DAYAWATI DEVI Vs. MUNSIF

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution.

(2.) THE petitioner No. 1 is the mother and the Detitioner No. 2 is the daughter. A dispute arose between them and the 5th respondent Natthu Khan with regard to the possession over a plot of land. On an application by Natthu Khan, the second respondent, the Sub Divisional Magistrate, Bisauli passed an order under Section 145 (1) Criminal P. C. and put the property under attachment. Parties filed affidavits and docu-mentary evidence before him and by are order dated 18th December. 1969 the Magistrate referred the dispute under; Section 146, Criminal P. C. to the first respondent, the Munsif Bisauli. The Munsif by his judgment dated 2lst January, 1971 held Natthu Khan in possession on the date of the order passed under Section 145, Criminal P. C. over the land in dispute except about 5 Biswas of land which was found to be in possession of one Sukhpal. The petitioners challenged the order of the Munsif in revision before the Civil and Sessions Judge, Budaun who by his judgment dated 22-3-1971 dismissed the same as non-maintainable. The petitioners have now approached this Court for a writ of certiorari against the orders passed by the Sub-Divisional Magistrate and by tha Munsif.

(3.) THE first contention of the learned Counsel for the petitioners is that the Sub-Divisional Magistrate committed a manifest error in referring the matter to the Civil Court under Section 146 Criminal P. C. He has relied upon the decision of this Court in the case of Sarju Narain v. Lachhmi Narain 1968 All Cr C 290 : 1970 Cri LJ 614 in support of his contention that a Magistrate under Section 145, Criminal P. C. is ordinarily required to apply his own mind to the evidence led before him and not to refer a case to the Civil Court under Section 146. Criminal P. C. unless an intricate auestion of law or fact arises which he is unable to decide. His contention is that in the present case no intricate question of law or fact was involved and the Magistrate was not justified in referring the matter to the Civil Court.