An order of attachment under Section 146 (1) of the Cr.P.C. cannot be passed in respect of property in joint possession of parties.

K. P. MOHAPATRA, J.

( 1 ) THIS revision is directed against the order passed by the learned Additional Sessions Judge, Ganjam reversing the order passed by the learned Sub-Divisional Magistrate, Berhampur who passed orders under S. 146 (1) of the Criminal. P. C. ('code' for short) attaching the disputed land.

( 2 ) THE petitioners were members of the first party and the opposite parties were members of the second party in the proceeding under S. 145 of the Code. There were some third parties before the courts below who were not impleaded as parties in the Criminal Revision. The facts in brief are as follows :- bharat, Dandapani and Maharga were brothers and members of a Hindu joint family. They instituted Title Suit No. 2 of (975 in the Court of the Subordinate Judge, Aska, for a decree to declare their possession in respect of Survey No. 159 in khata No. 28-Ka relating to 8 acres and Survey No. 159 in Khata No. 28 relating to 7 acres of land in village Jura Samantarapur within Pattapur Police Station, Ganjam. During pendency of the suit Bharat died and was substituted by his legal representatives. A decree was passed in the suit on 23-11-1976. The petitioners are the heirs of late Bharat. Opposite parties 1 and 2 are the two other brothers and opposite parties 3 to 8 are their sons. Execution was levied in E. P. No. 13 of 1977 and opposite parties 1 and 2 obtained delivery of possession of the disputed land through court on 9-7-1977. According to the petitioners, after the settlement operation, there was a division of the disputed land and they were in exclusive possession of 8 acres thereof. The opposite parties demanded a sum of Rs. 3000/- from them and as they declined, they created disturbance into their exclusive possession of a part of the disputed land giving rise to apprehension of breach of peace. The case of the second parties is that as evident from the decree in Title Suit No. 2 of 1975, the disputed land is the joint family property of both the petitioners and the opposite parties. In E. P. No. 13 of 1977 opposite parties 1 and 2 obtained delivery of possession of the disputed land and have been in exclusive possession thereof. The case of the third parties was that they had raised paddy crops on about 12 acres out of the disputed land and were in exclusive possession thereof.

( 3 ) THE learned Sub-Divisional Magistrate found as follows : -". . . . . . I am of the opinion that the case is of a civil nature and as such all the parties are directed to establish their-rights in a proper and competent court. As so many persons are claiming their possession as encroachers over the suit land, it will not be proper simply to drop the proceeding without making any arrangement to prevent breach of peace that may arise in future. As such I do hereby attach the schedule lands as required u/s. 146 (1) Cr. P. C. The Custodian (R. S. Pattapur) is appointed as Receiver who will take care of the schedule lands. . . . . . . "against the aforesaid order the opposite parties preferred a revision which came for disposal before the learned Additional Sessions Judge who recorded contradictory findings. After having held that the proceeding under S. 145 of the Code was misconceived on account of joint possession of the disputed land by the petitioners and the opposite parties, on the basis of the result of E. P. No. 13 of 1977, he declared that opposite parties 1 and 2, who obtained delivery of possession of the disputed land through court, were in possession of the disputed land.

( 4 ) MR. Sinha, appearing for the petitioners, did not dispute the proposition that in respect of land in joint possession of parties a dispute under S. 145 cannot be raised. But if by amicable settlement, one of the parties is in exclusive possession of a portion of the disputed land in respect of which there is cause for apprehension of breach of peace, provisions of S. 145 can be applied. According to him, in this case, although there was no partition