Uday Sinha, J.:— This application in revision by the first party is directed against the final order passed in a proceeding under Section 145 of the Code of Criminal Procedure 1898 (hereinafter referred to as ‘the Code’) in respect of lands described in the notice to the proceeding. S.A Hussain, J. referred it to a Division Bench to be heard along with Criminal Revision No. 1811 of 1969, which had already been ordered to be placed before a Division Bench earlier. Thereafter, this application and Criminal Revision No. 1811 of 1969 were listed for hearing before a Division Bench. Anwar Ahmad and B.D Singh, JJ. after hearing counsel for the parties, being of the view that there seemed to be a direct conflict between two Bench decisions of this Court, namely, (1) Shreedhar Thakur v. Kesho Sao (A.I.R 1962 Patna, 468) and (2) State of Bihar v. Hari Mishra (A.I.R 1965 Patna, 411), ordered that the two applications be placed before Hon'ble the Chief Justice for finally settling the law laid down in the two decisions. That is how the matter was referred by the Chief Justice to the present Full Bench. Criminal Revision No. 1811 of 1969 became Incompetent, as the sole petitioner died and no one prayed to be added as petitioner in his place. It was, therefore, dismissed as incompetent by order dated 28.4.1977, passed in that case.

2. Before considering the points arising in the case, it would be useful to set out a chronology of events. On 17.11.1963 a proceeding under Section 144 of the Code was drawn up between the parties. Before the proceeding under Section 144 could come to a conclusion, the learned Magistrate drew up a proceeding under Section 145 of the Code in respect of the same lands and the lands in dispute were attached in terms of Section 145(4) of the Code. After the proceeding had been drawn up, third and fourth parties to the proceeding were also added parties to the proceeding. The learned Magistrate who was in seisin of the case finding himself unable to decide which of the parties was in possession of the subject of dispute, forwarded the record of the proceeding to a Civil Court to decide any and which of the parties was in possession of the subject of dispute on the date of the order. On receipt of the record the Civil Court finding that the proceeding had not been signed by the learned Magistrate, sent back the case record to the learned Magistrate for his signature. The learned Magistrate therefore, signed the proceeding on 28.3.1966 and returned the record to the Munsif, Motihari. A separate order-sheet was started by the Munsif. The order sheet of the Civil Court dated 11.1.1967 shows that the District Judge transferred the case to the file of First Additional Munsif for finding in regard to possession. On 7.8.1967 the learned First Additional Munsif, Motihari being of the view that the reference to Civil Court, not being in terms of the provisions of Section 146(1) of the Code was incompetent, returned back the record to the Court of the Magistrate, First Class for drawing up a proper reference. The order of the learned Additional Munsif is in the following terms:—

“2nd and 4th party files hazari. Perused the reference order dated 18.2.65 It appears that neither the facts of the case of both the parties have been recited even briefly nor the evidence adduced by the parties including the affidavits has been considered by the learned Magistrate at all. As such the reference does not fulfil the requirements laid down in Section 146(1) of the Cr. P.C As such the reference order does not clothe the civil court with the jurisdiction to answer the reference. As such it is humbly recommended to the Magistrate that a proper reference be drawn up by him and then the record may be sent to one for the disposal. This disposes of the reference for the time being.”

3. The case was placed before the learned Magistrate on 25.8.1967 on which date he issued notice to the parties to appear before him on 14.9.1967 On 18.12.1967 the case was transferred to the file of Shri S.S Sinha, Honorary Magistrate, First Class for hearing. On 7.2.1968, Mossamat Jokhani was added as the party to the proceeding by the learned Magistrate. While the matter was pending before the learned Honorary Magistrate, a petition was filed by third and fourth parties to the proceeding on 12.10.1968 which was to the effect that they had compromised the case and that the fourth party was in possession of the lands in dispute. The case was ordered to be put up for bearing on 12.11.1968 Parties were heard on 12.11.1968 and 21.11.1968 The first party prayed for time for making their submissions. Time was granted only for that day. The case-was to be put up, on 30.11.1968 The second, fourth and fifth parties appeared but the first party (petitioners) chose to absent themselves. Final order was ultimately passed by the learned Magistrate on. 3.2.1969 by which he declared the fourth party to be in possession of the lands in dispute. Being aggrieved by the order of the learned Magistrate the petitioners (first party) moved this Court in revision for setting aside the order of the learned order of the learned Magistrate.

