K.B.N Singh, J.:— This revision is direct, ed against an order declaring the possession of the opposite party in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) in consonance with the findings of the Civil Court recorded on a reference made under section 146(1) of the Code.
2. The main contention of Mr. Pandey appearing on behalf of the petitioner is that the order dieted the 27th July, 1967, by which the learned Magistrate referred the proceeding under section 146(1) of the Code was invalid inasmuch as the learned Magistrate made no effort in the said order to discuss the evidence at all from which it could appear that he was unable to decide the question of possession and, hence, he was referring the matter to the Civil Court. He has, therefore, urged that the reference being itself invalid, the impugned order of the learned Magistrate recorded under Section 145 of the Code on the basis of the findings of the Civil Court under Section 146(1B) of the Code was with, out jurisdiction. Reliance was placed on a Bench decision of this Court in the case of State of Bihar v. Harl Mishra, (AIR 1965 Pat 411) : (1965 (2) Cri LJ 527) in support of the submission that the invalidity of the reference me de the subsequent orders wholly without jurisdiction. It was for consideration of that question that the matter has been referred to a Division Bench.
3. A perusal of the order of the learned Magistrate referring the matter to the Civil Court dated the 7th July, 1967 (Annexure-1) undoubtedly shows that he has made no attempt whatsoever to consider or discuss the evidence in order to find out whether any and which of the parties was in possession or none of the parties was in possession. It is the duty of the Magistrate to analyse and discuss the evidence and it is only when he is unable to decide an to which of the parties is in possession of the subject in dispute, that he can refer the matter to the Civil Court for a finding as to which of the parties was in actual possession. Such powers are not to be exercised lightheartedly. Certainly the manner in which the learned Magistrate has referred the matter to the Civil Court is highly condemnable and reprehensible. All the same none of the parties challenged it before any higher Court. They appeared before the learned Munsif and produced evidence before him. It was only after the final order was passed Against the petitioner, who was the first party to the proceeding, in pursuance of the findings of the Civil Court, that the question is sought to be raised that the invalidity of the reference will also vitiate the final order and make it without jurisdiction. Reliance is placed on the said Bench decision in support of this submission. I do not think there is any substance in the submission of the learned Counsel. The question that came for consideration in the above Bench decision was about the invalidity or otherwise of the reference at the initial stage and that Bench decision does not lay down any such proposition that the invalidity of the reference under section 146(1) of the Code would make the final order in the proceeding based on the decision of the Civil Court, a nullity. In the case reported in AIR 1965 Pat 411 : (1965 (2) Cri LJ 527) (supra), the reference was made even before any evidence was led before the Magistrate, simply because a title suit between the parties was pending. An objection was takers before the Munsif by one of the parties that the reference was invalid. Thereafter the learned Munsif referred the matter to this Court posing three questions, namely, (1) whether it was open to a Magistrate to refer a case without drawing up a statement of facts and without expressing any opinion that he is unable to decide the question of possession, (ii) whether it is open to the Civil Court to return back the reference if it was not in accordance with law as provided under section 146(1) of the Code and (iii) whether it would be within the competence of the Civil Court to decide the question of possession even if each a reference is made. It was in that context that Anant Singh, J., who delivered the judgment of the Bench answered questions Nos. (i) anal (iii) posed by the learned Munsif in negative and held, in agreement with the learned Munsif, “that the reference by the learned Magistrate was incompetent and, in such as circumstance, any decision that may be givers by the Civil court on even taking fresh evidence before it, would be surely without jurisdiction.” and while answering question no. (ii) it was held that “the Civil Court, not being a Court of appeal of the Magistrate's court, is not competent and has no jurisdiction to decide the propriety of any reference made by a Magistrate under section 146(1) of the Code of Criminal Procedure. The question whether such a reference by the Magistrate is proper or improper has to be decided by it higher court, having necessary jurisdiction…..”. It will be relevant to mention that Anant Singh, J., has relied on an earlier Bench decision of this Court in the case of Shreedhar Thakur v. Kesho Sao (AIR 1962 Pat 468) : (1962 (2) Cri LJ 770) where it was held that the final order in a proceeding under section 145 of the Code could not be set aside merely on the ground of invalidity of the reference. The relevant portion of the decision in Shreedhar Thakur's case may be usefully quoted:—
“As I have already said, the Magistrate did not in this case, make any attempt whatever to consider or discuss the evidence in order to find whether one os the other party was in possession or none of the parties was in possession. A Magistrate cannot take recourse to Section 146(1) merely for the purpose of shifting his own responsibility. It is only when either of the two contingencies mentioned in the sub-section arises that he can refer the case to the Civil Court. I must therefore, express my strong disapproval of the way in which the Magistrate referred the present case under Section 146 to the Civil Court: but I am unable to hold that the reference is incompetent merely for that reason.”
