This is a reference under Section 438 of the Cr.PC made by the learned Sessions Judge, Manlpur, recommending that the order passed by the learned Magistrate under Section 145 Or. P.C. declaring the opposite party (Lei-sangthem Chandra Singh) to be in possession of the disputed land be set aside and the case be re-heard and disposed of according to law.
2. The proceeding that was originally started against both the parties was started under Section 107 of the Cr.PC but after the conclusion of the proceeding and at the time of passing the final order, what the learned Magistrate did was to pass the impugned order under Section 145 Cr.PC giving a declaration in favour of the opposite party. This the Magistrate was not competent to do and his order was clearly ultra vires.
It is open to a. Magistrate to either start a 'J proceeding under Section 107 or Section 145 Cr. JP.C. when there is a dispute over land and if j after having started a proceeding under one of (those sections he considers that action under the i other section ought to have been taken, he may stay the first proceeding and commence action under the other section, but he cannot without having taken the necessary action under the second section pass an order under that section. ' That the legal position is this, was also not disputed before me by the learned Counsel appearing In the reference.
3. The result is that the order passed by the learned Magistrate must be set aside. I accept the reference and set aside the order of the learned Magistrate and remand the ease for disposal according to law. The case shall now go to another Magistrate to be selected by the District Magistrate, Manipur, for the purpose.