R. Chandra, J.
1. This is a reference by tie Additional Sessions Judge, Bahraich, recommending that the following order passed by the S.D.M., Kaiserganj, in the proceedings under Section 145, Criminal P.C., may be set aside, as it was against law:
In this manner Ram Bharosey and Ali Jan both are liable to give accounts of 242 maunds and 20 seers (local) of late paddy each. In the local area in which the disputed lard is situate 2 local maunds constitute one standard maund. In this manner the two Supurdars are liable to give account of 121 maunds and 10 seers (standard) of late paddy each to the applicants. They may give this late paddy or the value calculated at 6 as per seer of late paddy. The total amount payable by them each will be Rs. 1818.75 nP.
2. At the instance of Indra Vir Singh and Chandra Vir Singh proceedings under Section 145, Criminal P.C., were started in respect of plot No. 870/2 (measuring 5.88 acres), of village Bulha, pergana Hasampur, district Bahraich. This land was attached under Section 146, Criminal P.C. The question of possession, over that land, was referred to the Munsif Bahraich. The Munsif recorded the following finding:
It is not at all established as to on which particular land the first party was in possession. In the absence of the discharge of such burden the first party is not entitled to get established from this Court that they are really in possession.
On the basis of that finding the Magistrate decided the case in favour of the second party, and ordered for the release of the disputed land in his favour. Being aggrieved with that order, the first party, namely Indra Vir Singh and Chandra Vir Singh filed a revision which was allowed by the High Court, and the case was remanded for retrial.
3. On remand, when the question of possession was referred to the Munsif, he clearly found that it was the first party, namely, Indra Vir Singh and Chandra Vir Singh, who were in possession of the disputed property, on the relevant date. Acting on that finding, the Magistrate decided the case in favour of Indra Vir Singh and Chandra Vir Singh. The property was ordered to be released in their favour. The second party was prohibited from causing any interference in their possession.
4. Indra Vir Singh and Chandra Vir Singh made an application to the Magistrate praying that the supurdars, namely Ali Jan and Bharosey be directed to render accounts about the income from the disputed land, during the period it remained under attachment and in their custody. Notices were issued to the supurdars and they filed their objections. Parties were allowed to produce their evidence. On the basis of that evidence, the Magistrate passed the impugned order.
5. Ali Jan Supurdar went up in revision against the order of the Magistrate. In that revision, the Sessions Judge has made the recommendation for quashing that order. Except the counsel for respondents Indra Vir Singh and Chandra Vir Singh, none of the other parties has put in an appearance, in spite of sufficient service. The Judge in support of his recommendation, has relied on the case of this Court, reported in Bhagwan Singh v. Ganga Singh 1963 All W R (HC) 707. In this case, it was held:
There is no provision in the Code of Criminal Procedure under which the Magistrate can take steps for the recovery of any amount from the Supurdar. The recovery could be made through the civil Court and the civil Court would not pass any decree till the accounting is done i.e., the amount due from the Supurdar is determined. The Magistrate's order directing the Supurdar to deposit a certain amount towards the profits utilised by him from the attached plots of which he was appointed Supurdar by the Magistrate is without jurisdiction.
This decision is fully applicable to the facts of the present case. In summary proceedings, it could not be possible for the Magistrate to deter, mine what amount was actually recoverable from the supurdar. So, the proper forum for claiming the amount by accounting was the civil Court.
6. In this view, the reference is accepted, and the order of the Magistrate dated 7.10.63 is set aside.