Imrit Rai and Others vs Jayanand Pd. and Others

B.P. Sinha, J.—This application is directed against the final order dated the 5th August, 1969, passed in a proceeding u/s 145 of the Code of Criminal Procedure, declaring possession of the first party Jayanand Prasad and others over the disputed lands. The dispute relates to 2 bighas, 5 kathas and 1 dhur of land situated in village Sheonagar within Police Station Raxaul in the district of Champaran bearing various plot numbers appertaining to Khata no. 122. The disputed lands originally belonged to Ramphal Pandey. Ramphal Pandey had four daughters and a son, namely, Singhasan Pandey. His son and three daughters died daring his life time. Chandar Kuer, opposite party no. 4 is the living daughter of Ramphal Pandey, Fuldeo Tewari and Dharamdeo Tewari, opposite party nos. 2 and 3 respectively are the sons of Chandar Kuer. Ramphal Pandey died in 1940 leaving behind his widow Rimjharo Kuer, his daughter-in-law Hazarpati Kuer (widow of Ram Singhasan Pandey) and daughter Chandar Kuer and her two tons, Fuldeo Tewari and Dharamdeo Tewari. Ramjharo Kuer also died some time in the year 1957.

The case of the first party is that Hazarpati Kuer, daughter-in-law of Ramphal Pandey, also died on 10.6.1961 leaving behind Chandar Kuer and her two sons, as the only legal heirs of the properties of Ramphal Pandey. It is stated that after the death of Hazarpati Kuer, Chandar Kuer and her two sons inherited the properties and came in possession thereof. On 24.3.1954, Chandar Kuer and her two sons sold the disputed lands to Jayanand Prasad, opposite party no. 1, by a registered sale deed for a consideration of Rs. 2,000/- and put the purchaser in possession thereof. Since then, Jayanand Prasad, opposite party no. 1, has been coming in peaceful possession of the disputed lands.

The case of the second party is that after the death of Ramphal Pandey, his widow, Ramjharo Kuer, came in possession of the entire properties. This Ramjharo Kuer executed a deed of gift on 24.10.1940 in favour of her daughter-in-law, Hazarpati Kuer with respect to 2 bighas 5 kathas and 1 dhur of land. She executed a sale deed in favour of her brother, Singhal Rai with respect to the remaining lands, which were left to her after the execution of the deed of gift. Later on Ramjharo Kuer died and Mostt. Hazarpati Kuer remained in possession of the entire gifted lands. In the year 1961 she executed two sale deeds each dated 24.10.1961, one in the name of Imrit Rai and the other in the name of Chandra Mohan Choubey, both of whom are petitioners in this revision application. On the same date, she also executed a deed of gift in favour of Smt. Phulbadan Devi with respect to a portion of the disputed land. Amri Choudhary, petitioner no. 3, is the husband and Rudal Rai, petitioner no. 4 is the father of Phulbadan Devi. It is the case of the second party that since the date of the aforesaid sale deeds and the deed of the gift, members of the second party have been coming in possession over the disputed lands.

Both the parties filed affidavits and documents in support of their respective claims on a consideration of which the learned Magistrate found possession of the disputed lands with the members of the first party and made a declaration accordingly.

Members of the second party has, therefore, filed this revision application.

It would appear that on the basis of a police report, originally a proceeding u/s 144 of the Code of Criminal Procedure, was started on 27.3.1965. That proceeding was converted into a proceeding u/s 145 of the Code of Criminal Procedure, on 22.5.1965. The proceeding was amended on 12.12.1965. On 12.7.1966. Shri B.K. Sinha, Magistrate to whose file the case was transferred referred the case u/s 146 of the Code of Criminal Procedure to the civil court for a finding on the point of possession. Parties were directed to appear before the civil court on 26.7.1966. It, however, appears from the record that the learned Munsif wrote to the Sub-divisional Magistrate that the reference order did not disclose that Shri B.K. Sinha considered the affidavits and other documents produced by the parties and applied his mind to the facts of the case and as such the reference u/s 146(1) of the Code of Criminal Procedure was incompetent and did not confer any jurisdiction on the civil court to answer the reference. The learned Munsif requested the Sub-divisional Magistrate to withdraw the reference from his Court and refer the matter again, if BO thought necessary after rectifying the defects, otherwise the matter may have to be referred to the High Court for quashing the order of reference. This letter was written in accordance with the views expressed in a decision of this Court in (1) State of Bihar Vs. Hari Mishra and Another, . Having received the letter from the Munsifs Court, the learned Magistrate passed the following orders.

The record is recalled to general file. Notice both the parties and put up on 10.1.1968 for hearing.

Thereafter, the case was transferred to the Court of Shri S.S. Sinha, Honorary Magistrate, 1st Class, for disposal. From that court also, the case was again transferred to the Court of Shri A.N. Sinha. Magistrate, 1st Class, Motibari, for disposal. It is this Magistrate, who, on a consideration of the affidavits and documents, which were on the records, gave a decision against which this revision application has been filed.

