G.K. Misra, J.
1. One Narasingha Pasayat had five sons -- Khedu, Dhananjoy, Sridhar, Balka and Pandaki. Khema is the son of Khedu. Hema and Ketaki are the daughters of Khedu. Sridhar's widow is Nurabati and son Mahendra. The case of the first party is that the disputed lands which constitute a part of holding No. 13 in village Haladi-pali belong to Narsingh. Dhananjoy, Balka and Pandaki died in a joint family without leaving any issue. Khedu and Khema died leaving Mahendra as the sole surviving coparcener. Mahendra sold away some portions of holding No. 13 for a consideration of Rs. 7000 and executed a registered sale deed on 27-1-1965 in favour of Ramkumar Agarwalla, member, first party, who was in possession till the date of the preliminary order.
2. The case of the second party members is that Khedu and his brothers were all divided and were in separate cultivating possession of their respective shares. By a registered deed of gift dated 22-5-1947, Khema and Dhananjoy transferred 24.31 acres of land from holding No. 13 in favour of Hema and Ketaki. Mahendra and Nurabati filed a tenancy case against Hema and Ketaki. Hema and Ketaki were declared to be in possession of 1/3rd of property belonging to Khema. After their success, they gave the disputed lands to Brahma Naik (2nd party No. 1) for cultivation on Kar basis. On 13-4-1955, they executed a usufructuary mortgage deed in respect of 2.24 acres in favour of Brahma Naik for a loan of Rs. 500. On 3-3-1956, the residual disputed lands were similarly mortgaged for a loan of Rs. 1000. On 9-2-1965. Hema and Ketaki executed a registered deed of sale in favour of Brahma Naik. The second party members claim possession initially as tenants on Kar basis after 1947 and after 1955 as usufructuary mortgagees.
3. Both parties filed a number of documents and affidavits in support of their cases. On 29th of June, 1966, the learned Magistrate referred the case to the Munsif, Bargarh under Section 146 (1) Cr.P.C. A brief statement of facts of the case was drawn up giving the cases of the respective parties referring to the various documents and affidavits. The substantive part of the discussion on the basis of which the reference was made may be extracted.
'It appears that the I party Ram Kumar Agarwalla claims the disputed lands on the strength of sale deed dated 22-1-1965 (27-1-1965?) executed by one Mahendra Pasayat, s/o Sridhar Pasayat of village Haldipali P.S. Sohella. So also the II party Bramha Naik claims the disputed lands on the strength of sale deed dated 9-2-65 executed by Ketaki and Hema Pasayatuni. Thus both the parties claim on the strength of sale deeds, the very execution of which is indicative of the fact that the possession of whomsoever it may be, had extinguished. It is only thereafter the question of possession came in during sowing season, i.e. in June July during which the proceedings are initiated. It is the competency of the seller which is the vital issue on the matter. As both the parties claim on the strength of purchase and as there are affidavits from both the sides, it is difficult to come to a correct finding as to who is the right person to effect transfer of the lands and as to which of the parties was in possession at the time of the preliminary order.
The case is therefore referred to the Munsif with the above statement of facts Under Section 146 (1) Cr. P. C.'
4. The case was put up before the learned Munsif for the first time on 16-7-1966. On the very day he returned back the record to the Magistrate for disposal according to law with the following observations.
'As it appears from his order, the learned Magistrate tried to go into the question of title which is beyond his jurisdiction. Under Section 145 (4) Cr. P. C. he is to find out the person in possession within a period of two months from the date of appearance of the party before him without any reference to the merits or claim of the parties. What I feel the case has not been approached at all from this angle of vision.'
5. The order of the learned Munsif shows that he was throughly confused. His order is contrary, to Section 145 (4) Cr. P. C. The Magistrate is to decide the question under that sub-section as to which party was in possession of the disputed lands on the date of the preliminary order and not to find out the possession within a period of two months from the date of appearance of the party as stated by the learned Munsif.
6. After the case came back, the learned Magistrate went through the materials on record, passed a reasoned order and came tothe conclusion that the first party was in possession on the date of the preliminary order. The second party members have come in revision against this order.
