KRISHNA MISSER Vs. SK YUSUF

JUDGEMENT

(1.) This reference must be accepted. What happened was this : On the 7th December 1957, a proceeding under Section 144 of the Code of Criminal procedure, hereinafter to be referred to as 'the Code', was drawn up against both the parties. On the 23rd January, 1958, the proceeding under Section 144 of the Code was converted into a proceeding under Section 145 of the Code. The actual proceeding under Section 145 (1) however, was drawn up and signed on the 31st January, 1958. The learned Subdivisional Magistrate, Sadar, Darbhanga, on a consideration of the evidence of both Sides, found that "none of the parties is in possession of the disputed land" and, therefore, he attached the land in dispute under Section 146 of the Code, until the right and title of the parties thereto Was decided by a competent Court.

(2.) It is obvious that the attention of the learned Magistrate was not drawn to the new Sub-section (1) of Section 146 of the Code, which was substituted by Act 26 of 1955, for the old Sub-section (1). Present Sub-section (1) of Section 146 of the Code is in these terms:-

(3.) In the instant case, therefore, the Magistrate should not only have attached the land in dispute, but also, when he found that none of the parties was in possession, have referred the case to a competent Civil Court for a decision on the question of possession and directed the parties to appear before that Court on a date fixed by him.