K.B. Srivastava, J.
1. This revision arises out of proceedings under Section 145, Code of Criminal Procedure.
2. After the rival parties had put in their written statements of their respective claims as respects the facts of actual possession of the subject of dispute and after they had also put in documents and affidavits in support of their respective claims, the learned Sub-Divisional Magistrate drew up a statement of the facts of the case and ordered the record of the proceedings to be forwarded to the Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute on the date the preliminary order or within two months next before the date of that order. The grounds on which he passed this order, to put them in his own words, are as follows:
The written statements and affidavits along with documentary records filed by the parties fail to convince me as to which party was in possession over the plots in dispute. I perused the records but could not come to a definite conclusion as to which party was in possession over the disputed plots on the date of preliminary order or two months before it. As such I refer the case to Civil Court for finding on the point as to which party was in possession on the date of preliminary order or two months before this date.
Ex facie, this order appears to be innocuous but if we probe into the matter, it would atonce become apparent that it was passed in clear disregard of the provisions contained in Sub-Section (1) of Section 146, of the Code. It should be clear to every Magistrate that when there is a dispute regarding immovable property and that dispute is of such a magnitude that it disturbs or is likely to disturb peace or tranquillity, it is the primary duty of a Criminal Court, and not for a Civil Court, to decide the matter under Section 145 of the Code. A Magistrate can, however resort to the provision contained in Sub-Section (1) of Section 146, in certain given circumstances and not beyond those. Sub-Section (1) of Section 146 says that:
If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was in such possession of the subject of dispute, he may attach it, and draw up a statement of the facts of the case and forward the record of proceedings 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 orders as explained in Sub-Section (4) of Section 145 and he shall direct the parties to appear before the Civil Court on a date to be fixed by him.' It is thus only in two circumstances that a Magistrate can exercise his discretion under Sub-Section (1) of Section 146 and these two circumstances are (i) when he is of opinion that none of the parties was then in such possession, and (ii) when he is unable to decide as to which of them was then in such possession. Admittedly, the first condition is not applicable to the instant case. He purported to exercise his power on the opinion that he was unable to decide as to which of them was then in such possession. The words which are of importance are 'unable to decide'. The question is as to what is the true import and significance of these words. The words may mean the mere opinion without any foundation and based merely on caprice or whim that the Magistrate is unable to decide the question of possession. This is what appears to have taken place in the instant case. The intention of the law is not that a Magistrate should shift his duty upon another court merely because he does not intend to decide the question even though it is possible for him on the basis of the record to come to a rational conclusion as to which party was in possession. This intention could not have been in the contemplation of the legislature. The legislature imputes commonsense and ability to decide on all courts, whether it be criminal or civil, and if a Magistrate wishes to depart from the normal procedure laid down in Section 145 and to take recourse to the extraordinary procedure mentioned in Section 146, the words 'Unable to decide' will assume the correct significance and the correct perspective in which these are used in the section. Inability to decide means some real hurdle, some genuine obstacle, some difficulty which the Magistrate considers to be unsurmountable that is to say, even though an honest attempt is made to arrive at a correct conclusion by disentangling the complex question of fact from the mass of evidence placed before him he is still unable to make up his mind as to which party was in possession. In expressing the view that he is unable to decide, it is the duty of a Magistrate to explain his difficulty by an honest attempt to appreciate the evidence and give the reasons why in the face of the rival documents and the conflicting evidence, he is unable to make up his mind. Mere repeating parrot like the phraseology used in the section is not sufficient and can never be sufficient. There is no escape from the conclusion, therefore, that the Magistrate avoided to perform his duty, which the law enjoins him to perform. The order passed by the Magistrate is therefore, quashed. The case shall now go back to him with the direction that he shall either dispose of the matter finally under Section 145 of the Code, or give valid reasons by discussing the evidence as to what is the difficulty which prevents him from coming to the correct conclusion as to the claim of possession made by the respective parties. It is then alone that he can make a reference under Section 146 to the Civil Court of Competent Jurisdiction.