KAN SINGH, J - (1.) THESE are two connected references and arise out of S. 145 Criminal Procedure Code proceedings.
(2.) I need not refer to the entire history of the case, suffice it to say that the proceedings before the Sub-Divisional Magistrate, Ganganagar, started on an application filed by Smt. Sukhdev Kaur on 12. 9. 66. This application was sent by the learned Magistrate to the police for enquiry and the police submitted their report. On 1. 10. 66, the learned Magistrate passed a preliminary order and called upon the parties to file their written statements about the actual possession of the land. The learned Magistrate also ordered the attachment of the disputed property and appointed Tehsildar as the Receiver. The parties filed their respective affidavits as also the affidavits of their witnesses and produced some documents. The learned Magistrate, however, could not determine the possession of either of the parties and he referred the case under sec. 146 Criminal Procedure Code to the Civil Judge, Ganganagar. The learned Civil Judge returned the reference saying that it be sent to the court of the lowest jurisdiction. Accordingly, the reference was made to the court of Munsif. The learned Munsif found that the party No. 2 Smt. Surjeet Kaur and others were in possession of the disputed land. In accordance with the finding of the Civil Court the learned Sub-Divisional Magistrate declared the possession of Party No 2 over the land in dispute and forbade Party No. 1 from interfering with the possession of Party No. 2 except in due course of law. Aggrieved of this Party No. 1 filed the revision application before the learned Additional Sessions Judge. The learned Additional Sessions Judge has made this reference No, 12, on the ground that part of the property lay outside the territorial jurisdiction of the learned Sub-Divisional Magistrate and accordingly the learned Magistrate had no jurisdiction or deal with the dispute. He likewise held that the learned Munsif too lacked the territorial jurisdiction and consequently his finding about possession was bad. In his own words, the conclusion of the learned Additional Sessions Judge may be put like this: "be as that may, out of these two Chaks, the land of square No. 47 and Chak No. 11 BGS still formed part of reference to the Civil Court and the learned Munsiff Ganganagar has also given his finding on the fact of possession about this land also. Admittedly this land does not lie within the territorial jurisdiction of either the Sub Divisional Magistrate, Ganganagar or the Munsiff Ganganagar Therefore, both the preliminary order and the reference under sec. 146 Cr. P. C. and also the findings of the Civil Court about the land, are erroneous and cannot legally be sustained. " The learned Additional Sessions Judge placed reliance on Venkatabhalam vs. Ramaswami (l) and Kalanand Singh vs. Hirde Misser (2 ). In the first case it was observed that the proceedings under sec. 145 Criminal Procedure Code instituted in a court which has no jurisdiction in respect of them cannot be regarded as legally instituted proceedings and the superior Court cannot transfer them to a Court having jurisdiction and thereby cure the defect. In the second case the dispute was about a ferry and it was observed that the Magistrate having no jurisdiction over place of ferry cannot pas|s an order in respect thereof with the result that the preliminary order relating to the attachment of the land was bad. I have heard counsel for the parties. Shri R. N. Bishnoi, learned counsel for party No. 2, contended in support of the reference that the learned Magistrate as well as the learned Sub-Divisional Magistrate had acted without jurisdiction. He cited Inder Singh vs. Jankivallabh (5) and Ramratan vs. Modho (6) to reinforce his submission. Learned counsel for Party No. 1, on the other hand opposed the reference. He contended that the learned Magistrate was appointed for the District by Government notification. As regards the jurisdiction of the learned Munsiff, he submitted that according to sec. 17 Civil Procedure Code where a portion of the property lies within the territorial jurisdiction of a civil court that court has jurisdiction over the entire property which is the subject matter of dispute. Learned counsel relied on Radhey vs. Girwar (7) and Parichhan Singh vs. Heman Singh (8 ). Now the first question that claims attention is whether the learned Sub Divisional Magistrate who passed the preliminary order and initiated the proceedings under sec. 145 Criminal Procedure Code was acting without jurisdiction. Sec. 12 of the Criminal Procedure Code which empowers the State Government to appoint as many persons as it thinks fit, besides the District Magistrate, to be Magistrates of the first, second or third class in any district, provides that such persons may exercise all or any of the powers with which they may respectively be invested by the Code. Sub-sec. (2) of sec. 12 enacts that except as otherwise provided by such definition, the jurisdiction and powers of such persons shall extend throughout such district. Sec. 13 Cr. P. C. provides that