1. This Role is directed against an order made by the Sub-Divisional Magistrate of Patuakhali under the provisions of Section 146 of the Code of Criminal Procedure by which he has attached a certain plot of land which is described as a partially excavated tank. The dispute which gave rise to the proceedings under Section 145, Criminal Procedure Code, was one between the owners of a mouzah called Algi towards the west and the owners of the neighbouring mouzah called Chandkati on the east. Between these two mouzahs there runs a khal now in a great measure silted up. In the map prepared in the course of the Record of Rights in connection with these two mouzahs that khal has been marked as plot No. 107. Of the partially excavated tank, part of it appears falls in plot marked No. 68, which it is not disputed is within the boundary of Mouzah Algi, and another large portion is within the khal marked No. 107. Whether the tank does or does not extend also to some small extent on to three plots of Mouzah Chandkati, Nos. 1, 6 and 9, is a matter which has not been definitely determined.
2. We then find that in 1902 between the proprietors of these two mouzahs there was regarding the khal a dispute which was terminated by an order under the provisions of Sections 40 and 41 of the Bengal Survey Act, V of 1875. The order which was made by the Collector was in favour of the owners of Mouzah Algi, and it is not disputed that that order has the force of an order of the Civil Court. In addition to that we have also the entry in the Record of Rights which is in accordance with that order and is also in favour of the owners of Algi.
4. It is then practically conceded that up to the time when the work of excavation of this tank began, the site of the tank was lying fallow at least in so far as that site falls within the khal and the boundaries of Mouzah Algi. That being so, it seems to us clear that when the Magistrate proceeded to determine the question of possession which arose between the parties, he should in the first instance have presumed that the possession of this fallow land was with the owners who had title as determined by the decision under Section 41 of the Survey Act and which title was further to be presumed from the entry in the Record of Rights. It he had started his investigation upon that basis, he would then have next determined or proceeded to determine the exact position of this boundary line; and as a matter of fact in order to determine the boundary line he deputed a survey officer for the purpose. That officer, a kanungo, prepared a map in which he has shown the boundary line as ascertained by him on a comparison of the maps prepared in the course of the Record of Rights, that is to say, the map of Mouzah Algi and the map of Mouzah Chandkati.
5. Instead of proceeding in the way we have indicated, the Deputy Magistrate has first of all discarded in toto the decision arrived at under the provisions of the Survey Act, and for that he gives the following reason:--- He says that it is not clear that the dispute in that decision was between the Mouzah Algi on the one side and Mouzah Chandkati on the other, and suggests that it was between Algi and another mouzah of the name of Jamalkati. This reason or argument he founds on what appears to be an endorsement by a ministerial officer in the Collector's order made in 1902. That endorsement appears to have been made with a view to an entry in some register; and apart from the fact that Jamalkati appears to be a clerical error for Chandkati, for of the existence of any mouzah of the name of Jamalkati there is no trace, the endorsement has no evidentiary value, and is indeed inadmissible in evidence.
6. In the next place, he says, that the sudder kanungo in preparing his map has neglected to relay the revenue survey line, but here again he overlooks that the revenue survey line is of no importance in this case, because long after the revenue survey had taken place, the boundary line between the two inouzahs was definitely decided and determined in the proceeding in 1902. He then discards entirely the results of the investigation made by the sudder kanungo and the map prepared by him, on the ground that the District Settlement Map of Algi and the District Settlement Map of Chandkati do not agree in all particulars. But that sort of discrepancy very frequently occurs in cases of survey of adjoining villages; and he has altogether overlooked the fact that the line ascertained by the kanungo is not one taken from either the map of Algi or the map of Chandkati, but is the result of the kanungo's reconcilement of the two.
7. An order under Section 146 of the Code of Criminal Procedure can be made only when the Magistrate is unable to satisfy himself as to which of the contending parties is in possession. In this case for the reason that we have given above we can only say that the Sub-Divisional Magistrate has not applied his mind to the essential question and has made no effort whatsoever to ascertain possession. He has discarded and rejected on erroneous grounds practically every piece of evidence that might have led him to a correct conclusion. We do not say that in the first instance when he initiated the proceedings under Section 145 there was any lack of jurisdiction. It does not appear that there was any such lack of jurisdiction, inasmuch as it seems that there was a dispute. But having initiated the proceedings under Section 145, he has made his final order either without jurisdiction or after such gross and material irregularities as seriously to prejudice the second party.
8. For these reasons we set aside his order and direct that the proceedings be resumed at the point reached when the two parties closed their evidence, it being now open to them to adduce such further evidence as either of them may be advised.