PHULENA THAKUR Vs. DEVI THAKUR

JUDGEMENT

(1.) This application in revision by the first party is directed against the final order passed in a proceeding under Section 145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the Code') in respect of lands described in the notice to the proceeding. S.A. Hussain, J. referred it to a Division Bench to be heard along with Criminal Revision No. 1811 of 1969, which had already been ordered to be placed before a Division Bench earlier. Thereafter, this application and Criminal Revision No. 1811 of 1969 were listed for hearing before a Division Bench. Anwar Ahmad and B. D. Singh, JJ. after hearing counsel for the parties, being of the view that there seemed to be a direct conflict between two Bench decisions of this Court, namely, Shreedhar Thakur v. Kesho Sao, (AIR 1962 Pat 468): (1962 (2) Cri LJ 770) and State of Bihar v. Ban Mishra, (AIR 1965 Pat 411): (1965 (2) Cri LJ 527), ordered that the two applications be placed before Hon'ble the Chief Justice for finally settling the law laid down in the two decisions. That is how the matter was referred by the Chief Justice to the present Full Bench. Criminal Revision No. 1811 of 1969 became incompetent, as the sole petitioner died and no one prayed to be added as petitioner in his place. It was, therefore, dismissed as incompetent by order dated 28-4-1977, passed in that case.

(2.) Before considering the points arising in the case, it would be useful to set out a chronology of events. On 17-11-1963 a proceeding under Section 144 of the Code was drawn up between the parties. Before the proceeding under Section 144 could come to a conclusion, the learned Magistrate drew up a proceeding under Section 145 of the Code in respect of the same lands and the lands in dispute were attached in terms of Section 145 (4) of the Code. After the proceeding had been drawn up, third and fourth parties to the proceeding were also added parties to the proceeding. The learned Magistrate who was in seisin of the case finding himself unable to decide which of the parties was in possession of the subject of dispute, forwarded the record of the proceeding to a Civil Court to decide any and which of the parties was in possession of the subject of dispute on the date of the order. On receipt of the record the Civil Court finding that the proceeding had not been signed by the learned Magistrate, sent back the case record to the learned Magistrate for his signature. The learned Magistrate, therefore, signed the proceeding on 28-3-1966 and returned the record to the Munsif, Motihari. A separate order sheet was started by the Munsif. The order sheet of the Civil Court dated 11-1-1967 shows that the District Judge transferred the case to the file of First Additional Munsif for finding in regard to possession. On 7-8-1967 the learned First Additional Munsif, Motihari being of the view that the reference to Civil Court, not being in terms of the provisions of Section 146 (1) of the Code was incompetent, returned back the record to the Court of the Magistrate, First Class for drawing up a proper reference. The order of the learned Additional Munsif is in the following terms :--

(3.) The first point urged on behalf of the petitioners was that the order of the learned Magistrate dated 18-2-1965 referring the case to Civil Court was a competent and valid reference and, therefore, the Civil Court alone had the jurisdiction to decide which of the parties was in possession of the lands in dispute. By the same process of reasonings it was contended that the Civil Court having jurisdiction to decide the question of possession, the jurisdiction of the Criminal Court came to an end and the Civil Court could not be divested of the jurisdiction and obligation of finding possession over the lands in dispute.