the State Govt. may place any Magistrate of the first or second class in charge of a sub-division and relieve him of the charges as occasion requires. Such Magistrates shall be called Sub Divisional Magistrates. There is no controversy that the Sub Divisional Magistrate, Ganganagar who initiated the proceedings was a Magistrate of the first class. Any Magistrate of the first or second class who is put in charge of a Sub Division acquires some added powers over and above his powers as a Magistrate of the particular class. Therefore, in the present case unless there is a limitation placed on the territorial jurisdiction of the Magistrate, he will be competent to exercise his powers as a first class Magistrate throughout the District. No order of the Government has been placed before me from which it could be inferred that the Sub- Divisional Magistrate of Ganganagar was precluded from exercising his powers as a first class Magistrate throughout the District of Ganganagar. In these circumstances it cannot be said that the learned Sub Divisional Magistrate did not have territorial jurisdiction over the subject matter of the dispute. There is no controversy that the entire immovable property which was the subject matter of the dispute lay within the Ganganagar District, though a portion of it may not be in that sub-division over which the learned Sub Divisional Magistrate exercised jurisdiction as Sub-Divisional Magistrate over and above his jurisdiction as a First Class Magistrate for the entire District Apart from this Sec. 531 Criminal Procedure Code would come into play in a case like the present one. It lays down that no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub division or other local area, unless it appears that such error has in fact occasioned a failure of justice. It has not been shown how any failure of justice was occasioned on account of the lack of territorial jurisdiction in the Magistrate over a portion of the property. I may also refer to section 530 Criminal Procedure Code which inter alia lays down that if any Magistrate, not being empowered by law in this behalf, does any of the things mentioned therein, such as, making an order under Chapter XII (S. 145 Cr. P. C. occurs in Chapter XII), the proceedings shall be void. Here the words "not being empowered by law in this behalf" refer only to a case where a Magistrate is not competent by virtue of the position he holds or of the powers vested in him to try a case of the character mentioned in sec. 145 Criminal Procedure Code, but where a first class Magistrate deals with a case, the fact that he had no local jurisdiction to try a case under Sec. 145 Cr. P. C. will not make the proceedings before him void. That being so I do not rind any substance in the recommendation that the proceedings before the Sub Divisional Magistrate, Ganganagar were without jurisdiction. I may now briefly refer to the cases cited before me. In Inder Singh v. State (3), the learned Judge was dealing with the ambit of Sec 146 (1) (b ). The learned Judge observed that what this sub-section prohibits was filing of appeal, revision or review against the finding of the civil court on the civil side and not on the criminal side under Sec. 435 and 439 of the Criminal Procedure Code. I have carefully gone through the judgment. It is true the order of the criminal court passed in pursuance of the finding recorded by a civil court would be the subject matter of revision on the criminal side under Sec. 435 Criminal Procedure Code. But, the learned Judge has left the question open as to what will be the extent to which there could be interference with the order of the criminal court passed in pursuance of the finding recorded by the civil court. I am in respectful Agreement with the learned Judge to the extent that there can be no appeal, review or revision against the finding of the civil court on the civil side, but I need not express a firm opinion on the question whether that finding can be interfered with on the criminal side. It is always open to the revisional court on the criminal side to examine whether the order of the learned Magistrate is or is not in conformity with the finding of the civil court. But, if the finding of the civil court does not suffer from any patent illegality or is not otherwise void, then I should think that even the superior courts exercising revisional jurisdiction on the criminal side will not be able to reach the finding of the civil court. Or conceive of cases where the finding of a civil court may suffer from a patent illegality or may be otherwise void. For example, when the civil court has not heard any of the parties and has thus acted in violation of the principles of natural justice, I should think it [will be open to the superior courts sitting in revision on the criminal side to [make a pronouncement about the invalidity of the finding of the civil court. But, in the present case it has not been shown that the finding of the civil court suffered from any patent illegality or was otherwise void on account of any fundamental defect. That being so I am not called upon to consider the