- (1.)In a case between Ram Govind Singh and Ram Nath Singh under Section 145, Code of Criminal Procedure the Additional Sub-Divisional Magistrate made an order declaring Ram Nath Singh to be entitled to hold possession over the property in dispute until evicted therefrom in due course of law, forbade all disturbance in his possession till such eviction and directed release of the subject-matter in depute in favour of Ram Nath Singh. The application had been filed by Ram Govind Singh on 5-10-1963. On that date S.O. Mau was ordered to enquire and report by 14-10-1963. On 14-10-1963 a preliminary order was passed after consideration of the report of the Station Officer and other matters and notices were to be issued under Section 145, Code of Criminal Procedure. In the notice which was issued it was found that the plots in dispute were mentioned as situated in village Dumraon, although they were actually situated in village Imiliyadih. A second notice was accordingly ordered to be issued on 3-4-1964 and the first notice was withdrawn. It was also mentioned in the order directing the issue of a second notice that since the parties agreed that the case was not of emergency there was no necessity of attaching the disputed plots. On 29-5-1964 the learned Magistrate found himself unable to decide which of the parties was in possession over the disputed plots and referred the case to the civil Court for decision of the issue as to which of the parties was in possession over the subject of dispute on the date of the preliminary order and two months prior to that. The Civil Court gave a finding on 20-7-1964 that the second party, i.e. Ram Nath Singh, was in possession of the disputed property on the date of the preliminary order and two months before that. On the basis of that finding the learned Magistrate passed the order mentioned above.
(2.)The Additional District Magistrate (J) Azamgarh who has made the reference, is of the view that a reference to the civil court can only be made if the property is attached. Section 146, Sub-section (1) of the Code of Criminal Procedure says that--
If the Magistrate is of opinion that none of the parties was found 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 of 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.

Provided that the Distt. Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time, if, he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute.

From this the learned Additional District Magistrate (J) inferred that any reference to the civil Court without any attachment was illegal and without jurisdiction. The necessity for reference to the civil Court arises because of his opinion that none of the parties was in such posession or his inability to decide as to which of them was then in such possession. The reference to civil Court as well as discretion to attach the property arise from the same necessity. It would also appear from the Proviso to this sub-section that the District Magistrate or the Magistrate has the power to withdraw the attachment at any time, which will necessarily mean that the attachment may be withdrawn even after a reference has been made to the civil court. The civil court would, however, have already on receipt of the reference proceeded to decide the question of possession. The result is that the failure of the Magistrate to attach the property does not render the order or reference to the civil court and the civil Court's decision without jurisdiction. It was held in Taashuq Hussain v. State,1958 AndhWR 301, that in view of the provisions of Section 146(1-D) of the Code of Criminal Procedure the finding of a civil court cannot be challenged in an application in revision of the Magistrate's order Under Section 146, Code of Criminal Procedure. Desai, J. further observed that a finding given by a civil court under Section 146, Code of Criminal Procedure not being a finding of a criminal court cannot be revised under Section 435, Code of Criminal Procedure. Nor is any appeal provided against that finding in the Code of Criminal Procedure. Desai, J. went on to say--

Therefore, even in the absence of Section 146(1-D) the Civil Court's finding could not be challenged by a direct appeal or application in revision and the provision in Section 146(1-D) must have been enacted in order to prevent the finding being challenged indirectly or collaterally in an appeal again-t, or application for revision from, the final order passed by the Magistrate Under Section 146(1-B).

(3.)The result is that in view of the provisions of Section 146, Code of Criminal Procedure it cannot be said that the reference by the learned Magistrate and the subsequent proceedings of the case were without jurisdiction. That being so, the findings of the civil court cannot be challenged in revision and the reference in respect of them consequently fails.