In a Section 145 proceeding, the Magistrate is required to decide the factum of possession, not the right to possession. The right to possession is a matter for the Civil Court to decide.

This is a reference made by the Sessions Judge, against the order of the S.D.M., I.E.T. in a Section 145 proceeding. The first party who is the respondent herein moved the Magistrate for taking action under Section 145 Criminal Procedure Code stating that the original second party, who is the first petitioner herein interfered with his possession of one pari of land in patta No. 54/226-I.E.T. The land was also described by boundaries in the petition. The Magistrate sent it for a Police report and the Police reported that there was dispute about the land which was likely to create a breach of the peace, as both the parties were claiming to be in possession of the land, the first party claiming it as in patta No. 54/226 while the second party was claiming it as part of patta No. 54/471. The learned Magistrate issued a preliminary order on 22-8-1962 stating that there is dispute regarding one pari of land under patta No. 54/471 and that there was likelihood of breach of the peace and he directed the attachment of the said land.

After both the parties appeared before the Magistrate, the first petitioner herein filed a petition stating that the one pari of land in patta No. 54/471, which was in dispute belonged to his two sons and was in their possession and that he had no claim in respect of it, as his two paris of land were to the south of the disputed land. Thereupon the Magistrate on 9-11-1962 added the sons of the first petitioner as second party Nos. 2 and 3 and posted the case for their written statement and affidavits. They appeared on 19-11-1962 and filed written statement and affidavits. The first party then filed an application before the Magistrate stating that the description of the patta number in the order of attachment was wrong and that it should be described as patta No. 54/226 and not as patta No. 54/471. The learned Magistrate did not pass any order on the said application. He proceeded to dispose of the case on the affidavits and documents produced before him and he held that the disputed land was in the possession of the first party.

2. Now the Sessions Judge has stated that the learned Magistrate attached the disputed plot as in patta No. 54/471 and disallowed the application of the first party for correcting the description of the patta number even though the first party's claim was for a land in patta No. 54/226, that the duty of the Magistrate was to have issued a commission to decide whether the disputed land was in patta No. 54/226 or in patta No. 54/471, and that the wrong description of the land in dispute in the preliminary order and the failure to get it fixed at the spot by issuing a commission vitiated the proceedings. Secondly, he has pointed out that when the preliminary order was issued, petitioners 2 and 3 were not before the Court, that notice of the preliminary order should have been served on the newly added parties and that the final order passed without such notice vitiated the enquiry.

3. At first sight, I felt that the reference should be accepted in this case. But having perused the entire records in the case, I find myself unable, to accept the reference made by the Sessions Judge. The dispute in this case between the parties is about one pari of land which is described by boundaries. Both parties admit that the boundaries are correct. Thus, there is no dispute about the identity of the property. It is only in a case where there is dispute about the identity that a commission or local inspection would be useful. But here in this case as both the parties were claiming the same identical land, it was not necessary to issue a commission or to have a local inspection.

4. No doubt, the claim of the first party was that the land as in patta No. 54/226, while the claim of the second party was that it was in patta No. 54/471. That is a dispute relating to the right to possession which it is not for a Magistrate to decide. The Magistrate has to decide only the factum of possession when the