Full Judgment
Prinsep, J.
1. There was a dispute between the parties who were related to one another, and on this, after having made certain inquiries, the Sub-Divisional Magistrate passed the following order: 'The applicant must not plough more than 12 annas of the land.' In coming to this conclusion, as we learn from the Sub-Divisional Magistrate's explanation, he has taken upon himself to decide questions of fact and questions of Mahomedan law, or in other words to exercise the functions of a Civil Court, so as to satisfy himself as to what are the actual rights of the parties to the lands in dispute. There were no proceedings taken under Section 145 in order to ascertain the actual possession of the land, nor, we may observe, is there anything to show that there was any probability of a breach of the peace. The proceedings before us, so far as they go, show that the parties are quarrelling regarding their rights to certain property which is claimed on one hand, to be joint in certain shares, and on the other hand to exclusively belong to the other party. It is contended before us by the learned pleader, who appears against the rule, that the order is one within Section 144 of the Code of Criminal Procedure, inasmuch as it directs certain persons to abstain from an act, that is, from ploughing more than 12 annas share of certain lands. In our opinion, however, it cannot properly fall within that section, for an order under Section 144 can only be passed on some emergency, and it has effect for only two months. The present order in its operation will have effect and was intended to have effect, until the parties went to the Civil Court to settle their disputes, and no emergency is even suggested. The order therefore is entirely without any authority of law, and must be set aside.
2. The Magistrate, we observe, represents that he is in a difficulty how to deal with such a matter and he states: If I had only consulted my own convenience, I should without hesitation have allowed the parties to fight on as the consequent cases of rioting or murder would have required far less expenditure of time and trouble than has been necessary for the purpose of preventing it. In case my order is set aside, I hope the Hon'ble Judges will be so good as to suggest what could have been the proper procedure, as the Criminal law does not, to my mind, provide any clear rule on the subject of what is to be done, when a dispute as to the amount of their shares breaks out between the sharers in what had been joint property, and the case is one which to judge from my short experience arises pretty frequently.'
3. In dealing with this matter, as he has done, we give the Magistrate full credit for a desire to do his duty, and, if possible, to end this dispute which might lead to further trouble. But the Magistrate has exceeded his powers and he has interfered in a manner which was quite unnecessary. It is not because private parties or members of the same family dispute regarding their respective rights to land or crops, that the Magistrate is called upon to interfere. If he has good reason to believe that such a dispute is likely to cause a breach of the peace, the law enables him to ascertain and maintain actual possession. But that is not the case here. The Magistrate did not take proceedings under Section 145; and even if the Magistrate had taken such proceedings he was not competent to do more than to determine actual possession. He could not, as he has done, determine rights of parties under Mahomedan law. Such questions should be left to the Civil Courts. We would also point out that the proper course for a Magistrate to take when it is shown that members of the same family are inclined to break the peace is to bind them all over to keep the peace. The law, therefore, gives the Magistrate ample powers in respect of a dispute such as the present. In this case, the Magistrate has failed to exercise such jurisdiction, and he has acted in a manner altogether beyond his powers. His order must be set aside as without jurisdiction.