1. We have considered this case at great length, and, departing from the ordinary rule which the Court prescribes to itself in cases of revision, we have thought it desirable to go into the whole of the evidence in the case with the view of putting ourselves in full possession of all the facts appearing upon it, and we have also kept in mind the circumstance, which is constantly brought before us in these cases, that, as between the two parties to the present dispute, Section 145 of the Code of Criminal Procedure is being used for a purpose wholly alien to that for which it was originally intended, and one calculated to produce, in whosesoever favour it is made, very unexpected and unfair results--in fact, that a squabble about some grass is to be turned into an important judicial decision as to the boundary of two large estates. That is a state of things which we regard with great disapproval and which it is the object of this Court to discourage as far, as possible, and as we see in this case that the decision, whichever way it went, is calculated to have this effect in a very high degree, we have felt it necessary to scrutinize, with great minuteness, the legal grounds upon which the decision rests and the adequacy of the evidence which supports the decision at which the Magistrate has arrived.
2. Referring to a recent case, Raja Babu v. Muddun Mohun Lall 14 C. 169, and to an observation made by the Chief Justice on that occasion, Mr. Bonnerjee has urged before us that we are not at liberty to decide anything except whether there was, or was not, any evidence to justify the finding of the Court below. We think it therefore desirable, before dealing with the present case, to point out the true meaning of that observation. The question before the Court then was, not such a question as we have before us now, but whether the fact of a large amount of attention having been directed by the Court below on the question of title ought to invalidate its decision. The observation made in that ruling with reference to what is the ordinary procedure of this Court in revision cases, as to findings of fact, does not, we consider, militate against the view that we have power in revision, if we think right, to consider the whole evidence.
3. We do not propose at present to consider in detail the whole of the evidence on which the conclusion of the Magistrate was based. With regard to the question of jurisdiction, we had, for a considerable time, some hesitation as to whether there were any grounds which would give the Magistrate jurisdiction to hold the enquiry. There was certainly in the first instance, a complaint showing a likelihood of a dispute ; upon that there was an order to the Police to hold an enquiry, and the report made to the Magistrate, in compliance with that order, though it did not certainly state very categorically the grounds which would show a likelihood of such a dispute as was necessary to give the Magistrate jurisdiction under Section 145, may, we think, on the whole, be taken as sufficient to confer jurisdiction on the Magistrate under that section.
4. We next come to consider the evidence as to possession. Now this evidence, though voluminous, is yet, to our minds, extremely unsatisfactory. Having given it the best consideration that we can, we cannot get over various circumstances which appeared in the course of the enquiry which make us feel extremely doubtful as to the justice of the conclusion at which the Magistrate has arrived, and especially with regard to the omission to examine a most material witness. We cannot, on the proceedings, as they now stand, consider that it is in any degree satisfactory or that there has been, in any way, what we can consider a proper trial of what we think was an important issue when we have the fact before us that the witness, whose evidence we think was likely to be of a very material character, was never brought before the Court, although the first party asked to have him brought.
5. In these cases the tribunal trying the case is not under the necessity which a Court trying a civil case, or ordinary criminal cases, is under of coming to a conclusion at all. The Legislature contemplates circumstances in which it may be desirable for such a tribunal as that of a Deputy Magistrate, presumably unacquainted with the conduct of civil proceedings and strictly a criminal tribunal, to say that the facts of the case do not enable him to come to a conclusion, and looking at the circumstances of this case and the conflicting nature of the evidence, and the various other circumstances which were before the Magistrate, we think that the wise and proper course for him to have adopted would have been to have accepted the liberty which the Code gave him of not coming to a conclusion as to the fact of possession, and to have passed an order under Section 146, and as we have the power, in revision, to make the order which the lower Court ought to have made, we alter the order of the Magistrate from an order under Section 145 to one under Section 146 of the Code of Criminal Procedure, and direct that the property, the subject of dispute, be kept under attachment by the Magistrate until a competent Civil Court shall have determined the rights of the parties thereto or the person entitled to the possession thereof.