Judgment R.P. Gupta, J.: 1. This revision petition is directed against order dated 7.12.91 passed by Sub-Divisional Executive Magistrate, Contai in Miscellaneous Case No. 262 of 1991. By that order, the learned SDEM appointed B.L. and L.R.G. Contai (1) as Receiver in respect of lands shown at para 'Ka', 'Kha', 'Ga' and 'Gha' of the schedule, under s. 146(2) of the Criminal Procedure Code and attached the said lands until further orders as per provision of s. 146(1) Cr.P.C. 2. The petitioners, who are 36 in number, claim that they are bargadars of this land and in its possession and cultivation. They claim that the lands detailed in Paras 'Ka', 'Kha', 'Ga' and 'Gha' of the schedule have already been vested in the State by the competent authority and these petitioners are in possession as bargadars and they are so recorded in record of rights, that the opposite party No. 1 was not in possession of this land either before vesting or after the order of vesting while the petitioners are in possession as bargadars since before the order of vesting. So, the order of vesting does not affect the rights of these petitioners. It was urged that respondent No.1 had filed a civil suit No. 249 of 1984 in respect of these lands and prayed for appointment of a Receiver. The civil court of Munsif rejected their prayer. 3. Respondent No.1 approached the District Judge in appeal, but there also they failed. Both these courts observed that the petitioners are bargadars. Ultimately this suit was dismissed for non prosecution. The Respondent No.1 filed a writ petition being C.R. No. 14805(W)-14807(W) of1979. A Single Bench of the High Court passed an order of injunction against the present petitioners in favour of respondent No.1 but the petitioners took an appeal to a Division Bench of the Court. It was FMAT No. 2867-2869 of 1986. The Division Bench vacated the order of injunction against the petitioners. The respondent No.1, however filed another writ petition No. C.R. 9544(W) of 1984 and a Single Bench of this court appointed a Receiver in respect of the land in question, but on appeal, by petitioners to a Division Bench of this court, the Division Bench in FMAT No. 3812 of1884 set aside the order of the Single Bench on 29th Nov., 1984. It is asserted that the respondent no. It is asserted that the respondent no. 1 had moved an application under s. 144 Cr.P.C. before the Sub-Divisional Executive Magistrate who converted the proceedings to s. 145 Cr.P.C. and passed the impugned order. It is asserted that the Sub-Divisional Executive Magistrate has failed to consider the facts and circumstances as disclosed above while passing the impugned orders, by relying on a report of officer-in-charge of Contai police station and by not referring the case under s. 21(3) of the West Bengal Land Reforms Act to a Revenue Officer as per s. 18 of that Act. 4. I have heard the learned counsel for both sides. It may be noticed that respondent No. 1 is not a party, a single juristic person. In fact, he has been made party in his own capacity and as Shabait of three deities, namely, Shri Iswar Madan Gopal, Madan Mohan Jew Thakur, Nare Singh Jew Thakur, Shri Iswar Chyatanna Mahaprabhu Thakur. I have gone through the copies of the judgment of the Munsif, the Additional District Judge in an appeal, the copies of the various judgments of the High Court in appeals against orders passed by Single Bench of Civil Writs. I have also gone through the judgment of an Appellate Authority, that is District Land and Land Reforms Officer, Tamluk in appeal case no. 17T•of 1979, under s. 54 of West Bengal Land Reforms Act. This appellate order is dated 27.3.92. The questions which arose before the Learned B.L. and L.R.O., Tamluk were: Whether the above three deities and Bishnu Pad a Das Adhikari as the shebaits could retain for themselves lands separately as separate units under s. 14T of West Bengal Land Reforms Act. The D.L. and L.R.O. Tamluk, in his order in appeal held that the three deities constituted one family, being in one complex and they could retain land only as one unit and also that the shebiat could retain as separate unit as held by B.L. and L.R.O. So, it was held that only seven acres of land could be retained by this group of persons (i.e. Deities) and any lands already transferred by them was also to be taken into consideration. The case was remanded to the Sub-Divisional Land and Land Reforms officer for determination afresh under s. 14T(9) of the W.B.L.R. Act, as to how much lands were held by the appellants and how much is to vest in the State. This order was dated 27.3.92. I may note here that this order and a judgment of a civil court and the High Court were filed in the present proceedings by the revision petitioners along with the supplementary affidavits on 2nd Nov. 1995. 5. In the impugned order, the learned SDEM had found that on perusal of the documents and police report, the bargadar, in respect of the disputed plots of land, could not be determined, the question of vesting of land in the State is still pending. He noticed that there are observations of different courts regarding existing of bargadars in these plots of land, but it could not be ascertained from records actually who are the actual bargadars and in respect of which plots of lands. He found that there was existing apprehension of imminent breach of peace. In this view of the matter, since possession over land could not be immediately determined, the Magistrate proceeded to attach the land until further orders under s. 146(1) Cr.P.C. and appointed Block Lands and Land Reforms Officer, contai, as Receiver of lands scheduled as 'Ka', 'Kha', 'Ga' and 'Gha' and with direction to the Receiver to harvest the paddy by engaging labour and to deposit the sale proceeds with the Magistrate after meeting all the costs of the harvesting. 