Mudholkar, J. - (1.) The only point which falls to be decided in this appeal by certificate granted by the High Court at Allahabad is whether the District Judge has jurisdiction under S. 24 of the Code of Civil Procedure to transfer a reference made by a Magistrate to a particular civil Court under S. 146 of the Code of Criminal Procedure to another civil Court. It arises this way. Proceedings under S. 145, Cr. P. C. were initiated by a Magistrate on the basis of a report of a police officer to the effect that a dispute likely to cause a breach of the peace exists concerning a plot of land situate within the jurisdiction of the Magistrate between the parties mentioned in the report and praying for appropriate action under S. 145 of the Code of Criminal Procedure. The learned Magistrate upon being satisfied about the possibility of a breach of the peace made a preliminary order under S. 145. Cr. P. C. attached the property to which the dispute related and called upon the parties to adduce evidence in respect of their respective claims. In due course he recorded the evidence but he was unable to make up his mind as to which of the parties was in possession on the date of the preliminary order and within two months thereof. He, therefore, referred the case under S. 146 (1) of the Cr. P. C. to a civil Court for decision as to which of the parties was in possession at the material point of time and in the meanwhile directed that the attachment of the property shall continue. The reference went to the Court of the Munsiff within whose territorial jurisdiction the property was situate. But thereafter one of the parties Brij Gopal Binani, respondent No. 2 before us made an application to the District Judge under S. 24, C. P. C. for transfer of the case to some other Court. The ground given was that in the execution case out of which proceedings under S. 145, Cr. P. C. had arisen the same Munsiff had made an order against him depriving him of costs. The Munsiff having no objection to the transfer the District Judge transferred the case to the Court of another Munsiff. The opposite parties, that is, the appellants before us Ram Chandra Aggarwal and Kadar Prasad Aggarwal acquiesced in the order of transfer and did not raise any question as to the jurisdiction of the transferee Court to hear and decide the reference. Eventually evidence was led by both sides and finding given by the transferee Court. This finding was in favour of the second respondent. After receiving the finding the learned Magistrate heard the parties and held that it was the second respondent who was in possession at the relevant date and passed an order under S. 145 (6), Cr. P. C. pursuant thereto. A revision application was preferred by the appellants before the Court of Session in which the objection was taken for the first time that the decision of the civil Court was a nullity because it had no territorial jurisdiction over the subject-matter of the dispute. It was further contended that the District Judge had no jurisdiction to transfer the case and that consequently the ultimate order made by the learned Magistrate was a nullity. The learned Additional Sessions Judge who heard the revision application rejected these contentions on the ground that they were not raised earlier. The appellants then took the matter to the High Court in revision. The appellants rested their revision application on the sole ground that S. 24, C. P. C. was not available in respect of a reference under S. 146 (1), Cr. P. C. and that, therefore, the proceedings subsequent to the transfer of the reference from the Court of one Munsiff to that of another are a nullity. The High Court permitted the point to be urged. The attack was based upon two grounds; that the reference under S. 146 (1), Cr. P. C. was to a persona designata and that the provisions of S. 24, C. P. C. were not available with respect to it. The second ground was that the proceeding before the civil Court was not a civil proceeding within the meaning of S. 141, C. P. C. The High Court negatived both the grounds on which the contention was based.
(2.) On behalf of the appellants Mr. Goyal has reiterated both the contentions. In fairness to Mr. Goyal it must be said that his attack on the order of the District Judge transferring the case under S. 24, C. P. C. was based more on the ground that the reference under S. 146 (1), Cr. P. C. is not a civil proceeding than on the ground that that reference was to a persona designata. However, as he did not wish to abandon the other point we must deal with it even through Mr. B. R. L. Iyengar who appears for the State conceded that a reference under S. 146 (1) is to a constituted Court and not to a persona designata.
(3.) In Balakrishna Udayar vs. Vasudeva Ayyar, 44 Ind App 261, Lord Atkinson has pointed out the difference between a persona designata and a legal tribunal. The difference is this that the "determinations of a persona designata are not to be treated as judgments of a legal tribunal". In the Central Talkies Ltd., vs. Dwarka Prasad, (1961) 3 SCR 495 at pages 500-501 this Court has accepted the meaning given to the expression persona designata in Osborn's Concise law Dictionary, 4th Edn., p. 263 as "a person who is pointed out or described as an individual as opposed to a person ascertained as a member of a class, or as filling a particular character". Section 146 (1), Cr. P. C. empowers a Magistrate to refer the question as a whether any, and if so, which of the parties was in possession of the subject-matter of dispute at the relevant point of time to a civil Court of competent jurisdiction. The power is not to refer the matter to the presiding Judge of a particular civil Court but to a Court. When a special or local law provides for an adjudication to be made by a constituted Court - that is, by a Court not created by a special or local law but to an existing Court - it in fact enlarges the ordinary jurisdiction of such a Court. Thus where a special or local statute refer to a constituted Court as a Court and does not refer to the presiding officer of that Court the reference cannot be said to be to a persona designata. This question is well settled. It is, therefore, unnecessary to say anything more on this part of the case except that cases dealing with the point have been well summarised in the recent decision in Chatur Mohan vs. Ram Behari, 1964 All LJ 256.;