Contention of the learned counsel for the petitioner is that once a reference was made to the civil court, the Magistrate had no jurisdiction to dispose of the case himself. He should have made a reference to the civil court after rectifying the defects pointed out by the Munsif.

There is procedure for disposal of the proceeding u/s 145 of the Code of Criminal Procedure, as indicated therein. The parties are directed to put in written statement and produce documents and affidavits of the witnesses, on which they relied in support of their respective claims. Thereafter the Magistrate is to peruse the statements, the documents and the affidavits, if any, so put in, hear the parties and conclude the enquiry by deciding the question whether any and which of the parties was in possession of the disputed property on the date of the order passed under Clause (1) of the section. When the Magistrate decides that one of the parties was in possession he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom according to law and forbidding interference with such possession until such eviction. Reference to the civil court is made under such eviction. Reference to the civil court is made under certain circumstances u/s 146(1) of the Code of Criminal Procedure. Section 146(1) is as follows:--

Power to attach subject of dispute (1) If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he may attach it, and draw up a statement of the facts of the case and forward the record of the proceeding to a civil court to competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in Sub-section (4) of Section 145; and he shall direct the parties to appear before the civil court on a date to be fixed by him.

When such reference is made, the civil court is to peruse the evidence on the record and also such evidence as may be produced and after hearing the parties decide the question of possession, so referred to it. The civil court is to transmit its finding to the Magistrate, by whom reference is made and then the Magistrate is to dispose of the reference in conformity with the decision of the civil court. It would thus appear that the reference u/s 146(1) can be made only when the Magistrate is of opinion that none of the parties was in possession or when he is unable to decide as to which of them was in possession. That is to say, the Magistrate has to apply his mind to the facts of the case and make an effort to come to a decision regarding the question of possession. He cannot shirk his responsibility and refer any proceeding to the civil court without first applying his mind to the facts of the case. The reference has to be made in accordance with the provisions of Section 146(1). That is to say when the Magistrate is unable to decide the question of possession he has to draw up a statement of the facts of the case and then forward the record of the proceeding to the civil court for decision of the question regarding possession. When the reference is made in accordance with the provision of Section 145(1), the civil court gets jurisdiction to decide the question of possession. It is the duty of the civil court to record such finding. It cannot refuse to do so. There is no provision that when the reference made is competent, for any reason, the Magistrate can recall it. Once a competent reference is made, the disputed point has to be decided by the civil court and in conformity with such decision final order is to be passed by the Magistrate. But when the reference is not in accordance with the requirements of the law laid down u/s 146(1) of the Code of Criminal Procedure, the civil court does not get jurisdiction over the matter inasmuch as the reference is incompetent and as such the Magistrate, who made the reference retains such jurisdiction to deal with the matter. When such an incompetent reference is made, it is not for the civil court to act as a court of appeal and record a finding that the reference is incompetent and return the file to the Magistrate. What the civil court has to do, under the circumstances when it finds that the reference is incompetent, has been indicated in a Division Bench decision of this Court in (1) State of Bihar Vs. Hari Mishra and Another, . In that case reference was made not in accordance with the provisions as laid down u/s 146(1) of the Code. The learned Munsif, to whom the reference was made referred the matter to the High Court posing (Sic) the following:--

(1) Whether it is open for a Magistrate to refer a case u/s 146(1) of the Cr.P.C. to a Civil Court without drawing up statement of the facts of the case and without expressing his opinion that he is unable to decide the question of possession.

(2) Whether it is open for the civil court to return back the reference to the Magistrate concerned, when the reference is not in accordance with law as provided u/s 146(1) of the Cr.P.C.

(3) Whether it would be within the jurisdiction of the civil court to decide the question of possession on a reference like the present one.

These questions were answered in negative. What the civil court is to do if the reference is incompetent, has been indicated in the following observations made by this Court in that case--

Although the civil court is not competent to decide about the competence or otherwise of any reference by a Judicial pronouncement, it can nevertheless bring to the notice of the Magistrate its opinion about the incompetent nature of the reference by means of a letter and the Magistrate may recall such a reference, if he accepts the Munsif''s opinion. Such a course will save time and also the parties from unnecessary harassment in coming to the High Court.

In the result, the order of reference dated 15.2.1960 of the learned Magistrate is set aside and it is hereby quashed. The Magistrate will now proceed to dispose of the proceeding according to law, unless he decides to stay it till the disposal of the title suit, if there be any, relating to the same property and between the same parties. The learned Munsif will send back the records of the case to the learned Magistrate.

