JUDGMENT
U.N. Sinha, J.
1. This is an application filed by nine petitioners, under Article 227 of the Constitution of India. These petitioners were members of the first party in a proceeding Under Section 145 of the Code of Criminal Procedure which was pending before a Magistrate, 1st Class, at Jahanabad, in case No. 175 M/81 of 1958. About 40 bighss of land of village Kalu within the jurisdiction of Arwal police-station was in dispute between the petitioners and the members of the opposite party. The learned Magistrate by an order dated the 9th of February, 1959, attached the disputed lands Under Section 146(1) of the Code of Criminal Procedure and directed the parties to appear before the Court of the Munsif at Jahanabad on the 24th of February, 1959, for the decision of the question as to which of the parties was in possession over the disputed land. The matter thereafter went before the Munsif of Jahanabad in Miscellaneous Case No. 32 of 1959.
The proceeding before the learned Munsif of Jahanabad was covered by Sub-sections (1A) and 1(B) of Section 146 of the Code of Criminal Procedure. Ultimately, by a judgment and order dated the 18th of September, 1959,’ the learned Munsif held that the. members of the Second Party were in possession of the disputed property from the year 1953 and that the members of the first party were not in possession. The record of the case was returned to the Sub-divisional Magistrate, for passing necessary orders under Sub-section (IB) of Section 146 of the Code. The present petitioners have come up to this Court complaining of the order passed by. the learned Munsif on the 18th of September, 1959. It may be stated here that further proceedings in the Court below have been stayed by this Court by an order dated the 28th of September, 1959, while admitting this application.
2. learned Counsel for the petitioners submitted, mainly, that the order of the learned Munsif dated the 18th of September, 1959, is not in accordance with law,’ inasmuch as the learned Munsif has not complied with the specific requirements of Sub-section (1A) of Section 146 of the Code of Criminal, Procedure. This argument of the learned Counsel is based on the fact that the petitioners; who were the first party in the proceeding Under Section 145 of the Code, had filed -affidavits of 29 persons two were before the learned Magistrate when he had passed the order on the 9th of February, 1959, and which affidavits were on the record before the learned Munsif when he was dealing with the case. It has been mentioned in paragraph 5 of the petition filed in this Court, that the petitioners had filed affidavits of 29 persons which had been sent to the learned Munsif with the record of the case.
It appears from paragraph 6, that the petitioners had filed various other documents also before the learned Magistrate but that they had withdrawn those other documents, for the purpose of filing them before the Canal Department. It is, therefore, urged that the order of the learned Munsif, dated the 18th of September, is vitiated on the ground that the learned Munsif has not considered the several affidavits that had been filed by the first party and which were on the record of the case. It is argued that the learned Munsif has specifically mentioned that he found no documents filed on behalf of the first party and that this conclusion of the learned Munsif, so far as this case is concerned, is wrong, inasmuch as the affidavits which were already on record, should have been perused and considered as part of the evidence in the case. Substantially, upon these arguments it is submitted by the learned Counsel for the petitioners that the order of the learned Munsif should be quashed.
3. The history of this unnecessarily protracted litigation appears to be as follows. At the time when the proceeding Under Section 145 of the Code of Criminal Procedure was pending before the learned Magistrate, the parties had filed a large number of documents including a large number of affidavits of many persons. Under the amended Section 145 of the Code of Criminal Procedure,’ the learned Magistrate had to peruse the statements of the parties, the documents and affidavits filed by them, hear the parties and conclude the enquiry by deciding the question as to which of the parties was in possession. The order of the learned Magistrate in this case, dated the Seth of February, 1959, hardly indicates that the learned Magistrate took the trouble of coming to his decision, upon considering the materials before him. The learned Magistrate has stated thus;
Both the parties are armed with volumes of documents which are contradictory and highly confusing and do not lead to definite finding on fact of possession. Both the parties have also filed affidavits of many persons which appear to be oaths against oaths and does not help in determining the fact of possession. So I am unable to decide as to which of the parties is in possession over the disputed lands and so I consider It necessary to refer the matter to the Civil Court Under Section 146 CrIPC to give a finding on the fact of possession.
It is apparent to me that the learned Magistrate made no serious effort to consider the affidavits mentioned by him in his order. Disposal of cases Under Section 145 of the Code of Criminal ProceduTe, where affidavits have been filed by both the parties, stating that these affidavits appear to be oaths against oaths, has not been approved by this Court in a large number of decisions. Reference may be made to a decision of this Court, in the case of Shah Jamilur Rahman v. Abdul Aziz . It was stated in this case that the Magistrate should consider the affidavit of each deponent and should give his reasons for accepting or not accepting it. The order in this case was set aside on the ground that the Judgment of the learned Magistrate was vitiated for the consideration of a the affidavits fifed on behalf of the parties. Again, in the case of Rudra Singh v. Simla , the judgment the learned Magistrate was set aside on the ground that he had not considered the affidavits filed on behalf of the parties at all. It was mentioned in this decision that the affidavits cannot be brushed aside by saying that they are oath against oath. It was held that the Magistrate should consider the affidavits in the same manner in which oak evidence is considered.