7. Mr. Mohanty for the petitioner raised two contentions:
(i) 'The learned Munsif had no jurisdiction to return back the record referred to him under Section 146 (1) and the subsequent order of the Magistrate declaring possession in favour of the first party on the basis of examination of materials on record is without jurisdiction; and
(ii) The learned Trial Magistrate has not discussed the various affidavits and documents filed by the parties, but has disposed of the matter merely with reference to the sale deeds of 1965 and has thus exercised jurisdiction with material irregularity.
8. The first contention is based on Section 146 (1) Cr. P. C. which runs thus:
'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 then 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 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 explained in Sub-section (4) of the section 145; and he shall direct the parties to appear before the Civil Court on a date to be fixed by him'.
9. Under Section 145 (1) Cr. P. C. if the Magistrate is satisfied that a dispute likely to cause a breach of the peace exists concerning any land, he is to follow the procedure prescribed under various sub-sections under the section. Under Sub-section (4), he is to make an enquiry into the question of possession on the date of the preliminary order.
After examining the affidavits and documents and oral evidence, if any, if a Magistrate comes to the conclusion that none of the parties was in possession of the disputed land or is unable to decide which of the parties is in possession, then he can make a reference to a competent civil court for determination of the question as to which party was in possession on the date of the preliminary order. Thus a Magistrate gets jurisdiction to make a reference only if either of the aforesaid two conditions are fulfilled. He cannot make a reference where he is of opinion that one of the parties was in possession on the date of the preliminary order. Before making a reference it is incumbent upon him to carefully scrutinise the materials and record a finding that none of the parties was in such possession or that it is not possible for him to decide which of the parties was in possession. If the Magistrate does not at all call for written statement or affidavits or after calling for them does not examine the materials and yet make a reference, he would be shirking his duty and responsibility statutorily laid upon him. In such a case, a reference to a competent civil court under Section 146 (1) Or. P. C. would be without jurisdiction. If on the other hand, the Magistrate follows the procedure prescribed under Section 145 Cr. P. C., applies his judicial mind to the materials on record, but arrives at the conclusion in an unsatisfactory manner that none of the parties was in possession or he was unable to decide as to which party was in possession his decision cannot be said to be without jurisdiction. In the latter case, he exercises his jurisdiction, but in the exercise thereof, may commit either an error of fact or law and cannot be said to have refused to exercise a jurisdiction vested in him. There is a clear distinction between a case of non-application of the judicial mind to the materials on record and the application thereof in an unsatisfactory manner either due to improper appreciation of the law or facts of case. The order of the learned Magistrate passed on 23-6-1966 making a reference to the learned Munsif conies within the latter category. He drew up a statement of the case, referred to the documents and the affidavits filed by the parties, but in the discussion thereof, his judgment was not satisfactory as it should have been. He did not clearly analyse the evidence, but from the manner in which it was worded it cannot be said that he shirked his responsibility to exercise his jurisdiction under Section 146 (1) Cr. P. C. and that the reference was without jurisdiction. The reference made by the Magistrate on 29-6-1966 was valid and the learned Munsif exercised his jurisdiction illegally in returning the records back.
10. Even assuming that the order dated 29-10-1966 was not in accordance with law the Munsif had no jurisdiction to return back the record direct to the Magistrate. The Munsif is not a court of appeal or revision over a Magistrate and cannot return back the record saying that the Magistrate's order was contrary to law and unsatisfactory. The only course open to the Munsif was to bring it to the notice of the High Court by way of a reference. The High Court in exercise of its revisional power could have quashed such an order, if it was of opinion that the reference was bad. (See AIR 1965 Patna 411), State of Bihar v. Hari Misra, and AIR 1962 Pat 468, Shreedhar v. Kesho Sao).
11. The position which emerges is that the reference made by the Magistrate on 29-6-66 under Section 146 (1) was competent and within jurisdiction and that the Magistrate had no further jurisdiction to go into the materials and pass a judgment as he did on 11-10-1966. The order of the learned Magistrate dated 11-10-1966 is set aside and the case would go back to the Munsif, Bargarh, who would deal with the case in accordance with the procedure laid down in Section 146 Cr. P. C.
It is, therefore, not necessary to examine the second contention of Mr. Mohanty.
12. In the result, the criminal revisionis allowed and the case would go back tothe Munsif, Bargarh to be disposed of byhim in accordance with law and observations as made above.