1 The facts which gave rise to the application upon whichthis Rule was granted are shortly these: The land in dispute covers an area ofover 200 bighas and was the subject of a proceeding between two sets ofzemindars, called respectively the Kharoria and Shahapur Babus. An order wasmade in favour of the Kharoria zemindars under Section 145 of the Code ofCriminal Procedure. A civil suit was then brought by the Shahapur zemindars inrespect of the lands in question, and they succeeded in obtaining a decreetherefor. They obtained symbolical possession under their decree and thenproceeded to give pottahs to various people, who are now grouped as secondparty in the proceedings before us. The first party is one Ejaharuddi, and heclaims to have been, since a long time, in occupation of the lands in dispute.He presented a petition to the Deputy Magistrate on the 7th April, 1900, inwhich he stated that he was the tenant of the Kharoria zemindars in respect ofthe lands in dispute, and that he gave evidence in their favour, but since theShahapur zemindars had obtained possession, he was willing to attorn to them;but that they are trying to oust him of his possession through members of thesecond party. The petition was referred to the police for enquiry, who made areport to the effect that, in consequence of these disputes, there was anapprehension of a breach of the peace. Upon the aforesaid petition and report,the Sub-Divisional Officer, on the 12th April last, directed proceedings underSection 145. On the 18th May a proceeding was drawn up against Ejaharuddi, whowas made the first party and against the various persons, who had obtainedpottahs from the Shahapur zemindars, who were made the second party. On the 3rdJune one Ismile Munshi came in and presented a petition to the effect that hewas entitled to the land in dispute jointly with Ejaharuddi. Accordingly healso was made a party, and on the 18th June the former proceeding was cancelledand a fresh proceeding was drawn up with Ismile as the third party.

2 The first, second and third parties filed their statementsin accordance with the directions given to them. The second party stated that,since their zemindars had obtained possession of the lands in dispute and hadgiven them pottahs, they were in possession of these lands under separatedocuments from separate sets of the Shahapur zemindars and that there was noconnection between the several plots so held by them separately. They alsocontended that as the Shabapur zemindars claimed possession of these lands,they, as well as the Kharoria zemindars, were necessary parties to theproceedings. The Magistrate did not make the zemindars parties to theproceedings, but, on the 24th August, made an order under Section 145 in favourof the first party, Ejaharuddi. The second party thereupon applied to thisCourt and obtained the Rule now before us.

