A reference to the Civil Court under Section 146(1) of the Code of Criminal Procedure is incompetent if the subject of dispute is not fully described and ascertained.

Sahai, J.

1. This application by the second party is directed against a final order passed in a proceeding under Sec.145 of the Code of Criminal Procedure. It has come before this Bench on a reference made by me while sitting singly.

2. The proceeding, which was drawn up under an order of the Sub-divisional Magistrate of Jamui dated the 18th January, 1956, related to a total area of 14.84 acres of lands comprised in seven khatas, namely, khatas Nos.189, 50, 128, 84, 175, 33 and 239, in Village Basmatha, tola of mauza Anandpur, within the jurisdiction of Lakshmipur Police Station in Jamui Sub-division. The only details given in the proceeding, which was drawn up, were the khata numbers, plot numbers and the area in dispute. There was nothing to indicate the total area of any of the plots, nor was there anything to show that the whole or a portion of any of the plots, numbers of which were given, was in dispute. Admittedly, the parties were at issue as to the possession over only portions of some of the plots; but there was nothing in the proceeding to indicate the direction in which the disputed portions in those plots lay. The boundary of none of the plots, or portions of the plots, was given. The police report, on the basis of which the proceeding was drawn up, also contained no additional details about the disputed lands. The learned Advocates for both parties have admitted before us, that, with the exception of the khatian of khata No.239 (exhibit 6), the khatian of none of the other khatas has been put in evidence. It is also conceded that there is nothing in the written statement of, or the evidence adduced by, either party to show the total area of any of the plots in dispute or to show on which side of a plot, in which only a portion was claimed, the disputed portion lay. The position thus is that it is not possible to ascertain either from the proceeding or from any other material on the record whether the whole of any of the plots mentioned in the proceeding is in dispute, nor is it possible to ascertain from which direction a portion of any plot is in "dispute.

3. By an order dated the 6th June, 1956, the learned Magistrate referred the case under Sec.146 (1) of the Code of Criminal Procedure to the Civil Court. He made no attempt whatsoever in that order to discuss the evidence, or to make an attempt to come to any conclusion on the question of possession over the subject of dispute, but merely said that the dispute was of a chronic nature, that the parties had (been?) fighting for some time, that "a finding on the factum of possession after a thorough examination of" the parties contentions would be the only permanent solution, and that it was not possible for him to arrive at a decision regarding the actual possession on "the facts, evidence and circumstances so far available".

4. The reference was heard by Mr. Shreenath Roy, Subordinate Judge, and Court, Monghyr, in his order dated the 25th May, 1957; he held that Kesho Sao, Kali Sao, Hira Sao, and Shree Narayan Sao, sons of Bhedlal Sao, who were the first four members of the first party, were in possession of the disputed lands. In the course of his order, however, he indicated that portions of several plots were in dispute, and that, as they had not been properly described in the proceeding, they could not be ascertained. At the end of the order, he said :

"some of the disputed lands are portions of plot not clearly described in this proceeding. Hence the Magistrate should ascertain those portions and describe them by their boundaries to avoid future trouble before making the order absolute in respect of them also against the second party. Let the record be sent back to the learned Magistrate for needful. "

5. On the 25th June, 1957, the first party filed a petition before the Sub-divisional Magistrate in which they indicated the side from which they claimed portions in eleven plots of five of the disputed khatas. They also mentioned the total areas of