The Civil Court is bound to give a decision on the question of possession referred to it by the Magistrate, even if the parties do not adduce any evidence.

Kanhaiya Singh, J.

1. This application in revision arises out of a proceeding under Sec.145 of the Code of Criminal Procedure. This proceeding was started at the instance of Mt. Pancho Gaunjhin, opposite first party. Notices were issued to the parties concerned in the dispute as provided in Sec.145 of the Code, and both parties appeared, filed written statements, affidavits of evidence and documents in support of their respective claims. By his order dated 18-2-1958, the Sub-divisional Magistrate attached the properties in dispute under Section 146(1) of the Code of Criminal procedure, and forwarded the record of the proceedings to the Civil Court having jurisdiction to decide the question whether any and which of the parties was in possession of the subject of the dispute. His order is in the following terms :

"There is no sufficient or reliable evidence before me to decide as to which party was in actual physical possession of the lands at the time this proceeding was started, I am, therefore, unable to decide the issue of possession over the disputed lands. The lands are, therefore, attached under Sec.146 (1) Cr. P. C. and the case is referred to the Civil Court to decide the question of possession."

The records were accordingly placed before the Munsiff, Ranchi but the parties did not appear before him on the date fixed. The learned Munsif gave them several adjournments but of no avail. The parties failed to appear before the learned Munsiff. In these circumstances, the learned Munsif returned the records to the Sub-divisional Magistrate on 17-3-1959, with the following observation :

"Neither party takes any steps even today. Several dates have been given to the parties but no one turns up on their behalf. I have no alternative but to return the record to the learned Magistrate concerned for the needful. The miscellaneous case is accordingly disposed of."

Having come to know of the reference being returned to the learned Sub-divisional Magistrate, the petitioner made an application to the learned Sub-divisional Magistrate on 30-5-1959, praying for appointment of a receiver till the decision of the case and also for suitable action for decision in accordance with law. The learned Sub-divisional Magistrate declined to pass any order and disposed of this application with the following observation:

"Heard. The party can go in revision if he so desires against the order of the Munsif. File."

It is this order for the revision of which the parties have moved this Court.

2 Learned counsel appearing for the petitioner put forward the argument that after the receipt of the reference under Sec.146(1) of the Code of Criminal Procedure, the Munsif is bound to give a decision on the question of possession, and that it was incompetent for the Munsif to return the records back to the Magistrate. Learned counsel pointed out that under Sec.146 or for the matter of that under any other section of the Code of Criminal Procedure, there is no provision for return of the reference by the Munsif to the Magistrate concerned. His further contention was that if the parties did not choose to adduce any evidence in, spite cf the opportunity being afforded to them, the proper course for the Munsif was to decide the question of possession on the materials already on the record, and deliberate refusal by the parties to contest before the Munsif, or default of their appearance before him will not involve either rejection of the reference or its return to the Magistrate concerned.

3. Mr. R. P. Katriar, appearing for the opposite party, however, contended that in the circumstances the course adopted by the learned Munsif was the only proper course that could have been adopted, and the Court should not be kept at the mercy of the parties. If the parties did not choose to adduce any evidence, it was not necessary for the Munsif to record any decision on the reference made to him by the learned Magistrate. He further submitted that the primary object o