84 kedars land, as described in the schedule, in his share of the paternal lands by letting out to his Bhagidars but his brother petitioner No. 1 Askir Mia and his sons petitioner No. 2 and others in collaboration with some villagers were creating disturbances and were trying to dispossess his Bhagidars on account of which there existed serious apprehension of breach of the peace. On receipt of the aforesaid petition, a report was called for from the officer-in-charge of Derai P. S. Who submitted a report but the petitioner No. 2 filed a naraji petition against the report, claiming the land to be in their exclusive possession. On perusal of the report and naraji petition and on being satisfied that there was chance of a breach of the peace, as both the parties were claiming possession over the land in question, a proceeding under section 145, Cr. P. C. Was drawn up on 14-1-70 by the Sub-Divisional Magistrate, who attached the land, appointed a receiver for managing the property and asked the parties to file written statements. Against the aforesaid order a revisional application under section 438, Cr. P. C. Was filed before the Sessions Judge of Sylhet who rejected the same. Thereafter the petitioners obtained this Rule.
4. Mr. Abdul Wadud Chowdhury appearing on behalf of the petitioners contended that the parties in this cast are co-sharers of their ancestral properties comprising the disputed lard and since there was no partition between them of their joint property, the learned Sub-Divisional Magistrate committed air illegality to drawing tip a proceeding under section 145, Cr. P. C. His further contention is that if the Magistrate found that there was apprehension of the breach of the peace he should have drawn up proceeding under section 107, Cr. P. C. Instead of under section 145, Cr. P.
5. C. He has tried to support his argument by citing decisions in the cases of Makhan Lal Roy and another v. Barada Kanta Roy (11 C W N 512) and Abdus Salam Miaji v. Abdul Kadir Bepari (PLD 1967 Dacca 715).
6. Mr. Ahmadur Rahman Khan appearing on behalf of the opposite-party, on the other hand, contended that since both the parties in this case were claiming possession in the disputed land and there was apprehension of a breach of the peace, the learned Magistrate was justified irk drawing up a proceeding under section 145, Cr. P. C. To' prevent such apprehension and to ascertain the factum of possession, and it was immaterial whether the parties happen to be co- sharers. He has placed before me a decision in the case of Nazu Meah and others v. A. S.; Safiuddin and others (8 D L R 408). Before advert to the three cases cited before me on behalf of the parties, I think it would be proper to refer to the provisions of subsection (1) of section 107, Cr. P. C. And subsection (1) of section 145, Cr. P. C. Subsection (1) of section 107, Cr. P. C. Is as follows: "107(1)-Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class is.
7. Informed that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful at that may probably occasion a breach of the peace or, disturb the public tranquillity, the Magistrate if in his opinion there is sufficient ground for proceeding may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period not exceeding one year as the Magistrate thinks fit to fix."
8. Subsection (1) of section 145 is as follows : "145-(1) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute, likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a the to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the facts of actual possession of the subject of dispute."
9. It may be noted that while the words of section 145, are mandatory those of section 107, are discretionary. Section 145, Cr. P. C. Provides a remedy for prevention of a breach of the peace arising out of claims of contending parties over immovable properties. The words "a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof" used in subsection (1) are wide enough to cover all kinds of, dispute, not only disputes as to the fact of possession but those as to the right to possess or right to own or use immovable property if they are likely to cause a breach of the peace. Reference in this connection may be made to the judgment of Munir, J. (as his Lordship then was) in the case of Fateh Muhammad Khan Tiwana v.
10. The Crown and another (51 Cr., L J 55). The jurisdiction of the Magistrate to draw up a proceeding under section 145 of the Code of Criminal Procedure depends on the existence of a dispute concerning any land etc. Likely to cause a breach of the peace. The section contemplates a dispute between, to parties each of whom asserts claim of exclusive possession in the land, and it is the duty of the Magistrate in such cases to decide the question of possession by holding enquiry in accordance with the provision of subsection (4) of section 145, Cr. P. C. The section of course, has no application where the parties claim joint possession in a land. The position is, however, different where one of the parties claims to have and is actually found to have exclusive possession adverse to the other party. The mere fact that the other party sets up a title to joint possession does not then render section 145 inapplicable. A Reference in this connection may be made to the decision in the case of Sheoprasad Shrfram Marwadi v. Govindram. Hardit R.I J Marwadi and another (AIR 1940 Nag. 265).
11. In the instant case, it appears from the petition of the opposite---party Md. Ayubullah arid the naraji petition filed by the petitioners before the Sub-Divisional Magistrate against the police) report that both the parties were claiming exclusive possession) in the disputed land. The police report, which apparently appears to be the result of an exhaustive enquiry, clearly disclosed cause for apprehension of serious breach of the peace concerning the possession of the disputed land. In the circumstances the conditions requisite' for exercise of jurisdiction under sub-section (I) of section 145, Cr. P. C. Were present. The contention of Mr. A. W. Chowdhury that the learned Sub- Divisional Magistrate had no jurisdiction to draw up proceeding as the property in dispute was joint between the parties cannot be accepted for the simple reason that neither party appears to claim the same as joint property.
12. I will now refer to the three cases cited by the, learned Advocates. In the case of Makhan Lal Roy and another v. Barada Kanta Roy it was found, upon an enquiry under subsection (4) of section 145, Cr. P. C., that the property in dispute was to huts constructed in a compound common to both parties, but one of the parties was declared to be entitled to possession of the huts. It was held by the High Court that the land in which the huts stood being in joint possession of the to disputants and there having been no partition of the homestead land it could not be said that the dispute was by to opposing parties having adverse rights to exclusive possession, of the land. In the other case namely the case of Abdus Salam Miaji v. Abdul Kadir Bepari the property in dispute was the partnership business wherein neither party claimed or could have exclusive possession and in the circumstances it was held that a proceeding under section 145, Cr. P. C. Was not sustainable in law.
13. Obviously, the facts in the to cases are entirely different from the facts of the present case and the decisions have no relevancy in this case. The case of Nazu Meah and others v. A. S. Safiuddin and others referred to- by Mr. Ahmadur Rahman Khan fits in with the facts of the present case. In that case also the propriety of drawing up a proceeding under subsection (1) of section 145, Cr. P. C.
14. Was questioned on the ground that the parties were co-sharers but this contention was not accepted. It was held therein that if there is any dispute between to adverse claimants each of whom claims exclusive possession and there is apprehension of breach of the peace, then the Magistrate has clearly jurisdiction to draw up a proceeding under this section no matter that they happen to be co-sharers. It was further held that if at the conclusion of the enquiry the Magistrate finds any of the parties to have been in possession on the date of the proceeding, then he is to declare that party to be entitled to possession. If he finds neither party in possession or if he is unable to decide which of the contesting parties was in such possession, then he can proceed under section 146 and attach the property until a competent Court has determined the rights of the parties thereto or the persons entitled to possession therein. It was also observed in that case that if at the conclusion of the enquiry the Magistrate finds the contending parties to be in joint possession on the date of the proceeding he can also attach the property under section 146, Cr. P.
15. C. Since words "unable to satisfy himself" in section 146, cover the case of to joint owners both in joint possession. I find myself completely in agreement with the views expressed above.
16. Accordingly I find that there is no merit in the contentions raised on behalf of the petitioners. The Rule is discharged. The Magistrate is directed to proceed with the case in accordance with the law.
17. Let the records be sent down expeditiously. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.