4. The first point urged on behalf of the petitioners was that the order of the learned Magistrate dated 18.2.1965 referring the case to Civil Court was a competent and valid reference and, therefore, the Civil Court alone had the jurisdiction to decide which of the parties was in possession of the lands in dispute. By the same process of reasonings it was contended that the Civil Court having jurisdiction to decile the question of possession, the jurisdiction of the Criminal Court came to an end and the Civil Court could not be divested of the jurisdiction and obligation of finding possession over the lands in dispute.

5. Thus whether the reference by the learned Magistrate to the Civil Court was competent or not in the instant case assumes importance. This point came up for consideration in (1) Shreedhar Tbakur (Supra) and (2) State of Bihar v. Hari Mishra (Supra) In Shreedhar Thakur's case a Division Bench of Sahai and Untwalia, JJ was of the view that in terms of Section 146(1) of the Code a Magistrate could make a reference to a Civil Court (i) if he was of the opinion that none of the parties was in possession of the subject of dispute on the date of the proceeding, or (ii) if he was unable to decide which of them was then in such possession. Their Lordships observed that the Magistrate had not made any attempt whatsover to consider or discuss the evidence in order to find whetherone or the other party was in possession or none of the parties was in possession. It was also observed that a Magistrate cannot take recourse to Section 146(1) merely for the purpose of shifting his own responsibility and it was only when either of the contingencies mentioned in the Sub-section arose that he could refer the case to the Civil Court. Their Lordships therefore, expressed their strong disapproval of the way in which the Magistrate had referred the case under Section 146 to the Civil Court. Bui it is noteworthy that in spite of the infirmity alluded to by Sahai, J. with whom Untwalia, J. concurred, it was held that the reference could not be held to be incompetent merely incompetent merely for that reason. To emphasize the verdict of their Lordships I cannot do better than to quote what their Lordships observed which is as follows:—

“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.”

6. While the decision of the Bench presided over by Sahai, J. laid down that the reference could not be held to be incompetent, a subsequent Division Bench presided over by Anant Singh, J. in (2) State of Bihar v. Hari Mishra (Supra) took the view that a reference to a Civil Court was incompetent where the learned Magistrate had not made any serious effort to find possession and where he had not drawn up statement of the facts of the case. There cannot be any doubt that there is an apparent conflict of views in the two decisions. It is noteworthy, that Anant Singh, J. referred to the case of (1) Shreedhar Thakur (Supra) and accepted it as laying down a correct law but held that the reference to Civil Court without drawing up statement of the facts of the case was incompetent. His Lordship Anant Singh, J. quoted the following sentences from Shreedhar Thakus's case (Supra):—

“A Magistrate cannot take re course 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.”

7. While Anant Singh, J. referred to and accepted the above dicta lost sight of the concluding sentence in the decison of Sbreedhar Thakur, quoted earlier, where Sahai, J. explicitly refused to hold that the reference was incompetent merely because the Magistrate had not made sincere effort to find which of the parties was in possession. Probably the attention of Anant Singh, J. was not drawn to the observation of Sahai, J. quoted earlier. The obligation of the Magistrate to draw up statement of the facts of the case cannot be held to be mandatory. The reference to a Civil Court by a Magistrate, is founded on the assumption that the former is unable to decide as to which of the parties was in possession of the subject of dispute. The matter of attachment and drawing up statement of the facts of the case are not obligatory or mandatory. A Magistrate is required to draw up statement of the facts of the case, but that is not the foundation of the jurisdiction either of a Magistrate or of a Civil Court.

