- (1.) THIS is a reference by the Addl. Sessions Judge of Tonk. Ramratan, Ramnath, Jagannath, Lalu and Dhanna of village Dewarnia purchased agricultural lands Khasra No. 1569 and 1574/2 measuring 89 Bighas 3 Viswas and 18 Bighas 3 Viswas respectively from Sahebzada Sardar Mohammad Khan by a sale-deed dated the 18th of October, 1959, and they were duly put into possession by the vendor. When the vendees went to plough the land, Onkara, Chandra, Mangiya, Raghunath and others of village Hathuna obstructed them. The vendees then made an application under sec. 145 of the Criminal Procedure Code in the court of the Sub-divisional Magistrate, Tonk and the Magistrate, after holding an inquiry, found himself unable to decide as to which one of the parties was in possession of the disputed land on the date of the preliminary order, namely the 25th of November, 1959. The Sub-divisional Magistrate, therefore, prepared a statement of the case and referred the point regarding possession for determination to the Civil Judge, Tonk. One of the parties raised an objection regarding the jurisdiction of the civil court on the basis of a Single Bench decision of this Court in The State V. Kt. Kesva Sen and another (1 ). In that case it was held that the words "civil court" have been used in sec. 146 of the Criminal Procedure Code in a wider sense so as to include a revenue court. It was also held that the revenue courts have exclusive jurisdiction in the matter and a reference under sec. 146 (1) of the Criminal Procedure Code did not lie to a civil court, in case dispute relates to agricultural lands. In an earlier decision of this Court in Ghisa Vs. State (2), it was held that sec. 146 of the Criminal Procedure Code contemplates a reference to a civil court and not to a revenue court in case of dispute to agricultural land. The decisions in the two cases being inconsistent with each other, the Civil Judge has made this reference.
(2.) UNDER secs. 145 of the Criminal Procedure Code the District Magistrate, Sub-Divisional Magistrate etc. if satisfied that a dispute likely to cause a breach of the peace exist; concerning any land or water etc. have the authority to make an order calling upon the parties concerned in such dispute to attend his court and to put in their written-statements of their respective claims as respects the fact of actual possession of the subject of dispute. The Magistrate is bound to hold inquiry regarding the fact of possession on the date of making of the preliminary order and to determine as to which of the parties was in possession on that date. If the Magistrate decides that one of the parties was or is under second proviso to sec. 145 (4) deemed to be in possession, he should declare such party entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction. If on the other hand, the Magistrate is of opinion that none of the parties was then in possession or is unable to decide as to which of them was in possess ion of the subject of dispute, he may attach the property and draw up a statement of the facts of the case and forward the record of the proceedings 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 order as explained in sub-section (4) of sec. 145 of the Criminal Code. The Magistrate 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 matter of dispute On receipt of such reference, the Civil Court is bound to hold an inquiry and to return it finding to the Magistrate on the question of possession. The Magistrate upon receipt of finding of a civil court has to make an order in conformity with such finding. The decision of a civil court on a reference under sec. 146 of the Criminal Procedure Code is, however, subject to any subsequent decision of a court of competent jurisdiction. The nature of the proceedings of a reference under section 146 of the Criminal Procedure Code is analogous to the proceedings relating to a case under sec. 9 of the Specific Relief Act. The provision regarding reference to a Civil Court under sec. 146 was introduced by the Criminal Procedure Code (Amendment) Act of 1955. The purpose of the change in law in this behalf has been made clear in paragraph 13 of the Report of the Joint Committee submitted to the Parliament on the 3rd of September, 1954. It was pointed out that inquiries by Magistrates are often dilatory and unsatisfactory. It was, therefore, considered proper to make the provision for reference to a Civil Court for determination of the question of possession. The Legislature thought that a Civil Court is in a better position to determine justly and expeditiously the question of possession of such property than a Criminal Court. The experience and ability of the Civil Courts to deal with such matters thus appears to be one of the main reasons why procedure of making a reference to a civil court was added in sec. 146 of the Criminal Code. Thus having regard to the objects and reasons of the Criminal Procedure (Amendment) Act, it is difficult to comprehend that the Legislature used the term "civil court" in sec. 146 of the Criminal Procedure Code in a wide connotation as understood by Hon'ble Chhangani J. in Kr. Kesva Sen's case (1 ). By