1. In this case there was a dispute about the possession of certain plots of land which belonged to one Banamali. He was the only on of his mother and died leaving his mother Dhanrnani and his widow Sreemuty. Subsequently they lived together for a time, and thereafter the widow who was young and without issue, seems to have become attached to one Debendra Nath Khan, and left the premises and went to live with him. On 21st December 1931, she leased the land in which she had a life interest to Debendra. The question which the learned Magistrate had to decide was who was in actual physical possession of the land at the time when the proceedings were instituted Under Section 145, Criminal P. C. Evidence was given that in the record of the last settlement proceedings of the District of Khulna, published in November 1925, Sreemuty was recorded as being in possession of all the land in dispute, and a number of witnesses were called on behalf of the petitioner Debendra to show that he was at the time of the proceedings in actual physical possession. On the other hand, Dhanrnani stated that Sreemuty had left the homestead some considerable time before, and had gone to Debendra and that her (Dhanmani's) son-in-law Biswambhar had cultivated the land for her at all material times. This story was supported by eight witnesses including a doctor who was described by the Magistrate as being a rich and respectable man whose evidence be had no reason to-disbelieve. The Magistrate apparently accepted the evidence of the witnesses for the first party and thought moreover that it was extremely improbable, for various reasons stated in his judgment, that Debendra ever had any possession of the land in question, and he found in favour of the first party Dhanrnani and ordered that the second party should pay Rs. 50 as costs to the first party Under Section 148, Criminal P. C. This rule was issued on the ground that the Magistrate's decision was inconsistent with his own findings of fact, because at the end of his judgment he says that his decision
does not mean that Sreemuty has no possession. In fact, the possession of Sreemuty and Dhanrnani is joint as already noted.
2. In those words he was referring to an earlier part of his judgment in which he stated that when the mother-in-law and the young daughter-in law lived together the possession must have been joint. We are of opinion therefore that the Magistrate in that part of his judgment to which exception is taken was not using the word 'possession' very accurately, and meant either that their interest in the land was joint, or else that they had had joint possession at the time when they were living together. Reading the judgment as a whole it is clear that the Magistrate did not intend to say that Sreemuty had any actual physical possession of the land at the time when proceedings were taken. The second ground upon which the rule was issued was that the Magistrate had not referred to a material piece of evidence, namely, the Record-of-Rights and the rent receipts granted to the second party. It is true that the learned Magistrate has not specifically referred to this matter in his judgment, and we think it would have been better if he had. But there is nothing to show-and it has not been argued before us-that the Magistrate failed to take these matters into consideration, and personally I am not surprised that this evidence did not appear to impress him very much. I have had reason on many occasions in this Court to draw attention to the fact that questions of title are of little importance under this section except in so far as they may be available to show who was in actual physical possession of the land at the time when proceedings are taken. The Record-of-Rights was in 1925-seven years before the proceedings Under Section 145 were taken and, in our opinion the weight of that evidence was insufficient to weigh down the scales in favour of the second party, when the learned Magistrate was satisfied with the verbal evidence given by so large a number of witnesses on behalf of the first party.
3. The next question raised is as to costs. This matter went on appeal before the Sessions Judge and he set aside the order for costs. The reasons he gave in his judgment are that in a proceeding under Ch. 12, Criminal P. C, coming Under Sections 145, 146 and 147 the Magistrate is empowered to make an order for costs Under Section 148, but that he must determine this question judicially, both as regards the amount and the items for which the opposite party will be made liable: further, that his order must not be a part of the judgment passed Under Section 145, but must be treated as a separate issue and a separate judgment must be given on a consideration of objections, if any, raised by the party sought to be saddled with costs. His authority for this proposition is the case of Prokash Chunder v. Ram Prosad (1901) 28 Cal 302 and he says it is a ruling which makes it incumbent upon the Magistrate to give notice to the party who is to be made to pay costs, so that he may have an opportunity of contesting his liability. In our opinion, there is no necessity to treat the question of costs as a separate issue upon which a separate judgment must be given. Of course, no order for costs must be made unless this question has been determined judicially and upon proper materials. If the Magistrate, when giving his decision on the merits, there and then makes an order for costs, the party who has been ordered to pay them may, at that time raise arguments in order to induce the Magistrate not to inflict that order upon him, and the matter will then be decided after bearing any such arguments.
4. If however the Magistrate reserves judgment, without mentioning at any time when the parties are before him, that he intends to make an order for costs against any of them, it is his duty to give notice to any party against whom he intends to make such an order in order that they may have an opportunity of placing before him arguments to induce him not to make the order. That is what was decided in the case reported in Prokash Chunder v. Ram Prosad (1901) 28 Cal 302. That decision was clearly correct because the order for costs had been made on a subsequent date by a Magistrate other; than the one who had given the judgment Under Section 145, Criminal P. C, and without giving notice to any of the parties and was obviously improper. On this question it is clear that the Magistrate has exercised a discretion which is given to him Under Section 148, and there is no reason why we should interfere with it. Consequently the rule will be discharged. The connected reference is rejected.