8. It is true that Sahai, J. in (1) Shreedhar Thakur's case (Supra) held the reference by the Magistrate to the Civil Court as incompetent and illegal. But that was on the ground that the subject of dispute was not ascertainable either from the proceeding or the finding of the Civil Court. In his view, the subject of dispute mentioned in the proceeding was altogether vague. His Lordship's conclusion that the reference was incompetent on the ground of the proceeding being vague and not being clearly ascertainable was quite different from any conclusion about the incompetency of the reference for failure to draw up statement of the facts of the case. I am in complete agreement with the view of Sahai, J. with respect, laid down in (1) Shreedhar Thakur's case (Supra). I am unable to hold that failure to draw up Statement of the facts of the case will render the reference incompetent. Ib that view of the matter, the view of Anant Singh, J. in (2) State of Bihar v. Hari Mishra (Supra), (3) 1969 P.L.J.R 260 = A.I.R 1970 Patna, 97 (Mithila Saran Singh v. Nihora Singh) and (4), 1970 P.L.J.R 696 (Imrit Rai v. Jayanand Prasad) did not lay down the correct law. It is manifest, therefore, that the reference by the learned Magistrate to the Civil Court in the instant case was a competent one, as contended by Mr. Prabha Shankar Mishra on behalf of the petitioners. The reference to Civil Court may have been irregular but it was certainly not without jurisdiction.

9. Having concurred in the first leg of the submission of Mr. Mishra, it is difficult to go with him any further. It was contended by him that after the reference, the Civil Court was seized of the whole matter and the Criminal Court ceased to have any jurisdiction over the proceeding and, therefore, the Civil Court could not have referred back the proceeding to the Criminal Court which in turn had no jurisdiction to dispose of the proceeding finally. According to learned counsel for petitioners, the learned Magistrate was obliged to refer back the proceeding to Civil Court after drawing up a statement of the facts of the case. The first question in this connection which crops up is whether the Magistrate was divested of jurisdiction over the proceeding drawn up by him or not. I regret, I am unable to accede to the submission of Mr. Mishra in this behalf. In my view, the proceeding remains a criminal proceeding The Magistrate is at all times seized of the matters and has jurisdiction over the proceedings. The jurisdiction to decide which of the parties is in possession of the lands in dispute is always with the Magistrate. The function of the Civil Court is only advisory. A Magistrate only sends the record not the case, to a Civil Court for a finding in regard to possession. The Civil Court is not clothed with the jurisdiction to pass final orders in terms of Section 145 of the Code. I shall presently set out the reasons for the conclusion to which I have arrived.

10. It should be appreciated that a proceeding under Section 145 of the Code occurring In Chapter XII comes Into being with the initiation of a proceeding under Sub-section (1) and terminates with a final order in terms of Sub-section (4). The reference to the Civil Court in terms of Section 146 is a stage between these two termini. A Magistrate being in control of these two points in the journey of a proceeding under Section 145 of the Code must be held to be seized of the proceeding from the date it is drawn up till its conclusion. Any other interpretation would create incongruity and absurdity. If the proposition enunciated by Mr. Mishra were to be accepted as correct, it would lead to a situation where a Civil Court would be in a position to prevent a Magistrate from concluding the proceeding with utmost dispatch. That in my view, was not the intention of the Parliament. Such an interpretation would be defeating the intention of the law makers, who with a view to expeditious disposal of such disputes provided for concluding an inquiry as far as may be practicable within a period of two months. For the same reason the, Civil Court was enjoined to seed back its findings within three months. Can it be suggested by any stretch of reasoning that if the Civil Court kept on hibernating on the record for umpteen number of years, the Magistrate would have no jurisdiction to recall the reference and decide the matter in controversy himself. In my view, such a suggestion would create absurd results and defeat the central purpose of a proceeding under Section 145 of the Code. Mr. Mishra for the petitioners sought to repeal this view by urging that the remedy in the case of such a recalcitrant Civil Court would be only by either of the parties moving the High Court in its revisional jurisdiction under Section 115 of the Code of Civil Procedure. In my view, an application under Section 115 of the Code of Civil Procedure would be no answer to the problem for the simple reason that the Civil Court would not have had passed any order which could be revised by a High Court. In such a situation the proceeding would remain in doldrums.