4. It will be relevant to mention here that in Shreedhar Thakus's case, Sahai, J., who delivered the judgment of the Bench set aside the order of the learned Magistrate and quashed the proceedings itself on the ground that the proceeding was completely vague as there was no material on the record on the date of the reference by which the subject in dispute could be identified, and not on the ground that the reference was not properly made under section 146(1) of the Code. What has been quashed in that case is not only the order of the learned Magistrate, bub the proceeding under section 145 of the Code itself on the ground that the proceeding itself was vague. It is difficult to hold that while relying on Shreedhar Thakur's case, Anant Singh, J., really intended to lay down any contrary proposition that invalidity of the reference under section 146(1) of the Code on account of the failure on the part of the Magistrate to discuss the evidence from which his inability to decide the question of possession would be apparent, will make the reference as without jurisdiction in the sense that it would vitiate the final order passed in the proceeding. That question was not for decision before Anant Singh, J., nor, in my opinion, that question has been decided. Any observation in this regard must be considered to be obiter. It will be relevant to mention that the learned Judge himself has considered those observations to be obiter in an unreported decision in the case of Chandar Singh v. Jiut Mahto, (Criminal Revn. No. 597 of 1965) disposed of on 30-9-1966 (Pat) while repelling a similar contention, as is raised before us, and the same may usefully be quoted below;—
“Mrs. Lal has, however greatly emphasised another point, that, while making the reference the learned Magistrate did not apply his mind to decide for himself the question of possession, but that he shirked his responsibility, by making the reference to the learned Munsif. She has further pointed out that, although the learned Magistrate purported to send the statement of facts of the case, he sent only a history of the proceeding. On these-grounds, she characterised the whole reference as being incompetent and without jurisdiction. In support of her contention, she has relied upon a Bench decision of this Court in (1965 BLJR 97) : (1965 (2) Cri LJ 527 : AIR 1965 Pat 411). This was a judgment delivered by me and agreed to by G.N Prasad, J. There are no doubt, some observations in this case which lend support to the contention of, Mrs. Lall. But, judged in the context of that case, those observations were not relevant not necessary. At any rate, they are certainly not the ratio decidendi. It is manifest from the fact that an earlier Bench decision of this Court in (1962 BLJR 287) : (1862 Cri LJ 770 : AIR 1962 Pat 468) had been approvingly referred to in that case and in Shreedhar Thakur's case the Court had, in similar circumstances, laid down and, if I may say so with great respect, rightly that reference could not be characterised as incompetent in the sence of want of complete jurisdiction, a imply because the Magistrate had failed to decide foe himself the question of possession, although their Lordships bad disapproved of the con duct of the Magistrate in shirking his responsibility to the Munsif. The facts in Hari Mishra's case, AIR 1965 Pat 411 : (1965 (2) Cri LJ 527) were entirely different and the observations therein should not be extended beyond the facts of that case……”
5. Mr. Pandey has also relied in support of his submission on a single Bench decision of this Court in the case of Mithila Saran Singh v. Nohora Singh (AIR 1970 Pat 97) : (1970 Cri LJ 481). This decision is of G.N Prasad, J., who was a party to the decision reported in AIR 1965 Pat 411 : (1965 (2) Cri LJ 527) (Supra). In that case after the learned Munsif pointed out the invalidity of the reference to the Magistrate as being not in accordance with law, the Magistrate himself, proceeded with the proceeding and decided it and made no second reference to the Civil Court. It was argued before G.N Prasad, J., that the order of the learned Magistrate was without jurisdiction as the learned Magistrate could not decide the proceeding himself after it was re turned by the civil court when the proceeding was referred to it under section 146(1) of the Code for a decision on the point of possession. It was in that context that referring to the cease of the State of Bihar, the following observations were made by G.N Prasad, J.—
“In that very decision, it has been pointed out that the reference of the kind made in the present case was not merely irregular but incompetent and that if in such circumstances the civil court would have proceeded to give its decision on the question of possession then that would have been without jurisdiction. In other words, in the present casa, there was no valid reference to the civil court at all so as to have clothed it with jurisdiction to give its finding on the question of possession. In the absence of jurisdiction having been conferred upon the civil court in accordance with law, the learned Munsif could neither record his finding nor make any direction to the learned Magistrate as to what course he should adopt after the return of the records from the civil court.”