broader question as to what extent the superior courts on the criminal side sitting in revision can interfere with the finding of the civil court, but I have no doubt in my mind that it is always open to the superior criminal courts to see whether the learned Magistrate has passed his order in conformity with the finding of the civil court or not. In Raja Singh vs. Mahendra Singh (4), the learned Judges observed that apart from everything the High Court can exercise supervisory jurisdiction over the civil court in accordance with Article 227 of the Constitution and, therefore, the powers of the High Court under Article 227 are not affected by what has been said in sec. 146 Criminal Procedure Code. It is thus evident that the fate of the case turned on the exercise of the powers of the High Court under Article 227 of the Constitution. In the present case, I am not dealing with the case under Art. 227 of the Constitution because according to the Rules of the High Court in that event the case would be laid before a larger Bench. In Abdul Sattar vs. Jankivallabh (5), Modi J. observed that the word "jurisdiction" with reference to the competent civil court as used in sec. 146 (1) Cr. P. C. has to be interpreted only with reference to the territorial jurisdiction of the civil court to which the matter has been referred by the criminal court, and that the pecuniary jurisdiction of the civil court to which the matter may have been so referred does not matter There is no such dispute in the present case about the Munsif lacking the jurisdiction for want of pecuniary jurisdiction. The controversy is whether the Munsif had territorial jurisdiction over the subject matter of the dispute or not and I will be showing hereinafter that the Munsif did not lack jurisdiction in the matter and I need say no more about this case. In Ramratan vs. Madho (6), it was held that the term "civil court of competent jurisdiction" as used in sec. 146 of the Cr. P. G. refers to a civil court having territorial jurisdiction over the subject matter of the dispute and not a revenue court. In the present case the case was dealt with by the Munsif and, therefore, this case is of no help. In Radhey vs. Girwar (7), Ranawat J. as he then was, pointed out that allocation of a particular area to a particular Magistrate by the District Magistrate cannot by itself be understood to have the effect of excluding the jurisdiction of that Magistrate from over other areas of the same district over which he exercises jurisdiction by virtue of provision of sec. 12 (2) Criminal Procedure Code. He added that in order to exclude certain areas from the jurisdiction of the Magistrate, there must be something express or by necessary implication in the order defining the local area to warrant an inference that the intention of the said order was to exclude the jurisdiction of such Magistrate from such areas. This case supports what I have already observed. No notification or Government order has been brought to my notice, as observed already, that the Sub-Divisional Magistrate was precluded from exercising his powers of a first class Magistrate throughout the district of Ganganagar. Parichhan Singh's case (8) is also to the same effect. It was pointed out in that case that the trial of the proceedings under sec, 145 by a Magistrate holding first class powers in respect of land situated in another Sub-division of the same district, is not without jurisdiction, if there is nothing to show that the jurisdiction of the Magistrate has been limited only to his sub-division. Thus, the learned Additional Sessions Judge is not correct in saying that the Sub Divisional Magistrate had acted without jurisdiction in dealing with the land in question under sec. 145 Criminal Procedure Code.
(3.) NOW, I may turn to the question whether the learned Munsif can be said to have acted without jurisdiction. It is not disputed that the Munsif had jurisdiction over a portion of the land. Sec. 17 of the Code of Civil Procedure lays down where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate. Sec. 146 Cr. P. C. lays down that 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 of competent jurisdiction to decide the question. For construing the words "civil Court of competent jurisdiction" one has necessarily to go to the Civil Procedure Code with a view to seeing whether such civil court could entertain a suit in respect of the property in dispute. Therefore, sec 17 Civil Procedure Code is attracted in the matter for seeing the competence of the civil court. As the learned Munsif Ganganagar had jurisdiction over a portion of the property, he was accordingly competent to deal with the entire dispute relating to the property, though some of the property lay outside his territorial limits. Now, learned counsel for the petitioner tried to make some additional points. He submitted that Party No. 1 had not specified the property in dispute in her application and likewise in the affidavits of the parties before the learned Munsiff the property in dispute namely, Khasra Numbers had not been specified. Now it is noteworthy that even though the