11. Further, there are various provisions in Sections 145 and 146 of the Code which support the view that a Magistrate always retains jurisdiction over the proceeding drawn up by him although it may have been referred to a Civil Court for a finding on possession. The provision in regard to dropping of attachment contained in the proviso to Section 146(1) gives a clear indication that the proceeding always remains tied to the apron strings of a Magistrate although he has forwarded the record of the proceeding to a Civil proceeding to a Civil Court. The proviso to Section 146(1) empowers the Magistrate who has attached the subject of dispute to withdraw the attachment on satisfaction that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute. If the Magistrate had no control over the proceeding, referred to Civil Court, how on earth could he withdraw the attachment. It should be mentioned that although the record is with the Civil Court, it has no jurisdiction to withdraw the attachment. It has no jurisdiction to decide whether the apprehension of breach of the peace persists or not. The Civil Court has the limited jurisdiction of advising possession to the Magistrate, who was fountain-head of the proceeding. Further, the provisions of Section 145(5) provide another indication of the conclusion that the Magistrate retains jurisdiction over the proceeding despite the reference to the Civil Court. Section 145(5) of the Code reads as follows:—

“(5) Nothing in this section shall preclude any party so required to attend, or any other person Interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final.”

12. There need be no doubt that Section 145(5) of the Code clothes a Magistrate with jurisdiction to cancel the order drawing up the proceeding on satisfaction that no dispute which may give rise to apprehension of breach of the peace exists or existed. After reference to Civil Court if a Magistrate cases to have any jurisdiction over the proceeding Section 145(5) would be rendered absolutely nugatory. It would not be possible for the learned Magistrate to cancel the proceeding although he was satisfied that no dispute giving rise to the apprehension of breach of the peace existed. The confusion in regard to the nature of the jurisdiction of the Civil Court stems from the failure to appreciate the true nature of a proceeding under Section 145 of the Code. The primary purpose of a proceeding under Section 145 of the Code is to prevent apprehension of breach of the peace. The finding in regard to possession, although not incidental, is secondary. If a Civil Court having entered upon the reference was entitled to disregard the Criminal Court and proceed to find possession, Section 145(5) might create incongruous situations. To illustrate, the enormity of the incongruity a situation may be visualised where there is an apprehension of breach of the peace between two parties on account of possession over an immoveable property. A Magistrate after drawing up a proceeding under Section 145 of the Code refers the case to Civil Court, finding himself unable to find possession. While the records are before the Civil Court, the lands in dispute are acquired by the State Government and both the parties to the proceeding are deprived of possession over the dispute lands. The matter having been brought to the knowledge of the Criminal Court, the Magistrate finding that no apprehension on account of dispute over possession exists, cancels the proceeding as empowered by Section 145(5) of the Code. Can it be urged by any process of reasoning that the Civil Court being independent of the Magistrate is still bound to find possession of either of the parties to the original proceeding. In my view, certainly not. If the Civil Court proceeded to find possession oblivious of the fact that the proceeding had been cancelled by the Magistrate, as would happen if the submission on behalf of the petitioners were to be taken to its logical conclusion, the result would be that although the proceeding had been cancelled, the Magistrate would have on his hand a finding of a Civil Court holding X or Y to be in possession of the lands in dispute. In that situation, the Magistrate would be unable to act in terms of Section 146(1B) which lays down that on receipt of the finding, the Magistrate shall proceed to dispose of the proceeding in conformity with the decision of the Civil Court. If he proceeded to comply with this provision the result would be that the proceeding having been cancelled, the Magistrate would thereafter be obliged to declare possession of the party found in possession by the Civil Court. In my view, it would be an absurd situation. The Code could not have visualised such absurd results from the provisions contained in Sections 145 and 146 of the Code.

13. Learned counsel for the petitioners sought to counter the above view by urging that the fact that a Magistrate was empowered by the Statute to withdraw the attachment in terms of Section 146(1) proviso or to cancel the proceeding in terms of Section 145(5) itself shows that but for those provisions a Magistrate would not have any control over the subject matter of dispute. I regret, I am unable to accede to this submission. That would be missing woods for the trees. Those provisions give a clear inkling that a Magistrate never loses seisin of the proceeding although for a time the records may be with the Civil Court.