6. The contention of the learned counsel for the petitioners is that the order is illegal as it ignores all the observations of the civil court up to the stage of Additional District Judge and of the High Court in appeal from writ jurisdiction. The civil court or even the High Court did not appoint Receivers. The retention of more lands by the respondents was set aside by District Land and Lands Reforms Officer in appeal and the proceedings about vesting of land were remanded back to Sub-Division Land and LRO with the observation that more Land was liable to be vested and land could be retained only on one unit for all the deities. In spite of this, now, by the impugned order, the opposite party no. In spite of this, now, by the impugned order, the opposite party no. 1 has gained by obtaining the attachment of land and appointment of Receiver, what they could not achieve in all the earlier litigations. 7. I may note here the observations of the Division Bench of Calcutta High Court in FMAT No. 3812 of 1984 in the judgment dated 29th November 1984. Their Lordships noticed that in the writ application, out of which the appeal arose, no prayer had been made for appointment of Receiver about the disputed properties. Their Lordships observed on merits of the matter. "As it turns now, this is dispute between two private parties as regards possession and title of the writ properties which could be hardly decided in a satisfactory manner by the writ court. Both parties are entitled to such an alternate remedy in a court which may recorded oral and documentary (torn) evidence. In fact, the substance of the writ application is that the private opposite parties to the writ application was committing breaches of peace and the appellate authorities were not performing their statutory duties. In substance the relief sought for in the writ application is for compelling the appellate authorities to do their statutory duties, we make it clear that we are not deciding on the merits of the claim and contention of the parties and therefore, nothing observed by as would prevent any party from filing appropriate proceeding for relief by way of injunction or appointment of Receiver as they may be advised to make. In order to enable the parties to seek alternate remedy, we restrain both sides from harvesting the paddy from the suit land for a period of ten days from date, or till any appropriate order is made by an appropriate court, whichever is earlier". Their Lordships directed that Receiver appointed by the Single Judge are directed not to take further steps. This order of the Division Bench was passed on 29th Nov. 1984. 8. It is notable that the suit before the Munsif First Court, Contai, District Midnapore was filed by Bishnu Pad a Das after this order of the Division Bench and on 20th July 1985, the learned Munsif declined the prayer for appointment of Receiver. This order of the Division Bench was passed on 29th Nov. 1984. 8. It is notable that the suit before the Munsif First Court, Contai, District Midnapore was filed by Bishnu Pad a Das after this order of the Division Bench and on 20th July 1985, the learned Munsif declined the prayer for appointment of Receiver. The Munsif observed that prima facie he finds that the possession of land has been taken over under s. 10(1) of W.B.E.A. Act and that the land was under possession of bargadars who are not parties to the suit. The Additional District Judge in his judgment dated 23.12.85 held that in every view of the matter, the learned Munsif was justified in rejecting the prayer for appointment of the Receiver. The bargadars have not been a party to the suit, only two persons were made respondents. The court found that these two persons had no right, title or interest in the suit land. The learned Additional District Judge noticed that it was plaintiffs case that there were bargadars in the suit land under him. The court found that there was no prima facie case of possession of the suit land entirely by plaintiffs and that the legality, propriety and correctness of vesting was the subject matter of the suit itself and any observation on the same could amount to pre-judgint that vital issue. He noticed that there was no tangible evidence to even prima facie show that those bargadars were creating difficulties to the plaintiffs with respect to the disputed lands. 9. The question is whether under the circumstances noticed by various courts and considering the fact that the question of extent of vesting of land of the three deities was still pending consideration before the revenue authorities, it was just and proper for the Executive Magistrate to appoint Receiver of the property by attachment of the same. Neither the copy of the Police report nor copies of any revenue record of rights have been placed before this court for my perusal. But if the judgments of the civil court are any guide, which these must be taken regarding facts, then it appears that in earlier litigation the parties were other than bargadars on the one side and the deities and three shebaits on the opposite side. But if the judgments of the civil court are any guide, which these must be taken regarding facts, then it appears that in earlier litigation the parties were other than bargadars on the one side and the deities and three shebaits on the opposite side. When the previous proceedings possession of a number of bargadars was found, and they are noticed by courts and not contested by the present opposite party, shebaits, Can the allegation of possession of shebaits and their alleged apprehension of dispossession raise a situation of imminent breach