ORDER
B.D. Singh, J.
1. This application by the two members of the second party under Sections 435 and 439 of the Criminal Procedure Code (hereinafter referred to as ‘the Code’) is directed against the final order dated 8.4.1969 passed by Shri A.K. Sinha. Sub-divisional Magistrate, Simdega, in a proceeding under Section 145 of the Code. In the said proceeding opposite party No. 1 was the first party, whereas Mangtu Ram Majaria was the third party to the proceeding. The application before this Court stood dismissed for default against opposite party No. 2 (Mangtu Ram Majaria) by virtue of this Court’s order dated 25.2.1970. The disputed land is comprised of 15 decimals of land bearing Plot No. 724, khata No. 108, situated in two villages namely. Simdega and Saldega, in the district of Ranchi.
2. In order to appreciate the point involved in this application, it will be necessary to state briefly that facts. On 21st of December. 1964, a proceeding under Section 144 of the Code was drawn up which was subsequently converted into 145 of the Code on 2.2.1965. The case of the petitioners in the said proceeding was that petitioner No. 1 took settlement of the disputed land in the name of his wife Indrawati Devi in 1949 from Peru Estate. After the said estate vested in the State of Bihar under the Land Reforms Act. the Circle Officer mutated the name of Indrawati Devi and since then petitioner No. 1 and his son petitioner No. 2 are in peaceful possession over the disputed land. The case of the opposite party No. 1 in the said proceeding was that out of the 15 decimals of land, only 5 decimals of land belonged to opposite party No. 1. The another 5 decimals of the disputed land belonged to opposite party No. 2, namely, Mangtu Ram. The remaining 5 decimals of the land belonged to his brother Arjun Lal Agrawal who was not a party to the proceeding. His further case was that he also took settlement of the said land from the said estate in the same year. The land of opposite party No. 1 as well as opposite party No. 2 situated in village Saldega, whereas the remaining 5 decimals of land which belonged to his brother Arjun Lal Agrawal is situated in village Simdega.
3. The contesting parties, namely the first party and second party filed their written statement and affidavits before the Magistrate. On 18.10.1965 Shri B.P. Verma. Sub-divisional Magistrate, held that it was not possible for him to come to the conclusion on the affidavits filed by the parties with regard to possession. Therefore, acting under Section 146 of the Code, he referred the matter to the civil Court, On 15.11.1967 before the Additional Munsif before whom the matter was put up for consideration under Section 146 of the Code, an application was filed by opposite party No. 1 that 5 decimals of land out of the disputed land belonged to opposite party No. 2, namely, Mangtu Ram. Therefore, prayer was made by opposite party No. 1 that Mangtu Ram should also be made a party. The learned Munsif was of opinion that it was necessary that Mangtu Ram should also be made a party, but he held that party could be added by the Magistrate. Therefore, he sent it back to the Magistrate for adding him as a party. While doing so the Munsif further directed the Magistrate to send the statement of facts as required under Section 146 of the Code. Thereafter when the matter was placed before Shri R. Choudhary. the then Sub-divisional Magistrate, he added opposite party No. 2 as a party to the said proceeding. On 20th of August. 1968, opposite party No. 1 filed an application before the Magistrate for sending the case back to the Munsif under Section 146 of the Code after the Party was so added as directed by the learned Munsif. On 21st of August, 1968 this application, it appears, was placed before Shri N.B. Kujur, acting Subdivisional Magistrate, who held that it was not necessary to send the case back to the Munsif. He, however, gave opportunities to the parties to file further affidavits, if required. Opposite party No. 2 filed affidavits whereas the first and second parties did not file any fresh affidavits. On 19.11.1968 the then Subdivisional Magistrate, Shri A.K. Sinha. transferred the case to his personal file and thereafter on 8.4.1969 he passed the impugned order holding possession of 5 decimals of land in favour of opposite party No. 1 and the another 5 decimals in possession of opposite party No. 2 and with regard to the remaining 5 decimals he observed that it may be in possession of Arjun Lal Agrawal. but since the latter was not a party to the proceeding, no declaration could be made one way or the other with regard to the said remaining 5 decimals of land.
4. Mr. Thakur Prasad, learned Counsel appearing on behalf of the petitioners, have raised the following points for consideration by this Court:
(i) Once Shri B.P. Verma had referred the case to the civil Court under Section 146 of the Code, he or his successor could not have reviewed or revised his judicial order which could have been done only by a superior court.
(ii) In the absence of a fresh material produced by the petitioners or opposite party No. 1, Shri Kujur could not have said that it was no longer necessary to have sent it to the civil Court under Section 146 of the Code.
(iii) Since Arjun Lal Agrawal was not a party to the proceeding, the Magistrate has erred in making observation with regard to the said land in favour of Arjun Lal Agrawal. The Magistrate, at any rate, should have declared that portion of the land in favour of the petitioners as the petitioners’ case so far that piece of land was concerned, remained unchallenged.
In my opinion, it will not be necessary in this case to deal with points Nos. (ii) and (iii). Only point No. (1) is important for consideration in this application.
5. It may be noticed that in the instant case the Munsif had sent the case back to the Magistrate only for two purposes, namely, (i) for adding Mangtu Ram Malaria as a party to the proceeding and (ii) for the statement of facts as contemplated under Section 146 of the Code. After it was complied with by the Magistrate, in my opinion. Shri Kujur had no Jurisdiction to hold that it was not necessary to send the case back to the Magistrate (Munsif?). There is no provision under Section 146 of the Code empowering the Magistrate to recall the order passed by him or his predecessor sending the case to civil court under Section 146 of the Code. Obyiously, therefore, the said order of Shri Kujur was bad in law which cannot be sustained. Since that order was bad, the impugned order also cannot be sustained which has got to be set aside. Therefore, this case will go back to the Magistrate to send the case back to the Munsif under Section 146 of the Code, but before doing so the Magistrate shall add Arjun Lal Agrawal also as one of the parties to the proceeding and give him opportunity to file affidavits.
6. In the result, the application is allowed and the impugned order as well as the order passed by Shri Kujur are set aside and the case will be sent to the Munsif by the Magistrate after complying with the directions given above.