A Magistrate cannot refer a case to the Civil Court under Section 146(1) of the Code of Criminal Procedure unless he first comes to the conclusion that none of the parties was then in possession or that he was unable to decide as to which of the parties was in such possession.

R.J.Bahadur, J.

1. This is a reference by the 2nd Additional Judicial Commissioner of Chotanagpur, Ranchi, under Sec. 438 of the Code of Criminal Procedure recommending to set aside the order of the Magistrate dated the 24th May, 1965, by which he had referred the case to the Civil Court under Sub-section (1) of Sec.146 of the Code of Criminal Procedure for its opinion.

2. The facts, briefly stated, are these: On a police report, a proceeding under Sec.144 of the Code was drawn up on 18-1-1963 on the ground that there was an apprehension of breach of the peace in respect of .06 acres of land of plot No. 878. The Subdivisional Officer ordered the parties to show cause and the first party in the meanwhile filed a petition with certain assertions, the details of which are not necessary for the present purpose. The learned Magistrate directed the police to make an inquiry and submit its report, which it did firstly on 27-1-3963 and again on 29-1-1963 to the effect that there was an apprehension of breach of the peace in respect of bigger area of the plot. Upon hearing the parties, the learned Magistrate converted the proceeding into one under Sec.145 of the Code in respect of the entire plot 878 by his order dated 30-2-1963. The parties filed their written statements, documents and affidavits.

The case of the first party is that he had purchased 50 decimals out of plot No. 878 by virtue of a registered sale-deed dated 29-4-1960 and that he was all along in possession of the same. The case of the second party is that Jamuna Prasad, one of its members, had purchased the entire area by virtue of two sale-deeds, both of the year 1958, executed by Bhagal Oraon and Bliawa Oraon. Their further case is that Jamuna Prasad had let out a part of this plot to Nagendra Pradhan and others and had also inducted Bum" Orain over the land, the area being about 10 decimals. The rest was in his possession and they have ever since been in possession of the same. The learned Magistrate heard the matter and by his order dated the 24th May, 1965, referred the case to the Civil Court for its opinion, as stated earlier.

3. The matter was heard in the Civil Court and the learned Munsif by his order dated the 30th June, 1966, held that the first party was in possession of 50 decimals of plot No. 878 and 10 decimals in possession of Beni Grain. In respect of the remaining plot, he held that it was not in dispute and, therefore, it was not necessary to record any finding in that respect.

4. It appears that when the aforesaid order was passed by the Civil Court, the second party filed a petition before the learned Munsif that Buni Orain was not a party to the proceeding and, as such, no declaration of possession in her favour ought to have been made. Thereupon, the learned Munsif recalled his finding with regard to 10 decimals of the plot and his order was, therefore, confined to 50 decimals of the plot. The learned Magistrate, who had referred the matter to the Civil Court, on receipt of the opinion, passed the order in conformity with the order of the Civil Court.

The present reference has been made to this Court on the ground that the learned Magistrate, who had referred the matter to the Civil Court, had acted without jurisdiction in referring the case as, in the opinion of the Additional Judicial Commissioner, the provisions of Sec.146 (1) of the Code had not been appreciated by the learned Magistrate and he had, therefore, acted in excess of his jurisdiction in making a reference which he could have only done if he were unable to decide the matter himself. In other words, the condition precedent for making a reference for the Magistrate was that he must first come to the conclusion that none of the parties was then in possession or that he was unable to decide as to which of the parties was in such possession. The learned Additional Judicial Commissioner was of the view that the order of the learned Magistrate showed that he was, on the other hand