Baharul Islam, J.
1. This is an application under Section 439 of the Code of Criminal Procedure and is directed against the order dated 5-7-69 passed by a first class Magistrate at Tezpur in Misc. Case No. 195/68 under Section 145. Cr. P.C.
2. The case of the first party was that he purchased 11B-4K-13L of land and got possession of the same and he was continuing in possession. As the second party tried to dispossess him. he filed an application for proceedings under Section 145, Cr. P.C. and accordingly the Magistrate drew up proceedings by an order dated 28-3-68. Both the parties in pursuance of that order of the Magistrate, filed their written statements, affidavits and other documents in support of their respective claims. The Magistrate however being unable to decide the question of possession, referred the case to the Civil Court under Section 146 (I) Cr. P.C. to decide the question of possession. The Munsiff after hearing the parties, passed an order on 30-6-69 declaring the second party to be in possession of 2 bighas only of the land. He could not come to any finding in regard to the remaining 9B-4K-13L of land.
The learned Munsiff found as follows:
On perusal of all papers in the records this Court is of the opinion that the second party was in possession of the two bighas (where Ahu Daddy was grown) out of the disputed land at the time of occurrence. For want of proper evidence, it cannot be decided as to which party was in possession of the rest of the disputed land at the time of occurrence.
The learned Magistrate on receipt of the records from the Munsiff. passed the following order on 5-7-69:
Perused the report of the learned Munsiff. It appears that the learned Munsiff has declared possession of the 2nd party in respect of 2 bighas of disputed land only. He has failed to decide the question of possession in respect of other 9B-3K-13L of land. There is no specific boundary of the two bighas of land which has been declared to be in possession of the 2nd party.
In view of the above finding of the Civil Court, no order within the purview of Section 145 (6) can be passed by this Court. Hence the proceeding is staved till the parties establish their claim of possession in a Court of competent jurisdiction.
3. The present petition has been filed by the 1st party against this order. His submission is that the order of the learned Magistrate is not in conformity with Section 146 (1-B) of the Code of Criminal Procedure which, inter alia, provides that:
The Magistrate shall on receipt thereof proceed to dispose of the proceedings under Section 145 in conformity with the decision of the Civil Court.
The petitioner submits that this order is not in conformity with the order of the Munsiff and therefore cannot be sustained. He however realizes the position that even if this order be set aside and the learned Magistrate passes an order in conformity with the order of the Munsiff, then possession has to be declared of the 2nd party in respect of 2 bighas only. He therefore submits that the order of the Munsiff also cannot be sustained.
4. The question then is whether the order of the Munsiff can be set aside under Section 439 of the Code of Criminal Procedure. The matter has been finally settled by a decision of the Special Bench of this Court, reported in AIR 1971 Assam and Naga. 53 in which it has been held:
If the Civil Court commits any breach of fundamental principles of law or such other gross illegalities, it would be open to the aggrieved party to move the High Court by means of an appropriate application under Article 227 of the Constitution and in exercise of the power of superintendence the High Court may look into the matter and pass such orders as may be necessary. It will not be open however, to challenge the finding of the Civil Court before the High Court in Criminal Revision. We are. therefore , of opinion that a revision application is not competent under Sections 435 and 439. Cr. P.C....
5. This is no doubt that the order of the learned Munsiff is not in conformity with Section 146 of the Cr. P.C. Section 146 o the Cr. P. C provides that.
If the Magistrate is unable to decide as to which of the parties was in possession of the 'subject of dispute' he may attach the property and draw up a statement of are and forward the record of the proceeding to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the 'subject of dispute' at the date of the order as mentioned in Section 145 (i) of the Cr. P.C.
Sub-section (I-A) of the said section provides that the Civil Court shall peruse the records and take such further evidence as may be produced by the parties, respectively consider the effect of all such evidence, and after hearing the parties decide the question of possession so referred to it, The Civil Court is to decide the question of possession of the 'subject of dispute' and it does not empower it to decide the question of possession in respect of a part of it. The Munsiff has not found as to who is in possession of the remaining land. Secondly no possession can be declared or given in respect of an unspecified two bighas out of the total eleven bighas and odd of the land of the proceedings. Undoubtedly, his finding is not in accordance with law as he has failed to give a finding as to possession of the subject of dispute in accordance with law and his finding as such has been vitiated by gross illegalities.
6. Both the parties before me concede that the impugned order of the learned Magistrate is not in conformity with the finding of the Munsiff and therefore ought to be quashed. The second party submits that the order of the Magistrate must declare the possession of the 2nd party in respect of 2 bighas to be in conformity with the Musiff's finding. Second party cannot be declared to be in possession of the two bighas as it is an unspecified area of the total 11 bighas and odd of the proceedings, as I have stated earlier.
7. The petitioner submits that as the Munsiff failed to give a finding in accordance with law his order also should go and the High Court has power under Article 227 of the Constitution of India to remove the illegalities committed by the Munsiff. The 2nd party however objects to the exercise of the powers under Article 227 on the ground that the Munsiff and the Magistrate are necessary parties to an application under Article 227 of the Constitution and in their absence no order can be passed. I do not find any substance in this objection. They may be proper parties; but they do not appear to be necessary parties in the absence of whom no effective order can be passed.
8. As this matter arises out of a proceeding under Section 145 Cr. P.C. which needs expeditious disposal. I do not feel inclined to ask the aggrieved party to file a separate petition under Article 227 of the Constitution. The order dated 5-7-1969 passed by the Magistrate and also the order of the Munsiff dated 30-6-1969 are quashed under Article 227 of the Constitution. The Munsiff is directed to give his finding as to the possession of the 'Subject of dispute' in accordance with law. After receipt of the finding of the Munsiff the Magistrate will dispose of the matter in accordance with law.
9. The parties will be at liberty to adduce further evidence before the Munsiff.
In the result, the orders of the Munsiff as well as of the Magistrate are set aside and the Rule is made absolute.