T.N.R. Tirumalpad, J.C.
1. 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 pair of land in patter 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 patter No. 54/226 while the second party was claiming it as part of patter No. 54/471. The learned Magistrate issued a preliminary order on 22-8-1962 stating that there is dispute regarding one pair of land under patter 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 pair of land in patter No. 547471, 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 patter number in the order of attachment was wrong and that it should be described as patter No. 54/226 and not as patter 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 patter 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 patter No. 54/226, that the duty of the Magistrate was to have issued a commission to decide whether the disputed land was in patter No. 54/226 or in patter 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 serried 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 ease. 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 pair 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 was in patta. No. 54/226, while the claim of the second party was that it was in patter 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 preliminary order was issued and not the right to possession. The latter question will have to be decided in a Civil Court. Thus, when there is no dispute about the identity of the property, the Magistrate can proceed to decide the factor of possession. No doubt, he wrongly treated the land in dispute at the time of the attachment and at the time of the preliminary order as part of patter No. 54/471. This would have been a serious error if the land was described only by patter. number. But here the land is described by boundaries as well and the boundaries are accepted by both the parties to be correct. Thus, both parties knew in respect of which land, the Magistrate has issued the preliminary and final orders as also the attachment warrant. The Magistrate appears to have accepted the affidavits filed by the first party, bee use many of them were persons who owned and occupied, the adjacent lands.
It' is not for this Court to go into the actual facture of possession in revision, which the Magistrate has decided.. Thus, I see no reason to set aside the order of the Magistrate on that ground or to remand it further to the lower Court for issuing a commission. After all the issue of a commission is to see Whether the land is in patta. No. 54/226 or in patta, No. 54/471. As I have already said, that is a matter for the Civil Court to decide. After all, the finding Of the Criminal Court is in a summary proceeding and it is subject to the decision o a Civil 'Court where the right to possession will have to be decided. It is therefore for the second party to have the matter now decided by a Civil Court as to whether the land belongs to the second party or not.
5. Regarding the second point, we have to Tem earner that the petitioners 2 and 3 are the sons of the first, petitioner. They were imp leaded at the instance of the first petitioner and they came to Court on their being imp leaded without any notice even being issued to them and filed their written statement and affidavits. They did not raise any plea before the Magistrate that the proceedings should not be continued against them. It is clear that they were quite aware of the -dispute regarding the land and they were aware of the service of the preliminary order on their father, namely, the first petitioner and they, came to Court at the instance of their father. Under such circumstances the failure to serve a copy of the preliminary order on them does not appear to me to. be very material as in any case a copy of the order was published by being affixed to some conspicuous place near the land in dispute.
6. I do not see therefore any reason to interfere with the order of the Magistrate. The reference is therefore rejected.