In another decision of this Court, in the case of Arjurv Singh v. Singheshwar Choudhary , it was again held that the Magistrate had to consider the affidavits and give reasons for accepting the affidavits of one or the other of the parties. Our attention has also been drawn to a recent decision of a Division Bench of this Court in the case of Shreedhar Thakur V. Kesho Sao, Criminal Revn. No. 625 of 1958 D/-17-10-1960 (Pat), in which it was stated thus:
Sub-section (1) of Section 146 lays down that a Magistrate can make a reference to a Civil Court, (1) if he is of opinion that none of the parties was in possession of the subject of dispute on the date of the proceeding, or (2) if he is unable to decide as to which of then was then in such possession. As I have already said,1 the Magistrate did not, in this case, make any attempt whatever to consider or discuss the evidence in order to find whether one or the other party was in possession or none of the parties was in possession. A Magistrate cannot take recourse to Section 146 (1) merely for the purpose of shifting his own responsibility. It is only when either of the two contingencies mentioned in the sub-section arises that he can refer the case to the Civil Court.
From the exposition of law made by this Court, subsequent to the orders passed in the instant case, it is clear that the order of reference made by the learned Magistrate on the 9th of February, 1959, was not a proper order “at all.
4. Coming to the decision of the learned Munsif, after reference to him Under Section 146 (1) of the Code of Criminal Procedure, it appears that the learned Munsit did make an effort to come to a conclusion on the materials that were placed before him. But, unfortunately, his attention was not drawn to Sub-section (1-A) of Section I4fr of the Code, under which it was his duty, also, to peruse the evidence that had already come on the record on be half of the first party. What-happened in the Court of the learned Munsif was this. On the 12th of September, 1959, a petition for time was filed by the first party/This petition was rejected by the learned Munsif on the ground that the case was an old one. The parties were ordered to be ready with the case at once. When the case was teen up, it appears that the first party did not co-operate and the learned Munsif proceeded to hear the case ex. parte. The last two witnesses of the second party were examined and’ argument on behalf of the second, party was made and 18th of September was fixed for delivering judgment in the case. The first two .witnesses had already been examined on the 5th of June, 1959. On the 14tn of September, however, the first party filed another petition praying that a date may be fixed for argument it behalf of the first party. This petition was rejected by the learned Munsif and, in due course, on the 18th of September Judgment was delivered: m his judgment and order, the learned Munsif has mentioned the case of the first party: He has also mentioned the case of the second party and. thereafter the learned Munsif has considered in detail the oral and documentary evidence, adduced on behalf of the second party. He has mentioned that there-was no oral evidence on behalf of the first party and he-found’ no documentary evidence of the first party as well-On a consideration of the materials that were placed before him, the learned Munsif held that the second party were in possession of the disputed property from the year 1953.
5. It is contended by the learned Counsel for ‘ the petitioners that having stated the ease of the first party and the second party, in his order, the learned Mtfjjsif was bound to consider the affidavits which were already on the record. Reliance is placed on Section 146 (1A) of the Code of Criminal Procedure, where it is mentioned that on receipt of any reference, the Civil Court shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider .the effect of all such evidence, and after hearing the parties,’ decide the question so referred to it. It is urged that under the provision of law, even if no further evidence was adduced by the first party before the learned Monist, and even if no arguments were advanced before him, the learned Munsif had to peruse the several affidavits which had already been filed before the learned Magistrate and which, on reference, formed part of the record before the learned Munsif.
Our attention is drawn to the case of Narain Ganjhu v. Mt. Pancho Gaunjhin , wherein it has been held that, after a reference is made to the Civil Court, when the Magistrate finds it difficult to decide the question of possession on the materials as required by Section 145 of the Code of Criminal Procedure, there is always some, evidence of possession on the facts and circumstances of this case, the learned Munsif was bound to consider the affidavits filed by the first party, before holding that the members of the second party were in possession since 1953 and that the members of the first party were not in possession. In my opinion, the contention of the learned Counsel for the petitioners based on Sub-section (1A) of Section 146 of the Code of Criminal Procedure must be accepted, in my opinion, the decision in Narain Ganjhu’s case, so far as it has held that in a reference to the Civil Court Under Section 146 of the Code of Criminal Procedure, trireme is always same evidence on record for consideration by the Civil Court; is correct.
As a matter of fact, in this case, the order of the learned Magistrate itself makes it clear that there were evidence on record. I have already mentioned that of the voluminous documents mentioned by the learned Magistrate, at least, the affidavits of 29 persons which had been filed by the members of the first party were still on the record when the case had reached the Court of the learned Mimsit. It is clear, therefore, that the learned Munsif had to consider these affidavits on record, before coming to an adverse conclusion against the members of the first party. It is rather unfortunate that the course adopted by the: learned Munsif, although inadvertently, has resulted in protracting this litigation, after the learned Munsif had rejected the first party’s petition for time with a view to an expeditious disposal of the case. But the amendment of Section 146 of the Code of Criminal Procedure has put upon the Civil Courts a statutory duty, in the discharge of which the learned Munsif failed altogether. There is no other alternative but to quash the order of the learned Munsif, for tote reasons given above.
6. The order of the learned Munsif of Jahanabad, dated the J8tti of September, 1959, passed in Miscellaneous Case Ho. 32 of 1959, is, therefore, quashed. The case is remanded to the Civil Court for reconsideration.’ .In this connection, learned Counsel for the opposite party has submitted that a direction should be given that the Civil Court will now proceed to decide the case only on the materials that are already on the record. In my opinion, however, this Court ought not to make such an order, thereby restricting the discretion of the Civil Court in disposing of the reference in accordance with law. I, therefore, remand the case with a direction that the case should now be disposed of in accordance with law and as quickly as possible.
G.N. Prasad, J.
7. I agree.
