R. Bhattacharya, J.
1. This re-visional application has been directed against the order of the Sub-divisional Magistrate (Executive) of Rampurhat, passed in a proceeding under S, 145 of the Cr.P.C. 1973. As the learned Magistrate was not able to ascertain which of the parties in the proceedings were in actual possession, he directed that the question as to whether the allegation of the first party-petitioners in the proceedings as to whether they are bargadars or not in the disputed land, be decided by a competent officer under Section 21(3) of the West Bengal Land Reforms Act. The petitioners before us are two - (1) Kulfatum Bibi, opposite party No. 2 in the proceedings before the learned Magistrate and (2) Mechher Sk., Petitioner No. 5 before the learned Magistrate.
2. It appears that originally an application under Section 144 of the Cr.P.C. was filed by the opposite parties Nos. 1 to 4 and petitioner No. 5 before us. Ultimately that proceedings was converted to one under Section 145 of the Code by the learned Magistrate. At the time of hearing, several witnesses were examined on the side of the petitioner-first party and some on behalf of the contesting second party, namely, opposite party No. 2 before the learned Magistrate. On consideration of the evidence the learned Magistrate could not ascertain as to which of the parties was in possession of the disputed land, although the first party, namely, the petitioners before him alleged that they were bargadars. In this connexion it may be noted that out of the 5 petitioners, one, namely, the petitioner No. 2 before us, in the written objection stated before the learned Magistrate that he was not a party to the proceedings and that he has been made one of the petitioners before him by the petitioner No. 1 by forging his thumb impression. However, in this application we are not concerned with that allegation. The grievance of the petitioners before us is that the learned Magistrate has no jurisdiction to refer the dispute raised by some of the first parties, namely, whether they are bargadars or not, to the competent officer under Section 21(3) of the West Bengal Land Reforms Act.
3. We have heard Mr. Das Gupta for the petitioners and Mr. Banerjee for the opposite parties.
4. In this case on perusal of the order complained against, we are of the view that the learned Magistrate misread the relevant provision of law and acted beyond jurisdiction to refer the question as to whether the first parties were bargadars or not, under Section 21(3) of the West Bengal Land Reforms Act.
5. Under Section 145 of the Cr. P.C. the learned Magistrate is to see which of the parties in dispute is in possession of the disputed property. He is not concerned to see whether any of the parties has right or title to the property to possess. It has been clearly indicated in Sub-section (4) of Section 145 of the Cr. PC. that the Magistrate will apply his mind to the statements put in by the parties without any reference to the merits of the claims of the parties to a right to possess the subject of dispute. Sub-section (3) of Section 21 of the West Bengal Land Reforms Act runs as follows:-
If any dispute as to whether a person is or is not a bargadar arises in course of any proceeding before any civil or criminal court it shall refer it to the officer or authority mentioned in Sub-section (1) of Section 18 for decision.' The relevant point in this sub-section is that if the question as to whether a person is or is not a bargadar arises for decision in any proceeding either in the criminal court or the civil court, then the mandate according to this sub-section is that the Court without deciding that question should refer the matter for decision to the officer or the authority mentioned in Sub-section (1) of Section 18. Section 18 refers to the jurisdiction of an officer or authority as the State Government may appoint to decide certain disputes mentioned therein. Now in the present case, although the first party raised a question claiming that they are bargadars in respect of the disputed land, in view of the provisions of law in Section 145 of the Cr.P.C. the right of the first party as bargadars will not be relevant and the learned Magistrate has not to determine that question. The dispute or the question mentioned in Sub-section (3) of Sec-S. 21 of the West Bengal Land Reforms Act is a dispute, a relevant dispute if it arises for decision in a proceeding and if the dispute is not required to be decided or adjudicated upon, it cannot be a dispute referred to in Section 21(3) of the West Bengal Land Reforms Act. In this view of the matter the learned Magistrate in the present proceedings acted illegally by sending the dispute raised by the first party to the officer or the authority as indicated in Sub-section (3) of Section 21 of the West Bengal Land Reforms Act, as it is not a relevant issue for decision.
6. From the order of the learned Magistrate it appears that he wanted to know the right of the first party. Clearly that was not a matter for his decision. He was of the view that as he was not able to find possession with any of the parties, it was useless for him to try to come to a decision as to possession of the disputed land. Sub-section (1) of Section 146 of the Cr.P.C. says that if the Magistrate at any time after making the order under Sub-section (1) of Section 145 considers the case to be one of emergency or if he decides that none of the parties was then in such possession as is referred to in Section 145 or if he is unable to satisfy himself as to which of them was then in possession of the subject of dispute, he may only attach the subject of dispute, and the competent court is to determine the rights of the parties thereto with regard to the person entitled to the possession thereof. In this matter before us when the learned Magistrate was unable to satisfy himself or to ascertain which of the parties was in actual possession, then he might attach the subject of dispute in case of emergency or in the circumstances mentioned there.
7. It has been brought to our notice that previously on 17-11-1975 he passed an order for attachment of the disputed land. Of course subsequently it was indicated that the B.D.O. Naihati, was appointed a Receiver with a direction to harvest the standing crops if necessary and deposit the sale proceeds in Government Treasury. We cannot, from the nature of the order, say that the disputed land was attached but for all practical purposes the learned Magistrate wanted for the best interest of the parties concerned to save the standing crops on the disputed land and passed orders upon the B.D.O., Naihati, for sale, if necessary and to deposit the sale proceeds. We think that this order cannot be said to be an order for attachment but an order in accordance with Sub-section (8) of Section 145 of the Cr.P.C. If the sale has already been effected, then certainly the force of the order has been exhausted and nothing can be done by the B.D.O. If however, as we have already indicated, the Magistrate finds it expedient for passing an order of attachment as mentioned in Sub-section (1) of Section 146 of the Cr.P.C. he is at liberty to do so. In any case, we find that the order referring the dispute as raised by the first party under Section 21(3) of the West Bengal Land Reforms Act is clearly illegal and without jurisdiction and the same is liable to be set aside.
8. In the result, the application succeeds. We set aside the order as to the direction for reference under Section 21(3) of the West Bengal Land Reforms Act. We, however, direct the learned Magistrate to consider, when he is unable to ascertain which of the parties in the proceedings is in actual possession, to see whether according to law the order of attachment as indicated in Sub-section (1) of Section 146 of the Cr.P.C. may be passed and he is to pass necessary order under Section 146 of the Cr.P.C. 1973.
9. The Rule is thus made absolute.
10. Let the records of the learned Magistrate be sent down at once. The learned Magistrate will dispose of the matter as soon as possible as indicated in our judgment.
Monoj Kumar Mukherjee, J.
11. I agree.