RAMRATAN Vs. MADHO

JUDGEMENT

(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 ).