Ganga Nath, J.
1. This is an application in revision by Ahmadullah and Mt. Khanamunnisa against an order passed under Section 145, Criminal P.C. by the Sub-divisional Magistrate of Baramandal, Almora. A litigation was going on for some time between the applicants and the opposite party, Pandit Srinivas Joshi. An application was made by Srinivas Joshi under Section 145, Criminal P.C. against Ahmadullah. A report was called for from the Sub-Inspector, who reported that there was some apprehension of breach of peace if Ahmadullah was not prevented from going on with his construction. A notice was issued to Ahmadullah and in compliance with it he appeared. The parties agreed to refer their dispute to the arbitration of Rai Bahadur Pandit Laxmi Datt Pande. He made an award to the effect:
Now after duly considering the matter and in view of the scale given in the settlement map of Mr. Beckett, I fix the boundary line as being on the eastern side of the line XY on the map, Ex. C (of Civil Suit No. 147 of 1936 of the Additional Court, Baramandal and prepared by P. Mani Ram), dated 13th November 1936-four feet beyond points X and Y. This line of 1 the boundary will go over (the) yellow portion of 12361/4. This is based on the basis that the scale gives 10/16 to 12361 and not 7/16, as supposed by Mr. Hyder.
2. An objection was taken to this award by Ahmadullah, which was disallowed. The learned Magistrate disposed of the case by the following order:
I have heard the parties and seen the award of the arbitrator, which is very fair and equitable. I accept the award, and possession will be made over in accordance with the award filed.
3. The dispute between the parties was as to whether a particular portion of the land belonged to the applicants or the opposite party. Under Section 145, Criminal P.C., the Court has to find which party was at the date of the order passed by it under Clause (1) in possession of the subject of the dispute. The arbitrator did not care to go into and record any finding on this question. It appears from the proceedings recorded by the arbitrator and his award that he entered into and decided the question of title of the parties to the land in dispute and accordingly drew a line of demarcation on the map. He held that 10/16 nalis appertained to the opposite party's plot No. 12361. Though the Court itself could not have decided this question of title under Section 145, Criminal P.C. yet he did so.
4. The question which arises in this case is whether it is open to a Criminal Court to refer the matter in dispute to arbitration under Section 145, Criminal P.C. There is no provision in the Criminal Procedure Code for reference of any matter to arbitration or delegation of its power by a Criminal Court to an arbitrator. It appears from Section 145 that it is for the Court itself to make an enquiry and to find out who is in actual possession. The procedure laid down under Section 145 does not contemplate that the question as to who is in actual possession should be delegated, even by the consent of the parties, to an arbitrator. The section directs the Magistrate himself to receive the evidence adduced by the parties and, on a consideration thereof, to come to a decision. The same view has been taken in Banwari Lal v. Hriday v. Hriday Chakravarti ('05) 32 Cal. 552, jamuna Das v. Hanuman Baksh ('21) 8 A.I.R. 1921 Cal. 627 and Uttam Singh v. Jodhan Rai ('24) 11 A.I.R. 1924 Pat. 589. I therefore find that the order passed by the learned Magistrate on the basis of the award is invalid. It is therefore ordered that the application be allowed, the order of the learned Magistrate be set aside and the case be sent back to him for disposal according to law.