Lukhur vs State

M.P. Saxena, J.—It appears from the order of reference that proceedings u/s 145 Code of Criminal Procedure were pending before the S.D.M. Chandauli (West), Varanasi. In those proceedings the learned Magistrate made a reference to the civil court u/s 146 Code of Criminal Procedure. The learned Munsif returned the record with the finding that one party was in possession of two third portion and the other over one third portion. By this he meant that the parties were in joint possession. When the record reached the court of the learned magistrate he found that it was difficult to ascertain which portion of the property was in possession of one party and which portion was in possession of other. Therefore, he returned the record to the Civil Court for a finding on this point. It is against this order that a revision was made before the learned Sessions Judge, Varanasi, and he held that the learned Munsif had found both the parties in joint possession of the property. After this finding, the learned magistrate should have dropped the proceedings u/s 145 Code of Criminal Procedure. He had no power to make any reference to the Civil Court again. I am in agreement with the view of the learned Sessions Judge where the Civil Court arrives at a conclusion that the parties have been in joint possession of the property the learned magistrate has to decide the matter in its light and the proceedings u/s 145 Code of Criminal Procedure deserve to be quashed. He is not competent to make further reference to the civil court.

Therefore, the order dated 15-7-74 passed by the learned S.D.M. is quashed. Let the record be sent back to the learned Magistrate for disposal of the case in the light of the order of the Civil Court.