3 The three points urged in this Court are: first, that theShahapur zemindars were necessary parties to the proceedings and, they, nothaving been joined, the order under Section 145 is bad; secondly, that,inasmuch as the dispute refers to various plots of land held by differentpersons grouped under the head of second party under different titles and underdifferent allegations, there ought not to be one proceeding or oneinvestigation, and that therefore the order is bad. The third ground is thatthe order directing that Ejaharuddi and Ismile Munshi, the first and thirdparties, do retain possession of these lands jointly in equal moieties is animproper order. The learned Counsel, who appeared on behalf of the first party,in showing cause, contended that none of these points raised any question ofjurisdiction, and that, inasmuch as, since the amendment of the law, the powerof this Court to revise orders under Section 145 is confined to questions ofjurisdiction, we ought not to interfere with the present order. Ordinarilyspeaking, an objection based upon non-joinder of parties does not involve aquestion of jurisdiction, but in oases arising under Section 145 the questionrelating to jurisdiction depends upon the provisions of that section. Itappears to us that under Section 145 of the Code of Criminal Procedure aspecial jurisdiction is vested in the subordinate criminal Courts under specialcircumstances and for a special purpose. When either the special circumstancesdo not exist or when the order made under Section 145 does not attain thepurpose, for which the jurisdiction is created, then the special jurisdictionvested under that section falls to the ground. It is sufficient to point outthat the circumstances under which the jurisdiction springs up arecircumstances which give rise to an apprehension of a breach of the peace, and,if there is no apprehension of a breach of the peace, of course there is nojurisdiction to make the order. Again it seems to us that the purpose theLegislature had in view was the prevention of a breach of the peace. If thatobject is not attained by an order purporting to be made under Section 145, itmust be taken to have been without jurisdiction. Now, in the present case therewas undoubtedly an apprehension of a breach of the peace, and, so far as thefirst part of the section is concerned, the Court had jurisdiction to takecognizance of the matter. The second part has reference to the proceedings inCourt instituted for the purpose of attaining a definite object, namely, toprevent a breach of the peace. We think the present case falls exactly withinthe principle laid down in Laldhari Singh v. Sukdev Narain Singh I. L. R.(1900) Cal. 892. It was attempted to distinguish that case from the one beforeus. In Laldhari Singhs case a certain set of tenants were disputing about thepossession of a particular piece of land claiming to hold it under one set oflandlords, whereas another set of tenants claimed to hold the same land underanother set of landlords. A proceeding was first started, in which the tenantswere made parties, regarding the possession of the land. It was afterwards alteredinto one, in which the dispute was stated to be regarding the collection ofrent as between the two sets of landlords. In this latter proceeding thetenants were not made parties. It was held there, that in altering theproceeding, the Magistrate had wrongly exercised his jurisdiction. That was onepart of the case. It was also held that the Lower Court was wrong in not makingthe tenants parties to the proceedings, inasmuch as they were persons concernedin the dispute and their presence was necessary for the purpose of preventing abreach of the peace, which was apprehended. Stanley, J., in his judgment pointsout that "the duty of the Magistrate was to deal with the dispute as itreally was, namely, a dispute between one set of zemindars and their tenants onthe one side and Anr. set of zemindars and their tenants on the other, andaccordingly to maintain in possession according to their respective interest,the zemindars and their tenants, whom he found on satisfactory evidence to havebeen in actual possession at the date of the order, if the evidence satisfiedhim that any of the parties to the dispute was in such possession." Thenafter referring to the cases on the point he went on to add "that theorder is calculated to operate to the prejudice of the first-party and theirtenants, appears to me to follow from the fact that all disturbance ofpossession of the Second party is prohibited by this order." The necessityof bringing into Court all the parties concerned in the dispute is pointed outagain in p. 915. "But here two rival sets of tenants holding under twodifferent sets of zemindars were contending about the actual possession of astrip of land. There was no question as to the collection of rent at all. Thedispute, pure and simple, was, which set of tenants was in actual occupation ofthe land. The tenants thus were the parties directly concerned in the dispute.If the tenants of the first party were in possession, then the latter were inpossession through them (to use the Sub-Inspectors language). If the tenantsof the Narga Babus were in possession, then these zemindars were in possessionthrough them. It will be seen, therefore, that, whereas the tenants weredirectly concerned in the dispute, the zemindars concern was of an indirect character.The presence of the tenants was thus essentially necessary for the proper andeffectual decision of the case. "In the present case it is admitted thatthe Shahapur zemindars obtained symbolical possession from the Court and werein possession through their tenants, who had given them kabuliats. From thevery objection pressed before us it seems that they were necessary parties tothis proceeding. It was stated by Ejaharuddi that he had long occupied theland, but that the Shahapur zemindars were trying to do away with hispossession by means of persons, to whom they had given pottahs, in other words,the second party. If that be so and that seems to be the case of the firstparty, it is quite clear that the dispute is not put an end to by merely makingan order against the second party, for the zemindars are in no way bound bythat order. They can go upon the land at any moment or they may give pottahs toanybody else they like with the object of retaining possession of the land. Thetenants, against whom the order has been made may abide by it, but that in noway puts an end to the dispute and in no way prevents the apprehension of abreach of the peace, the purpose for which alone the law contemplates aproceeding of the special character provided for in Section 145. We are ofopinion, therefore, that this order is bad for non-joinder of the Shahapurzemindars. We do not think it necessary to express any opinion on the otherquestion, upon which this Rule was granted. We think that the present ordermust be set aside and we set it aside accordingly. This order, however, willnot stand in the way of the Magistrate, if he considers that there is still anapprehension of a breach of the peace, to take such steps as he may be advised.

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Anesh Mollah and Ors. vs. Ejaharuddi Mollah and Ors.(18.01.1901 - CALHC)