“Therefore, after the receipt of the records from the civil court, it was for the Magistrate to decide as to what course he ought to adopt, whether to make a proper reference to the civil court under S. 146(1) of the Code or to proceed under Section 145(4).”
6. The question whether the invalidity of the reference would be a ground foe setting aside the final order in a proceeding under S. 145(4) of the Code was not a matter which arose for consideration in the case reported in AIR 1970 Pat 97 : (1970 Cri LJ 431) (supra), and any observation made therein, relying on the decision in the case of the State of Bihar, (supra) is obviously obiter. Mr. Pandey has also relied on a decision of this Court in the case of Jamuna Prasad v. Bisheshwar Sah (AIR 1971 Pat 21) : (1971 Cri LJ 231) in support of his submission. He has urged that in that case invalidity of the reference was held to be sufficient to vitiate the final order. Bahadur, J., who decided the case has relied on the Division Bench decision of this Court in AIR 1962 Pat 463 : (1962 Cri LJ 770) (supra) and has observed as follows:—
“Then their Lordships considered various matters that were raised before them and took the view that if a Magistrate made a reference under Section 146 in which the subject of dispute was altogether vague the reference must be held to be incompetent and illegal, They further held that the entire proceeding after such reference must necessarily be struck down as being without jurisdiction. I, there, fore, read this decision also as an authority in a case where the learned Magistrate has shirked his duty or has, without proper reasons, made a reference. When the condition precedent did not exist in the eye of law then the whole reference was incompetent and the entire proceeding after that will have to be struck down.…”
7. It is obvious that Shreedhar Thakur's case does not lay down any such proposition which Bahadur, J., read it as laying down. On the other hand, the proposition laid down in the above case was contrary to that. It is, therefore, manifest that the decision on the point being contrary to the above Bench decision is obviously not a good law. Where a reference has been made, without any effort on the part of the Magistrate to consider the question of possession, so as to indicate that he has made efforts to decide the question of possession and was unable to decide which of the parties were in possession of the disputed land, obviously being not in accordance with the provisions of section 146(1) of the Code, would be liable to be set aside on that account, if challenged at the initial stage. But every order which is not in accordance with law, is not necessarily without jurisdiction making all the subsequent orders a complete nullity. But if any of the parties does not take exception to the infirmities in the order of reference and allows it to go on unchallenged and proceeds with the proceeding and take a chance of the decision being in his favour, such a party cannot be allowed to turn back and challenge the final order, in case it goes against him on the basis of the infirmity in the reference made by the Magistrate under section 146(1) of the Code. The revisional powers of this Court, however, under Section 439 of the Code, are, after all, discretionary and are meant to be exercised for furthering the ends of justice.