14. Learned counsel for the petitioners drew inspiration and placed reliance upon the observations of the Supreme Court in paragraph 5 in (5) Ram Chandra Agrawal v. State of U.P (A.I.R 1966 Supreme Court 1888). In my view, the Supreme Court case can be of no assistance to the petitioners. The point for consideration in that case was entirely different. The point for consideration for the Supreme Court was whether a District Judge has jurisdiction under Section 24 of the Code of Civil Procedure to transfer a reference made by a Magistrate to a particular Civil Court under Section 146 of the Code to another Civil Court. It must be held, as observed by the Supreme Court, that the proceeding before the Civil Court partakes the character of a civil proceeding, but that is quite different from laying down that the Magistrate having referred the case to Civil Court cases to have any jurisdiction over the proceeding. When the matter is before a Civil Court it is certainly before a court subordinate to a District Judge, and, therefore, the District Judge would have full jurisdiction to transfer the reference from one Civil Court to another. A decision on the question whether the proceeding before the Civil Court is a civil proceeding or a criminal proceeding is not conclusive of the matter. Even if the proceeding is in Civil Court, it is so only for a limited purpose for the simple reason that the Civil Court cannot pass final orders. It can only advise the Magistrate by a finding. In my view, therefore, the Supreme Court case is of no assistance to the petitioners. For the reasons stated the contention urged on behalf of the petitioners that the learned Munsif, in the instant case, was bound to decide the question of possession and that the criminal court ceased to have any jurisdiction over the proceeding is manifestly untenable and must be rejected.

15. According to learned counsel for the petitioners, after the Civil Court had sent back the records to the learned Magistrate, the Magistrate should have sent back the records to the Civil Court after drawing up the statement of the facts of the case and that it was obligatory on his part to do so. According to Mr. Mishra, the Magistrate had no jurisdiction to decide the question of possession and dispose of the proceeding for himself. I regret, I find no substance in this submission. The Civil Court disposed of the reference by returning back the records as will be obvious from the order of the learned Munsif dated 7.8.1967 The concluding line of that order, quoted in paragraph 2 earlier says: “this disposes of the reference for the time being.” Thus so far as the Civil Court was concerned, the reference had been disposed of. In that view of the matter, it was open to the. Magistrate either to send back the records to the Civil Court afresh after drawing up statement of the facts of the case or to decide the question of possession for himself if he considered himself able to decide that question. The fact that one Magistrate had considered himself unable to decide the question of possession could not have rendered all successive Magistrate incapable of deciding the question of possession. The Inability to decide the question of possession can have reference only to a particular Magistrate and not to all Magistrates in general. To use the expression of G.N Prasad, J. in (3) Mithila Saran Singh v. Nihora Singh (1969 P.L.J.R 260 : A.I.R 1970 Patna, Page 97) the reference to the Civil Court proved abortive. I am in complete agreement with the view of G.N Prasad, J. in that decision which is to the following effect:—

“To put it differently, the purported reference to the Civil Court made under the order of the 30th December, 1963 was abortive and it wholly failed to deprive the learned Magistrate of his normal jurisdiction to decide the proceeding in accordance with Section 145(4), Criminal Procedure Code and to transfer that jurisdiction to the Civil Court under Section 146(1) of the Code. It is also well known that the primary jurisdiction in such matters is that of the Magistrate. That is why, even after the Civil Court returns its finding to the Magistrate, it is the duty of the Magistrate to pass the final order in the proceeding in the light of the decision of the Civil Court. Therefore, since the order of the 30th December, 1963 could not validly confer any jurisdiction on the Civil Court to record its decision, the conclusion must inevitably be that the jurisdiction over the proceeding continued in the Magistrate as before. Therefore, after the receipt of the record 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 Section 146(1) of the Code or to proceed under Section 145(4).