of peace. It appears clear that the learned SDEM while passing the impugned order did not apprise himself of all the facts and circumstances and acted only on the allegations of the shebaits. The procedure of attachment and appointment of Receiver in a proceeding, under Ss. 145 and 146 Cr.P.C. is not meant to disturb existing peaceful possessions or existing peaceful cultivations. The Magistrate passing the order has to apprise himself with prima facie facts of possession. The present approach made has been legally erroneous. The Magistrate has to guard against abuse of the process, on misrepresentation by any of the parties. The Magistrate• was swayed by the fact that the proceeding of vesting were still pending and there was no documentary evidence regarding extent of vesting. At the same time, the Magistrate noticed that there were observations of different courts regarding existence of bargadars in those plots of land. However, he was further stayed by the fact that, who the actual bargadars were, was yet to be ascertained. This could not be a ground to disturb possession. By process of attachment or appointment of Receiver. The Magistrate could not find that the lands were not at all in possession of bargadars or who were prima facie in possession. He only expressed the view that the names of the bargadars were not clear. 10. I am of the view that under these circumstances, it was improper and illegal to pass an order of attachment and appointment of Receiver, although the order of enquiry under s. 145 Cr.P.C. could be passed. 11. He only expressed the view that the names of the bargadars were not clear. 10. I am of the view that under these circumstances, it was improper and illegal to pass an order of attachment and appointment of Receiver, although the order of enquiry under s. 145 Cr.P.C. could be passed. 11. One contention of the learned Counsel for the petitioners before me was that since the question involved was as to who are the bargadars the Magistrate should have referred the matter to revenue authorities concerned under s. 21(3) of the West Bengal Land Reforms Act read with s. 18 of that Act. This provision is in following terms: "Section 21(3): If any question as to whether a person is or is not a bargadar arises in the course of any suit, case appeal or other proceeding, before any Civil or Criminal Court, the court shall refer it to the officer or authority mentioned in sub-so (1) of s. 18 for decision and such court shall dispose of the suit, case, appeal or other proceedings in accordance with the decision communicated to it by the officer or authority, mentioned in sub• s. (1) of s. 18 to whom the question was referred. 12. Before an Executive Magistrate taking cognizance of a proceeding under s. 145 Cr.P.C. the question for adjudication is whom is in possession and not in respect of his title. The title may have its evidentiary value in so far as, if no other evidence comes, then owner is deemed to be in possession. Such adjudication is to be made by an Executive Magistrate on taking evidence in the manner prescribed as to who were in possession on the date of his order. He is to declare that possession and if a party has been, forcibly or wrongfully dispossessed within two months, since before the report of the police office or the other information to the Magistrate or thereafter during the proceedings the Magistrate may treat such party to have been in possession on the date of his order. The Magistrate can restore possession of such party and forbid the other parties from disturbing that possession. This becomes clear from perusal of clauses 4 and 6 of s.145 Cr. P.C. 13. The Magistrate can restore possession of such party and forbid the other parties from disturbing that possession. This becomes clear from perusal of clauses 4 and 6 of s.145 Cr. P.C. 13. In order to act u/s 146 (1) Cr.P.C., the Magistrate has to decide that none of the parties was in possession or that it is not possible to satisfy as to which of them was in possession. If that is the situation and the case of is of emergency with regard to breach of peace, the Magistrate orders attachments until a competent court determines the right of the parties with regard to the person entitled to the possession. 14. As per s. 14.6 (2), the Magistrate can make arrangements for looking after the property or if he thinks fit, to appoint Receiver, if no such Receiver has been appointed by a civil court in respect of the disputed property. 15. In the present case, it appears clear from a perusal of the impugned order that the Magistrate had before him the observations of the various courts including civil court and High Court. These observations were passed on prima facie findings and they noticed that bargadars were in possession and the Id. Executive Magistrate has overlooked regarding its real impact on his decision, whether to order attachment or not. This observation that he was uncertain as to who are the bargadars, may give him cause to start proceedings u/s 145 Cr.P.C. but not an order u/s 146 (1) and 146 (2) Cr.P.C. such a dispute was not inter se between any bargadars. 16. Considering all the aspects of this case as disclosed above and in the light of the circumstances preceding the order in question, I am of the clear view that the order of attachment and appointment of receiver was bad in law and is liable to be set aside, but the order of drawing of a proceeding under s. 145 Cr.P.C. cannot be faulted. The Revision petition is partly allowed. Copy of this judgment be sent to the concerned Magistrate. Parties will appear before the concerned SEDM, Contai on 11.1.96:1 Order of attachment and appointment of Receiver is set aside. Revision petition partly allowed.