8. Mr. Pandey has also urged that the Magistrate while forwarding the record has not drawn up any statement of facts of the case as required under section 146(1) of the Code. The failure to forward the statement of facts along with the records also, in my opinion, will not be a fatal defect so as to invalidate the order, as the entire records were forwarded to the munsif. I am not suggesting for a moment that a Magistrate should not forward the statement of facts as laid down under section 146(1) of the Code, but on the other hand, I must emphasise that the Magistrate should have been careful in com plying with the requirements of the law. The view that I have taken gains support from the observation of Goswami, J., as he then was, in the case of Ram Lakhan Rai Chaudhary v. Raghunath Chaudhary (AIR 1969 Assam and Naga 81) : (1969 Cri LJ 854).
9. Mr. Pandey has also urged that the (affidavits of witnesses in the instant case were sworn before a Magistrate who was not in seisin of the proceeding and, therefore, they could not be relied upon. This question has been fully considered in a Bench decision of this Court in the case of Jaldhari Mahto v. Mt. Rudia in Cri. Revn. Nos. 2586 of 1969 and analogous cases (vide 1973 BBC 1628 : (reported in 1974 Cri LJ 1216)) where it has been held that the order will not be liable to be set aside on this ground, in absence of prejudice, as it was a curable defect; under Section 537 of the Code. The argument of Mr. Pandey, that there was a conflict between this decision and an earlier Bench decision of this Court in the case of Mahesh Thakur v. Lakshman Prasad Thakur, (1971 Pat LJR 317), is also without substance inasmuch as the latter Bench decision took notice of Section 537, of the Code, not noticed in the earlier case, and held that it was a curable defect and will not per se make the order invalid so as to warrant interference in exercise of the revisional jurisdiction of this Court, in absence of prejudice. It may be pointed out that no argument has been advanced before us that the petitioners were, in any way, prejudiced on account of the affidavits having been sworn before a Magistrate who was not in seisin of the proceeding. This submission of Mr. Pandey also has got no substance.
10. Mr. Pandey has lastly urged that the documents filed by the petitioners have not been considered. This brings us to the merits of the case of the parties. Undisputedly the disputed land having an area of 9.83 acres of khata No. 101 situate in village Kharwa within Rafiganj police station, came in possession of Mahanth Abhai Narain Gir and became his bakasht land by virtue of an auction purchase in 1935. The petitioners' claim is based on a purchase dated the 15th June, 1966, from one Parma Nand Giri who claims to have inherited the properties from Atma Nand Giri as his chela. The case of the second party, on the other hand, is that the land his been settled with them by Mahanth Abhai Narain Giri about 35 years ago and since then they have been in possession. The learned Magistrate has relied on a petition filed in 1963 by Parma Nand Giri, the vendor of the first party (petitioners), in which he admitted the possession of the 2nd party, though on behalf of Atma Nand Giri. The learned Magistrate has also referred to the lent receipts filed on behalf of the second party (opposite party) besides papers of the revenue courts where the lands have been shown to be in possession of the second party, in the earlier litigation between Parma Nand Giri and the second party. He has observed that there was no evidence on the record to show that after the purchase in the year 1966, the first party (petitioners) dispossessed the second party (opposite party) and came in possession of the disputed land. He did not rely on the affidavits of the witnesses of the first party who deposed that the first party came in possession of the disputed land from before their purchase and relied on the affidavits of the witnesses of the secund party in support of their possession. It is therefore, manifest that the learned Magistrate has not committed any illegality in accepting the affidavits of the witnesses of the second party and rejecting that of the first party in absence of any document to show that they had, at any point of time, dispossessed the second party. The documents mentioned in para, graph 6 of the application, which are alleged as having not been considered by the learned Magistrate, relate to a period not relevant for consideration of possession of the petitioners after their purchase. All documents mentioned therein relate to a period prior to the purchase made by the petitioners, and as such they are not relevant for consideration of the petitioners' possession in a proceeding under Section 145 of the Code. The learned Magistrate, therefore, has not committed any illegality so as to warrant any interference in exercise of the revisional power of this Court. In the result, there being no merit in the revision application, it is, accordingly, dismissed.
Nagendra Prasad Singh:— I agree.
11. Application dismissed.