16. I am not prepared however to hold the decision as laying down the correct law in so far as it lays down that reference to Civil Court by a Magistrate without statement of the facts of the case is incompetent. It is not necessary to consider Imrit Rai's case (Supra) because it proceeded upon an assumption that a reference to the Civil Court without drawing up statement of the facts of the case was incompetent, a view, which I do not consider to be correct.

17. It was then contended on behalf of the petitioners that the learned Magistrate while deciding the question of possession could not have looked into materials which had been filed before the learned Munsif on the ground that the affidavits had not been sworn before the learned Magistrate, who decided the case. It was stated that all the affidavits on behalf of the fourth party had been sworn before the Munsif to whom the records had been sent for finding possession. Reliance was placed on the case of (6) Chhotan Prasad Singh v. Hari Dusadh (1977 P.L.J.R 210 - 1977 Supreme Court, 407) which approved the decision of this Court and laid down that affidavits not sworn before Magistrates who were never in seisin of the case could not be looked Into in a proceeding under Section 145 of the Code. In my view, the Supreme Court case does not lend any support to the case of the petitioners. Learned counsel was not right in stating that the affidavits on behalf of the fourth party had been filed before the earned Munsif. I have looked into the affidavits myself and I find that none of them were sworn or filed before the Civil Court. Rather, they were all sworn before Magistrate who were at some or the other in seisin of the case. In fact, the affidavits of Kailash Missir and Oorakh Dubey had been sworn before Shri S.S Sinha, Magistrate himself who decided the proceeding. In that view of the matter, the submission urged on behalf of the petitioners is devoid of any substance and must, therefore, be rejected.

18. Lastly, learned counsel for the petitioners contened that the learned Magistrate had failed to consider the affidavits of Binda Raut, Bhanu Kahar, Jagarnath Hazara and Janak Rai allas Janak Sah on behalf of the first party. The affidavit of Janak Sah could not have been of any avail to the first party for the simple reason that he has no land in village Chailaha where the lands in dispute were situated. He only negatived the contention of the second party, but did not do so in regard to the claim of the fourth party. It is true that the fourth party had been added as party to the proceeding after the affidavit of Janak Sah had been sworn, but that circumstance, however, cannot improve the position of the first party. It was Incumbent upon the first party to file fresh affidavit denying the possession of the fourth party. Bhanu Mahto claimed to be a servant of the family of Nandlal Thakur. In that capacity he testified that the vendors of the first party were Bhaglnas of Nandlal Thakur and that after the latter's death they came in possession of his entire estate. He also deposed that they sold a portion of the heritage to the members of the first party and that the vendors were still in possession of the remaining portion. It will be appreciated that he claimed himself to be a servant of Nandlall Thakur and not of Babunand, Sakal and Baijnath Singh (vendors of the first party), Bhagims of Nandlall Thakur. Specially remarkable is the fact that this witness did not even state that the first party were in possession of the lands in dispute. Like Janak Sah he also did not deny specifically the claim of the fourth party to be in possession of the lands in dispute’. The next witness Jagarnath Hazara also did not state that the first party were in possession of the lands in dispute after their purchase. He also has not stated anything to show his competency to depose about the possession of Bhgtnas of Nandlalf Thakur. In that view of the matter, even if the affidavit its of Janak Sah, Bhanu Kahar and Jagarnath Hazara had been considered, the order of the learned Magistrate could not have been any different. I have failed to find the affidavit of Binda Raut on the record. In that view of the matter, this submission as well on behalf of the first party is without any substance and must be rejected.