applicant did not describe the property specifically which again is her own fault, the learned Sub Divisional Magistrate had specified the property in the preliminary order. The starting point of the proceedings under sec. 145 Cr. P. C. so far as the question of determination of possession is concerned, is the preliminary order passed by the Magistrate and, therefore, if the preliminary order has described the property it dose not lie in the mouth of the party to say at this stage that the proceedings were bad because the property was not specified. Apart from this in the reference made to the Munsiff the learned Sub Divisional Magistrate had specified certain Khasra Numbers as being in dispute between the parties. The learned Munsif sought some clarification and for that purpose made a back reference to the learned Sub Divisional Magistrate. On receiving clarification from the Sub Divisional Magistrate the learned Munsif proceeded to enquire into the matter and recorded his own findings. It is in accordance with the findings recorded by the learned Munsif that the learned Sub Divisional Magistrate declared the possession of Party No. 2 over such property. Therefore, in the events that have happened it cannot be said that the order of the learned Munsif was bad for want of specification of the property in dispute. Likewise, the ultimate order passed by the Sub Divisional Magistrate in accordance with the finding of the civil court cannot be said to be bad. Now I may refer to the other reference which is No. 13. It appears that when the Tehsildar was appointed a Receiver he also attached square No. 8 of Chak No. 12 BGS, but that square No. 8 was not included by the Sub Divisional Magistrate in the preliminary order which he passed on 6. 10. 66. On account of this at a subsequent stage Party No. 2 applied before the learned Sub Divisional Magistrate that as square No. 8 of Chak No. 12 BGS was not in dispute in the proceedings, Party No. 2 be put in possession thereof, as the Tehsildar had attached the property while it was in possession of party No. 2. It appears that party No. 1. subsequently filed an application under sec. 145 Criminal Procedure Code, but it did not go beyond issuing of a notice. It is common ground between the parties that no fresh preliminary order had been passed by the learned Sub Divisional Magistrate in respect of Square No. 8 of Chak No. 12 BGS. However while passing an order for handing over possession of the property to Party No. 2, the learned Magistrate gave a direction that the possession of Party No. 2 shall not be interfered with except in due course of law. This means that even though the proceedings under sec. 145 Criminal Procedure Code had not been taken by the learned Sub Divisional Magistrate he purported to pass a final order under sec. 145 Criminal Procedure Code. By way of parenthesis I may add that this Square No. 8 was not the subject matter of the reference before the learned Munsif and consequently the learned Munsif could not have given any finding in respect of this Square No. 8 Chak No. 12 BGS. The learned Additional Sessions Judge has recommended the reversal of the order of Sub Divisional Magistrate lacked territorial jurisdiction. As regards the jurisdiction of the learned Sub Divisional Magistrate in the matter I have already held above that he had jurisdiction over the entire district, since it has not been shown that his jurisdiction had been limited to his own sub-division by any order under sec. 12 Criminal Procedure Code. However, it is clear that no proceedings under sec. 145 Criminal Procedure Code had been taken by the Sub Divisional Magistrate. Since he had not passed any preliminary order, the order for returning the property to Party No. 2 could be said to be one which was incidental to the proceedings taken by him in respect of certain lands which were included in the preliminary order dated 6-10 66. In passing such an order for the returning of possession to the party from whom the Tehsildar had attached the property, the learned Sub Divisional Magistrate could be said to be acting ex debito justitiae and not under the provisions of sec. 145 Criminal Procedure Code. It is a trite principle that if any property has been wrongly taken possession of from a party in the course of any proceedings then the property has to be returned to the party from whose possession it was taken, because none should be made to suffer from the action of a court or an agency of law. It is not known from the record as to from whose possession the Tehsildar had taken Square No. 8 of Chak No. 12 BGS when he attached the same. The learned Sub-Divisional Magistrate should, therefore, make an enquiry affording opportunity to both the parties concerned and he should also examine the Tehsildar and then return the property to the party from whose possession the Tehsildar had attached it and had taken it over in his possession as a Receiver. Reference No. 12 is rejected and reference No. 13 is accepted in the above terms. The parties regarding reference No. 13 are directed to appear before the Sub Divisional Magistrate on 18-5-70. ;