An order under Section 145 of the Code of Criminal Procedure is binding only on the parties who were impleaded in the proceedings. The Magistrate is not entitled to come to an independent finding of his own after the civil court has decided the question of possession. The requirement that the civil court should conclude the enquiry within three months as required by Section 146(1)(B) of the Code of Criminal Procedure is directory and not mandatory. The finding of the civil court on a reference under Section 146 of the Criminal Procedure Code is conclusive and cannot be challenged in appeal or revision.

( 1 ) THIS Rule was issued upon the District Magistrate, Burdwan, and the opposite party to show cause why an order passed under Section 145 of the Code of Criminal Procedure declaring the first party to be in possession of certain plot of land should not be set aside.

( 2 ) IT appears that the disputed land belonged to the deity Sree Madan Gopal Jiu of which the petitioners (second party in the proceedings) and the father of the first party (opposite party in this rule) are the shebaits. The opposite party claimed to be in possession of the disputed land as tenant under the deity represented by the shebaits while the petitioners contended that the disputed lands were the khas lands of the said deity and were in actual possession of the bargadars of the deity.

( 3 ) A point was taken that the petitioners did not claim actual possession of all the disputed lands which they stated were in the actual possession of the bargadars of the deity and hence on the admission of the petitioners the learned Magistrate had no jurisdiction to initiate any proceedings under Section 145 of the Code of Criminal Procedure. In the proceedings the second party disputed the above point and asserted that they claimed possession in respect of the disputed lands as shebaits of the deity.

( 4 ) THE proceedings in this case were drawn up on 6-6-1956, and the parties filed their affidavits. In substance, the second party petitioners denied that the opposite party had ever been in possession of the lands in dispute. The learned Magistrate on a consideration of the case of both sides was unable to decide which side was in possession and therefore sent the case to the 3rd Court of the Munsif-at Burdwan under the provisions of Section 146 (1) of the Code of Criminal Procedure to decide the question whether any or which of the parties was in possession of the subject of the dispute at the date of the order. Thereafter the learned Munsif under the provisions of Sub-section 1 (a) of Section 146 considered the evidence and after hearing the parties came to the conclusion that the petitioners were in possession of plots Nos. 3773 and 3786 of khatian No. 981 of Mouza Keranda and that none of the parties was in possession of plots Nos. 4923 and 4980 of Khatian No. 619 of Mouza Khargram and that the remaining, plots were in possession of the first party. Thereafter the learned Magistrate proceeded to dispose of the proceedings under Section 145 in conformity with the decision of the civil court.

( 5 ) A point has been taken there has been no finding by the trial court as to who was in possession of the land in dispute on the date of the proceeding. A reference to Sub-section (4) of Section 145 of the Code will show that "the Magistrate shall. . . . . . . . . . . . . and i possible decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject. Now, if the Magistrate was unable to decide as to which of them was then in such possession, the Magistrate was under the provisions of Section 146 of the Code of Criminal Procedure to forward the records of the proceedings to a civil court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in Sub-section (4) of Section 145 of the Code of Criminal Procedure. This the Magistrate has done in the present case.

( 6 ) IT is next urged that inasmuch as some shebaits of the deity and some bargadars who were actually cultivating the land had not been made parties, an order under Section 145 of the Code of Criminal Procedure will not be binding upon those who have not been made parties to the proceeding, I have been referred to two unreported decisions of this Court. The case of Tarapada Nag Choudhury Cri. Revn. No. 193 of 1957 (Cal) decided by S. K. Sen J. is on the point that if a person entitled to a disputed land be not