19. There is yet another aspect of the matter. The petitioners never objected to the case being heard by the Magistrate and took their chance of success. The case having been decided against them, they cannot now be permitted to turn round and challenge the final order of the learned Magistrates being without jurisdiction A similar view was taken in (7) Shibnarayan Das v. Satyadeo Prasad (A.I.R 1943 Patna, 44) , (8) Ramswaroop Singh v. Biso Singh (1970 P.L.J.R 684 = 1970 B.L.J.R 1207) and (9) Ram Sanehi Singh v. Dharamraj Singh (1974 B.B.C.J 715). In all these cases it has been held successively that the parties having taken the chance of success cannot be allowed to Impeach the final order after the verdict has gone against a party. In this connection, learned counsel for the petitioners submitted that no amount of acquiescence or waiver of the parties can clothe a Court with jurisdiction if it does not possess that jurisdiction. He placed reliance upon the cases of (10) The United Commercial Bank Ltd. v. Workmen (A.I.R 1951 Supreme Court, 230), (11) Kiran Singh v. Chaman Paswan (A.I.R 1954 Supreme Court, 340) and (12) Bengal Coal Company Ltd. v. Chairman Central Government Industrial Tribunal (1962 B.L.J.R 681). In my view, the law laid down by these cases have no application for the simple reason that the order of the learned Magistrate was certainly not without jurisdiction. The order of the learned Munsif referring back the case to the learned Magistrate and the ultimate decision of the learned Magistrate could at the highest be characterised as irregular, but they were certainly not without jurisdiction. In that view of the matter, I am unable to hold that the learned Magistrate had no jurisdiction to pass the final order.

20. For the reasons, stated above, I find no merit in this application which is accordingly dismissed.

21. K.B.N Singh, C.J:— I agree.

22. Shambu Pd. Singh, J.:— I agree and would like to make a few observations of my own. The conflict between the two Bench decisions of this. Court in Shridhar Thakur's case and Hari Mishra's case is on the point that whereas according to the decision in Shridhar Thakur's case, a reference by a Magistrate to Civil Court without making any attempt to consider and discuss evidence and recording any finding that he is unable to decide as to which of the party was in possession is merely Irregular and not incompetent, according to the decision in Hari Mishra's case, the reference is incompetent and on such a reference the Civil Court does not get jurisdiction to decide the question of possession. I am in complete agreement with the views expressed by my learned brother Uday Sinha, J. that such a reference is merely improper or irregular and not incompetent or without jurisdiction and observation to that effect in Hari Mishra's case is not correct. The decision, however, in Hari Mishra's case setting aside and quashing the reference of the Magistrate is not wrong for in exercise of revisional jurisdiction this Court could go even into the question of propriety of any order and regularity of any proceeding of an inferior court. Both these decisions appear to have been considered in (9) Ram Sanehi Singh v. Dharamraj Singh (1974 Bihar Bar Council Journal 715) wherein it has been held that such a reference by a Magistrate to the Civil Court if challenged at the Initial stage may be set aside but if the parties do not take exception and allow the proceeding before the Civil Court to go on unchallenged and they take a chance, they cannot be allowed to challenge the final order According to that decision, such a reference may not be in accordance with law but not without jurisdiction. Ram Sanehi Singh's decision has rightly been relied on by Uday Sinha, J. in holding that the petitioner having allowed the Magistrate to deal with the proceeding and deliver the order in the case after the reference was returned to him now cannot be permitted to challenge that order.

23. In Hari Mishra's case it was also held that it was not open to the Civil Court to return back the reference to the Magistrate concerned even if it was not in accordance with law; the Civil Court could only bring the matter to the notice of the High Court or to the Magistrate without returning the reference. If the reference is incompetent or without jurisdiction as held in that decision, then the Civil Court cannot have jurisdiction to retain it. It will be proper on its part to return the reference and that observation in that decision also, according to me, is not correct on the reasoning's of that case. However, even if the reference is not without jurisdiction as held by us. I do not think it can be held that it will not be open to the Civil Court to return the reference for getting the mistake rectified. In that decision it was also held that if the Civil Court without returning the reference brings to the notice of the Magistrate its opinion about the incompetent nature of such reference, the Magistrate may recall such reference if he accepts the Civil Court's opinion. My learned brother Uday Sinha, J. also appears to be of the opinion that even in cases where the civil court does not send any such information to the Magistrate but delays the disposal of the reference, it will be within the jurisdiction of the Magistrate to recall the reference and decide the controversy for himself as such a point does not arise for decision in the case, I do not consider it necessary to express any opinion on that question.

Applications dismissed.