Lancelot Sanderson, C.J.
1. This is a Rule calling upon the District Magistrate and the opposite party to show cause why the order complained of should not be set aside on the second and fifth grounds mentioned in the petition.
2. The second ground is, 'for that with regard to the portion lying to the east of Thia-Khal the Magistrate's finding being that there was no satisfactory evidence of possession on either side, the order in respect of the said portion is without jurisdiction.'
3. The fifth ground is 'for that the order is without jurisdiction as relating to 112 bighas of land when the, entire area, according to the learned Magistrate himself, is not less than 250 bighas and no attempt, has been made to define the smaller area,'
4. The proceedings were, under Section 145, of the Criminal Procedure Code and the learned Magistrate declared that the second party was in possession of the disputed land and that the disputed land was bounded on the north by Kangal Mandal's Bheri, on the east by Guatalor Khal or Guatala Kata Khal, on the south by Simanar Kata, Khan and on the west by Thia Khalir Kata Khal.
5. The disputed land has been described in the judgment as being divided into two parts, one being called the western portion, which lies between the Thia Khalir Kata Khal on the west and Thia Khal original on the east; the north and south boundaries are those which I have already mentioned. The other was called the eastern portion; lying between Thia Khal original on the west and the Guatalor Khal on the east, the northern and southern boundaries being those which I have already mentioned.
6. The learned Magistrate came to the conclusion on the evidence that the second party was undoubtedly in possession of the, western portion; and, in my judgment, there, is no reason for interfering with the learned Magistrate's order as regards that portion, which I have described and which is called the western portion.
7. As regards the eastern portion the Magistrate in his judgment said this:
Though neither Sava Ram nor the first party could adduce satisfactory evidence of possession in respect of the eastern area, I should also find possession of it with Sava Ram and his co-sharers with whom I have found the title to this land to lie by relying on the recognised principle enunciated in various rulings of the Calcutta High Court which is very much applicable to a case, like the present one and, accordingly, as I have already stated, the Magistrate declared the second party to be in possession not only of the western portion but also of the eastern portion of the disputed land.
8. It has been argued that, having regard to the finding of the learned Magistrate that neither party had adduced satisfactory evidence of possession in respect of the eastern, portion, the Magistrate was not entitled to take into consideration the presumption as to possession which might arise from the title which he found to be in the second party. The principle which may be applied to this case is that where a Magistrate finds on each side evidence, which in itself is reliable and he finds that the evidence on the one side and the evidence on the other side is equally balanced and he is unable to conclude from such evidence which party is in possession, then he is entitled to corroborate the evidence of possession given by one side by the presumption as to possession arising from the title which he has found to be in that side. In my judgment, however, the principle does not apply to a case where the Magistrate has come to the conclusion that the evidence as regards possession is equally unreliable on both sides. The question is, in which category does this case lie; I have been placed in somewhat of a difficulty by the fact that the explanation of the Magistrate, which he has forwarded to this Court, does not seem to me to be consistent with the judgment which he had given. I have already read what the Magistrate said in his judgment, and, but for his explanation, I should have come to the conclusion that he meant to find that there was no satisfactory evidence on either side with regard to the question of possession, and if that be the proper construction to put upon his judgment, then, in my judgment, he was not entitled to rely upon any presumption as to possession from the title which he had found in the second party.
9. In his explanation, however, the Magistrate has said: 'Both parties adduced evidence of their respective possession over the portion lying to the east of the Thia Khal, but I found it evenly balanced on both sides, so I referred incidentally to the question of title and found possession with the party with whom I found the title to this land, in addition to the evidence of possession adduced by them.'
10. In my opinion, if his explanation had been embodied in his judgment then this Court should not have interfered with the order which the Magistrate made. But, in my opinion, that explanation is not consistent with the Magistrate's judgment. I have carefully considered the judgment of the learned Magistrate, and I am bound to put the natural meaning upon the words used by the learned Magistrate in his judgment and I have come to the conclusion that, at the time when he delivered his judgment, he meant to find that there was no satisfactory evidence on either side with regard to the question of possession; consequently, in my judgment, he was not entitled to declare that the second party was in possession of the eastern portion. In my judgment, with regard to the eastern portion the proper course for the Magistrate to adopt would have been to apply the provisions of Section 146 of the Criminal Procedure Code.
11. The result is, in my judgment, that this Rule should be made absolute only so far as the eastern portion is concerned. We do not intend to interfere with the Magistrate's order as regards the western portion. As regards the eastern portion we remit this matter to the Magistrate and direct that the Magistrate do put in force the provisions of Section 146 of the Criminal Procedure Code.
12. I agree.