Mahendra Bhushan, J. - (1.) This revision petition is by party No.1 in proceedings u/s 145, Cr. P. C. The learned Magistrate, after holding an enquiry, declared the possession of party (1) on the land in dispute on the date of the preliminary order as well as within two months prior to it. Party (2), who are non-petitioners in this Court, preferred a revision petition before the learned Session Judge, Sawai Madbopur, who accepted the same and remanded the case to the learned Executive Magistrate with directions to proceed in accordance with law in the light of observations made by him. Khasra No. 111 was 'Charagah' consisting of a big area and a part of it measuring 7 Bighas 1 & 11 Biswas was allotted to party (1) in exchange of his Khasra No. 114 measuring 6 Bighas and 2 Biswas and Khasra No. 128 measuring Bigha and 11 Biswas on 7.9.65 Party (1) was recorded as Khatedar of 7 Bighas & 11 Biswas of agriculture la no, which was numbered as 111/2. Since then party (I) was in possession of the land in dispute, and on the application of party (1) dated 12.10.72, proceedings u/s 145, Cr. P. C. (1898) (hereinafter referred to as the Old Code) were initiated by the S. D. M., Sawai Madhopur, and both the parties were required to attend the court of the learned S.D.M. and to put in their written statements as respects the fact of actual possession of the subject of dispute, and further to put in such documents or to adduce evidence by means of affidavits of such persons as they relied upon in support of such claim. The subject of dispute was also attached after a preliminary order was drawn. Both the parties put in appearance and also submitted documentary evidence as well as evidence by means of affidavits. Written statements were also filed. The case of party (1) was that the disputed 7 Bighas & 11 Biswas of agriculture land was Khasra No. 111/2 whereas the case of party (2) was that they were in possession of an area of 20 Bighas & 2 Biswas of Khasra No 111, which had been demarcated as 111/1, and the land actually attached was out of 111/1, and not of 111/2. The learned Magistrate after perusal of the affidavits, written statements and the documentary evidence declared the possession of party (1) on the date of the preliminary order i.e , 13.10.72. party (2) filed a revision petition before the learned Sessions Judge, Sawai Madhopur, who accepted the same and remanded the case to the learned S.D.M., Sawai Madhopur with a direction, as already stated above.
(2.) The first submission of the learned Advocate for party (1) is that proceedings under S. 145 were pending before the learned S.D.M. prior to coming into force of the code of Criminal Procedure, 1973 (hereinafter referred to as the New Code), and though the learned S.D.M. disposed of the proceedings finally on 4.5.76, the revision filed before the learned Sessions Judge should have been disposed of under the Old Code, and the learned Sessions Judge should have made a reference to this Court instead of disposing of the revision himself. It is next contended that there was no question of remand of the case, as, on the material available on record, the learned Magistrate has declared the possession of party (1) on the date of the preliminary order on the subject of dispute, and the Court of Revision should not interfere in that order of the Magistrate.
(3.) Therefore, the first question, which arises for determination is, as to whether the revision petition filed before the learned Sessions-Judge against the order of S.D.M., Hindaun dated 4.5.76 should have been disposed of under the Old Code and has been rightly disposed of under the New Code?;