ORDER
S.P. Singh, J.
1. This application in revision has been preferred by two, persons, namely, Kartik Sahu and Mt. Sita Kumari of village Chakai, police station Chakai, district Monghyr, challenging the legality o£ the order dated the 28th November 1961 passed by Sri. P. prasad, a magistrate of the 1st class at Jamui in a proceeding under Section 145, Criminal Procedure Code. It appears that there is a dispute between the petitioners who are second party to the proceeding on one side and the opposite party who are first party to the proceeding with regard to 0.2 acre of land forming part of plot No. 256 appertaining to khata No. 117 situated in village Chaka, police station Chaka. As there was an apprehension of a breach of’ the peace, the Sub-divisional Magistrate, Jamui, drew up a proceeding under Section 144, Criminal Procedure Code, on the 14th February 1960 on receipt of a police report and later on converted that proceeding into one under Section 143 of the Code in April of the same year and transferred it to the magistrate named above for disposal. On the 27th March 1961 the said magistrate, after examining the respective cases of the parties and considering the materials available before him made a reference to the Civil Court under Section 146(1), Criminal Procedure Code, where both the parties adduced evidence in support of their respective claims to the disputed property. Towards the close of the proceeding the learned Munsif of Jamui to whom this reference had been made found that the disputed land had not been properly described. Consequently, he made a reference to the Sub-divisional Magistrate for the correction of the particulars of the disputed property which was, however, done by the learned Sub-divisional Magistrate after drawing up a fresh proceeding and after giving both the parties an opportunity of being heard. It was after that that the order dated the 28th November 1961 sending the case back again to the Munsif was passed. This order runs as follows:
A petition has been filed on behalf of Krishna Lal Sah, 1st party No. 2, stating therein that his previous written statement may be treated as his written statement.
Send this record to Munsif, Jamui, again for intimating his decision on point of possession.
2. Mr. B.P. Samaiyar appearing on behalf of the second party petitioners here has urged that this order can hardly be taken to be an order of reference as contemplated under Section 146(1). Criminal Procedure. Code, inasmuch as the learned Magistrate has made no attempt whatsoever the decide the question of possession; nor does it indicate that he was unable to do so in spite of his attempt. Mr. Samaiyar’s argument therefore is that this order of reference is altogether without jurisdiction. He has in this connection relied upon Bench decision of this Court in Sridhar Thakm v. Kesho Sao which enjoins upon a magistrate to make an honest effort first of all to come to a decision regarding the possession of the parties after going through the evidence adduced before him. Their Lordships have deprecated the practice of the magistrate in shifting their responsibility to a Civil Court. The Sámi view is reiterated in another decision of this Court in Dwarka Prasad v. Sobhakant Thakur 196(SIC) BLJR 131 where it has been laid down that if magistrate makes a reference under subsection, of Section 146 without making a serious effort to decide the question of possession it is certain improper but on this account the reference cannot be held to be incompetent.
3. Mr. Tara Kanta Jha appearing on beheld of the first party has contended that the questioin raised by Mr. Samiyar is answered by the ever decision reported in 1963 BLJR 131 cited by his inasmuch as even if the magistrate has failed make a serious effort to decide the question possession, howsoever it may be improper, an reference made by him to a Civil Court cannot be deemed to be incompetent. I agree with this aspect of the argument advanced by the learned Counsel on behalf of the opposite party. It is no doubt improper for a magistrate to make a reference to a Civil Court without having given his thought to the evidence adduced by the parties concerned but if a reference is made by a Magistrate to a Civil Court, that reference cannot be held to be incompetent simply on that ground. In this case, however, we find that the impugned order no doubt is quite cryptic and vague but in actual fact this is not the real order of reference. This order has reference to the previous order of reference which was recorded by the learned magistrate on the 27th March 1961. In that order I find that the learned Magistrate has made an honest attempt to give a decision regarding possession of the parties and when he felt unable to come to a decision, he made a reference. That being so, the impugned order cannot be set aside on the ground of its vagueness.
4. Mr. Samaiyar has argued that this order was passed after a fresh proceeding was started by the magistrate and, as such, the learned Magistrate should have re-examined the question of possession before recording the impugned order. The order sheet of the case, however, will show that tooth the parties relied upon the previous evidence and their written statements filed and they did not want to say anything fresh. Furthermore, the proceeding was still pending before the Civil Court and the case had been sent back to the learned magistrate for the correction of the area and other particulars of the disputed property. That being so, I am inclined to hold that the impugned order was not the duly order regarding the reference made in this I may incidentally refer to the Full Bench decision of this Court in Raja Singh v. Mahendra Singh, wherein it has been mentioned that this Court will be too reluctant to interfere with a finding of the Civil Court under Article 227 of the Constitution even though this Court has the power to do so. It has also been held that when a revision is preferred under Section 145(1B), not only the operative order of the Magistrate but the entire proceeding including the findings of the Civil Court are before the Court, and therefore the High Court can, in appropriate cases, interfere with the findings of the Civil Court, if they are in flagrant violation of the well recognised principles of law. That being so, the petitioners will not at all be prejudiced even if they choose to come to this Court after the Civil Court records a finding and the same is incorporated in the decision of the learned Magistrate before whom the proceeding is pending.
5. Thus regard being had to all these facts and circumstances, I am clearly of the view that there is absolutely no merit in the application. It is accordingly rejected.