1. In this case a Magistrate has made an order under Section 145, Criminal Procedure Code, whereby he has found the first party in proceedings under that section to be in possession of the disputed land at the date of the proceedings. We have granted a Rule on him to show cause why the order should not be set aside on the ground that it is inconsistent with the decree of a Civil Court.
2. Both parties to the present dispute claim possession of the land in question through their tenants, and the present dispute seems to have been more or less in existence for a long time since it is said that there was litigation in connection with it as long ago as 1846, and again 1882. The Civil case, however, to which the Rule refers is a suit for possession brought by the 1st party against the second in 1905, and decided in favour of the second on the 20th April 1907. Against this decree the first party has appealed to this Court and the appeal is now pending. The proceedings in the present case were instituted on the 8th September 1909 on a police report dated the 3rd June in the same year. The case made for the second party, therefore, is that the first party-made a case in 1905 that he Was not in possession, that it was decided in April 1907, that he was not in possession at that time, and that he had no right to be, and that by lodging an appeal he must be taken to have repeated his former case and still to be maintaining it.
3. The Magistrate has rightly held that he is not concerned with the main question in issue between the parties; namely, whether the land lies within the thak of the one or the other. But he has failed to notice the question of the effect of the decree in question, and to decide whether the land in dispute is covered by the decree or how far it is so covered. In neglecting to decide what effect the decree may have had he has in fact omitted to deal with a material part of the case made before him, and has so far declined to exercise jurisdiction. This might be amended by our decision in the matter if the question were a pure question of law: but the question of the effect of the decree cannot be decided apart from the question of whether and how far it affects the land in question. We have been invited to decide this for ourselves on the pleadings in the suit and the map that has been used for making the present order. On the materials before us, however, we cannot attempt to come to such a decision. We might refer the matter back to the Magistrate to come to a finding on this point. Considering all the circumstances of this case, however, we do not think it necessary to do this. It is enough to say that the Magistrate has refused jurisdiction by failing to decide a very important issue raised by the second party, namely, what was the effect of the Civil Court decree with which the first party's appeal may fairly be considered. In the absence of a decision on the question of the identity of the land in dispute, we cannot decide this question for ourselves, and we do not consider any farther enquiry into the matter desirable at present. The Rule is made absolute and the order is set aside.