The instant case is fully covered by this decision. In the instant case also the reference was found to be incompetent. In accordance with the views expressed by this Court in the aforesaid decision, the learned Munsif requested the Magistrate to recall the reference. Accordingly the reference was recalled and thereafter the case was disposed of. It is true that in the aforesaid decision it is nowhere indicate a as to bow the Magistrate is to proceed thereafter. That is to say, it is not laid down whether the Magistrate can dispose of the case himself or make a fresh reference was incompetent, it would mean that there was no reference in the eye of law. That is to say, the case is relegated to the stage at which the order of incompetent reference was passed. At that stage the Magistrate is to apply his mind to the facts of the case and make an effort to come to a decision regarding question of possession or to make a reference complying with the requirements of the provisions of Section 146(1) of the Code. It was for the Magistrate to decide what course he ought to have adopted. In this connection a reference can be made to a decision in (2) Mithila Saran Singh and Another Vs. Nihora Singh and Others, . In that case in the circumstances more or less similar to those of the instant case the following observations were made:

...In other words, in the present case, there was no valid reference to the civil court at all so as to have clothed it with jurisdiction to give its finding on the question of possession. In the absence of jurisdiction having been conferred upon the civil court in accordance with law, the learned Munsif could neither record his finding nor make any direction to the learned Magistrate as to what course he should adopt after the return of the records from the civil court.

......Therefore, after the receipt of the record from the civil court, it was for the Magistrate to decide as to what course he ought to adopt, whether to make a proper reference to the civil court u/s 146(1) of the Code or to proceed u/s 145(4).

Counsel for the petitioner, however, has relied upon a decision of this Court in (3) Satya Narain Roy V. Chhatisi Roy and others (1965 B.L.J.R. 8). In that case it was observed thus:

If I am correct in the view which I have just stated, the return of the records by the Munsif without giving his findings was illegal. The order passed by the Magistrate on the 23rd September, 1963, was also, therefore, illegal and without jurisdiction, on the simple ground that having once referred the matter to the civil court u/s 146(1), be could not decide the question of possession himself but had to decide that question on the basis of the findings of the Munsif.

It is, however, to be noticed here that these observations were made in a case where the reference to the civil court was competent. These observations have got no application to a case where the reference is incompetent, inasmuch as in such a case the civil court docs not get any jurisdiction and the jurisdiction to decide the case remains all along with the Magistrate.

It would thus appear that when the reference was incompetent and it was brought to the notice of the Magistrate, the Magistrate was within his jurisdiction to recall the reference and dispose of the case according to law. When the Magistrate after applying his mind to the facts of the case could come to a decision about the question of possession and dispose of the case himself. I do not think that he acted in any illegal manner. He was not bound to refer the matter again to the civil court after rectifying the defects pointed out by the civil court.

Counsel for the petitioners has next submitted that the question of jurisdiction apart, when the learned Magistrate on a consideration of the relevant documents and affidavits available on the records found himself unable to come to a definite conclusion about the question of possession and made a reference to the civil court for decision of the question of possession over the disputed lands, it was not proper for him to dispose of the matter on the same materials without making a fresh reference to the civil court in accordance with law. It would appear from the record that the first reference was made by another Magistrate. That Magistrate found himself unable to come to any finding with regard to the question of possession and made a reference to civil court. After the record was received back from the civil court, the case was transferred to another Magistrate. If that Magistrate on the very same materials found himself able to come to a decision with regard to the question of possession over the disputed lands. I do not see any illegality in that order. The Magistrate has jurisdiction to deal with the matter and if he has exercised his jurisdiction and on a consideration of the materials on the records found himself able to decide the question in dispute, there is nothing in law to force him to make a reference to the civil court u/s 146(1) of the Code of Criminal Procedure.

Learned counsel for the petitioners has contended that the learned Magistrate has committed several errors of records, which have affected the decision. In this connection, he has referred to certain errors pointed out in Paragraph 16 of his petition. On comparison, it however, appears that errors pointed out in (a) and (b) of Paragraph 16 of the petition, as a matter of fact, do not exist. The written statement of the second party filed in the proceeding u/s 145, Code of Criminal Procedure, has been correctly referred by the learned Magistrate. It appears that with reference to what is stated in the show cause filed in the proceeding u/s 144, Code of Criminal Procedure, probably the learned counsel for the petitioners noted in the petition that there were errors of record. Learned Magistrate at one place has stated that the sale deed do not indicate as to how much land of Survey Plot No. 886 will go to Imrit Rai and as to how much will go to Phulbadan Devi. This observation does not appear to be correct in view of the fact that the different areas have been mentioned in the sale deeds of those two persons. But this incorrect observation has got no significance and it does not seem to have materially affected the decision. Another submission of learned counsel for the petitioners has been that the learned Magistrate was wrong in observing that Ramyad Mahto and Mahendra Rai have stated about possession of Survey Plot No. 308 only, though from Paragraph 5 of the affidavits it would appear that they were speaking about all the disputed lards. There is no substance in this contention. In Paragraphs 3 and 4 of their affidavits these two persons have clearly stated about the possession over plot no. 308 only. In that context, Paragraph no. 5 has to be read.

No other defect in the consideration of either the documents or affidavits could be pointed out on behalf of the petitioners. On a perusal of the order, it appears that the learned Magistrate has carefully dealt with the entire evidence and has come to the clear finding about the possession over the disputed land. The revision application is, therefore, dismissed.