sec. 207 of the Rajasthan Tenancy Act, all suits and applications of the nature specified in the Third Schedule of the Act have been made exclusively cognisable by Revenue Courts and in all those matters the jurisdiction of Civil Courts is barred. The question, therefore, arises whether the Legislature contemplated to confer exclusive jurisdiction upon Revenue Courts in the matter of reference under sec. 146 of the Criminal Procedure Code. It may be noted that there is no mention in Schedule III of the Tenancy Act of a reference under sec. 146 of the Criminal Procedure Code. Hon'ble Chhangani J. in Kr. Kesva Sen's case (1) has, it appears, taken into account item 23 of the third Schedule of the Tenancy Act regarding suits for ejectment of trespassers, for holding that a reference under sec. 146 of the Criminal Procedure Code is exclusively triable by a Revenue Court. Item 23 of the third Schedule relates to suits under sec. 183 of the Tenancy Act. A comparison of sec, 183 of the Rajasthan Tenancy Act with sec. 146 of the Criminal Procedure Code would show that the scope of a suit under sec. 183 of the Rajasthan Tenancy Act is not the same as of a reference under sec. 146 of the Criminal Procedure Code. A suit under sec. 183 of the Rajasthan Tenancy Act can be filed by persons holding land directly from the State Government or by persons entitled to admit a terspasser as a tenant. In other words, in order that a person may file a suit under sec. 183, it is necessary for him to show that he is a tenant holding under the State or he is a person holding proprietory rights or superior tenancy rights competent to admit trespasser as a tenant. In a reference under Sec. 146, it is not necessary that a party should have a right to possession on account of his right as a tenant holding directly under the State or as a proprietor or holder of superior tenancy rights competent to admit the trespasser as tenant. The question at issue for an inquiry under sec. 146 is confined to the point of possession on the date of the preliminary order, as qualified by the second proviso to sec. 145 (1) of the Criminal Procedure Code. Even a trespasser in the meaning of sec. 183 of the Rajasthan Tenancy Act can prove his possession on the date of the preliminary order or forcible dispossession therefrom within two months before it and the court dealing with the reference may decide in his favour notwithstanding the prerequisites for filing a suit under sec. 183 being absent. It cannot, therefore, be held that the provision of sec. 183 of the Rajasthan Tenancy Act is at par with a reference under sec. 146 of the Criminal Procedure Code or analogous to it. With due respect for the learned Judge, we do not find ourselves in agreement with the proposition of law laid down in Kr. Kesva Sen's case (1 ). A reference under sec. 146 of the Criminal Procedure Code cannot be considered to be a suit or an application under schedule III of the Rajasthan Tenancy Act for the reason that proceedings under sec. 145 of the Criminal Procedure Code may arise even on a police report or otherwise and making of an application by a party is not necessary for initiating such proceedings. On the other hand, under Schedule III proceedings can only start on a suit or application of a party. This is another reason why in our opinion 'civil Court' in the meaning of the term as used in sec. 146 of the Criminal Procedure Code does not include a revenue court. The term 'civil' is no doubt elastic, as discussed by Chhangani J. ; but having regard to the context in which it has been used in sec. 146 and also the objects and reasons of the Criminal Procedure Code (Amendment) Act of 1955, we think it cannot be held that the term 'civil court' has been used in a wider sense so as to include revenue courts in its ambit. We think the decision in Ghisa Vs. State (2) lays down the correct law on the point. Before leaving the discussion, we may also refer in this connection to a decision in Abdul Sattar and another Vs. Janki Vallabh and another (3 ). Though that decision is not directly on the point at issue in this case, yet it has some bearing on it. In that case it was held that the word "jurisdiction" as used in sec. 146 (1) of the Criminal Procedure Code 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 the pecuniary jurisdiction of the civil court need not be looked into. As a corollary to the decision in Abdul Sattar's case (3), it follows that other considerations regarding nature and value of the subject matter have no bearing on the point of jurisdiction of the court to which the reference is made. In other words, whether the property is agricultural land or not has no relevance for determining the jurisdiction of such court. The conclusion thus is that the term "civil court of competent jurisdiction' as used in sec. 146 of the Criminal Procedure Code refers to a civil court having territorial jurisdiction over the subject matter of the dispute and not a revenue court. The reference is answered accordingly. The Civil Judge, Tonk shall proceed to hold an inquiry and to return his findings to the Magistrate who made the reference in the matter. . ;